NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
Findings of Fact and Decision Case No. 228754
FINDINGS OF FACT & DECISION
City/State: 228754
Student’s Name: REDACTED (Hereinafter referred to as “Student”)
Date of Birth: REDACTED
District: REDACTED
Hearing Request by: PARENT (Hereinafter referred to as “Parent”)
School: REDACTED (Hereinafter referred to “School or Private school ”)
Actual Record Close: November 15, 2023
Hearing Officer: ANN MARQUEZ, ESQ.
Date of Decision: November 20, 2023
NAMES AND TITLES OF PERSONS WHO APPEARED
For the Student:
REDACTED, ESQ., Parent Representative
REDACTED, ESQ., Parent Representative
REDACTED, Director, REDACTED REDACTED
REDACTED, Speech Language Pathologist REDACTED, Lead Teacher, Behavior Analyst Candidate, REDACTED REDACTED, Occupational Therapist REDACTED, Operations and Finance Administrator,
REDACTED REDACTED
For the Department of Education:
REDACTED, ESQ., District Representative
x
REDACTED, a minor, by and through the Parents
Petitioner
DECISION AND ORDER
-against- Case No. 228754
NEW YORK CITY DEPARTMENT OF EDUCATION
Respondent. x
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on July 6, 2022, then an amended DPC filed on December 2, 2022, then another amended DPC filed on February 23, 2023. (Ex. C, B, A)1. The DPC alleged that the DOE failed 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 services during the for the 2022-2023 school year (school year at issue). The Parent is seeking an order for direct funding/tuition reimbursement for the Student’s tuition at the Private school , 15 hours per week of 1:1 home-based ABA services, and transportation for the 12-month school year at issue. (Ex. A).
On July 18, 2022, the undersigned Hearing Officer was appointed to the above referenced matter. Hearings went forward in this case on multiple dates (See, Tr.).[2]
The Parent representative presented opening statements, witnesses, documentary evidence, and a closing brief. The District representative presented opening statements, documentary evidence, and a closing brief.
Lists of the documentary evidence submitted are appended to this Order.
BACKGROUND
The Student is classified by the DOE with Autism (Ex. 1). The Student’s classification and eligibility for special education support and services are not in dispute. The Parents maintain that the DOE failed to offer the Student an appropriate program and placement for the 2022-2023 school year, and thus failed to offer her a free appropriate public education (“FAPE”). The Parents
1 Exhibits shall be referred to as follows: “Alphabet Letters” for Parent Exhibit; “Numbers” for the District’s Exhibits; and “Roman Numerals” for the Impartial Hearing Officer’s exhibits.
seek an order for direct funding/tuition reimbursement for the Student’s tuition at the Private school , reimbursement for ABA services, and transportation for the school year at issue. (Ex. A).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The IDEA is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded free appropriate public education (“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 Individualized Education Plan (“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.” 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 Parent 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).
Under the FAPE analysis, the public school and/or Local Education Agency (“LEA”) has the burden of persuasion and the burden of production to demonstrate that the disabled child was provided a FAPE as set forth in the IDEA.
Here, the District representative solely submitted documentary evidence.
Documentary evidence, unsupported by any testimony, is not sufficient to establish that a school district offered a student a FAPE. There was absolutely no explanation, let alone a cogent and responsive explanation, for the CSE’s program and placement recommendations.
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.
Based upon the foregoing, upon default, the District failed to demonstrate that the school district offered the Student a FAPE for the 2022-2023 school year. Therefore, the Student was denied a FAPE for the 2022-2023 school year, which is the first prong of the three Burlington/Carter criteria for public funding tuition related to unilateral placement.
THE UNILATERAL PLACEMENT OF THE CHILD IN THE PRIVATE SCHOOL WAS
APPROPRIATE -TUITION REIMBURSEMENT
The IDEA specifically contemplates that "when a public school, Local Education Agency (“LEA”) fails to provide a FAPE and a child's Parent place the child in an appropriate private school without the school district's consent, a court may require the district to reimburse the Parent for the cost of the private education." Forest Grove, 129 S. Ct. at 2488; see 20 U.S.C. § 1412(a)(10)(C).
When a state receiving federal funding for special education fails to give a disabled child a FAPE under the IDEA, the child's Parent or guardians may unilaterally place the child in an appropriate private school and seek tuition reimbursement from the state. See Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12 (1993) ("Carter"); Sch. Comm. of Burlington, Mass. v. Dept. of Educ., 471 U.S. 359, 369-70 (1985) ("Burlington").
Under the Burlington-Carter test for tuition reimbursement, plaintiffs are entitled to reimbursement of private school tuition if (1) the IEP was not "reasonably calculated to enable the child to receive educational benefits," (2) "the private schooling obtained by the Parent is appropriate to the child's needs," and (3) equitable considerations support the plaintiffs' claim. T.Y., 584 F.3d at 417 (citation omitted);see also Forest Grove, 129 S. Ct. at 2496 ("Parent are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA and the private school placement was proper under the Act. And even then, courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant. . .." (citation omitted)).
Under New York law, the burden of persuasion falls upon the Parent to show that their unilateral placement at a private school was appropriate.3 The Second Circuit cautioned that under a unilateral private placement a parent need only demonstrate that the placement provides educational instruction specifically 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. [4]
The standards for determining whether a private school placement is "appropriate" under the IDEA closely resemble, but does not mirror, the standards for assessing the adequacy and appropriateness provided by the State education for proposed public placement.[5] "[T]he test for the Parent ' private placement is that it is appropriate, and not that it is perfect." Gagliardo, 489 F.3d at 115 (citation omitted). Ultimately, the standard to be applied is to determine whether "[the] unilateral private placement ... provides education instruction specifically designed to meet the unique needs of a handicapped child." Id. [10]
Here, the record demonstrates the Student was classified by the DOE with Autism. (Ex. 1, F, H). Further, the Student’s neuropsychological evaluation dated March 2021, by REDACTED, M.D., Professor of Clinical Pediatrics REDACTED of Medicine, reported that the Student is a nonverbal, REDACTED-year-old, with a diagnosis of Autism Spectrum Disorder (ASD). (Ex. 4, E). He presents with significantly delayed cognitive, language, and fine motor skills. His behavior is highly self-directed; his attention is poor. He engages in a very high rate of self-stimulatory behaviors, including stereotypical hand movements and mouthing/chewing on objects. When frustrated, the Student engages in self-injurious (hitting his chin with the back of his hand; scratching his face and near his eyes) and physically aggressive behavior towards others (hitting examiner's face). Id.
At home, the Student is prone to wandering, and requiring a GPS tracking device in case of elopement. He has a severe Sensory Integration Disorder, which contributes to nearly constant "stimming," fecal smearing, and mouthing/chewing objects. The Student’s current behavior indicates a severe regression since the time of his last assessment. In terms of severity of ASD symptoms, he now presents as Level 3 (Requiring Very Substantial Support). Id.
Dr. REDACTED further diagnosed the Student with ASD-Level [3], with an accompanying Intellectual Impairment; with accompanying Language Impairments, expressive Language Disorder, receptive Language Disorder, pragmatic Language Disorder; with associated Neurodevelopmental Conditions, Attention Deficit Hyperactivity Disorder (combined type), Fine Motor/Graphomotor Deficits, Sensory Integration Disorder, Stereotypic Behaviors, Self-injurious Behaviors, and Mood Instability. (Ex. 4-5, E-6).
Based upon the results in the neuropsychological evaluation, Dr. REDACTED recommended that the Student requires and should remain in a 12-month program, with therapies provided with the same frequency and duration for seven days each week. Id. Additionally, the Student requires placement in a full-time Applied Behavior Analysis (ABA 1:1) program for 30 hours per week. Id
For home-based, Dr. REDACTED reported that the Student requires 20 hours of home-based ABA weekly. These sessions are essential to address his disruptive behaviors at home. His home ABA program should be unified with what he is learning in school. Id The Home-based ABA team should conduct a Functional Behavior Assessment (FBA) to determine what antecedents triggers the Student’s aggression at home, and based on such data from the FBA, the home ABA team can develop a Behavior Intervention Plan (BIP) to address such behaviors. Id
For parent training, Dr. REDACTED reported that the Parent should be trained in home-based methods in the presence of the home ABA team to consistently and effectively implement such methods when the ABA therapists are not present. Id
For Related Services: Dr. REDACTED reported that the Student requires occupational therapy 5x 60 minutes weekly (1:1) in a sensory gym for sensory integration therapy along with all aspects of fine motor and graphomotor skills. The occupational therapist should develop a new "sensory diet" of activities. Id. For speech and language therapy, the Student requires 5x 60 minutes sessions per week, individual 1:1, with an experienced Prompts for Restructuring Oral Muscular Phonetic Targets (PROMPT)-trained therapist in all aspects of receptive and expressive language skills. Oral motor therapy should also be incorporated into his sessions to address the Student’s constant chewing. Oral motor therapy should be integrated with the Student’s ABA school and home teams. Id.
For Assistive Technology Device: Dr. REDACTED reported that the Student’s school, home-based ABA therapist, and Parent should receive training in the use of the Student’s augmentative alternative communication (AAC) device and Proloquo2Go program, to ensure continuous and effective use of such device. Id.
Dr. REDACTED further reported that the Student requires a collaborative monthly interdisciplinary approach that should include monthly meetings with the Student’s teachers, ABA therapists, and related service providers, to review his progress and make any necessary changes/modifications to his program. All the therapists involved in the Student’s therapeutic program should incorporate a unified behavioral approach as developed in his BIP to address his maladaptive behaviors. Id.
For the 12-month school year at issue, the record demonstrates the Student was enrolled in the Private school , and he was provided with services, in a small class size of 3-4 students with instruction provided by therapists that consisted of a 1:1 ABA therapy, and related service providers. (See generally, Tr. August 17, 2023, September 11, 2023, September 14, 2023, October 13, 2023; Ex. E, F, L, M, N, O,P, Q, R, S, T, U, V, W).
Based upon the Private school ’s own program description, the Private school is a full-time, independent, not-for-profit school dedicated to the education of children with autism spectrum disorders (ASD). (Ex. L). The Private school utilizes “The Integrated Model," for teaching techniques, which includes ABA, speech-language therapy, Occupational therapy, sensory integration training, music therapy, and play therapy Id. All therapy is provided to students on an intensive one to one basis, with a collaborative approach to include parent training to expand skills taught at school continue at home. Id.
The Students’ educational curriculum plan, from 2022-2023, reported that the Student attends the private school that uses an educational model based on Applied Behavior Analysis (ABA) and uses a 1:1 teacher to student ratio. He is in a classroom with three peers. His classroom is staffed with a teacher for each student in addition to a speech therapist working in the classroom throughout the day. He receives speech therapy, occupational therapy, and music therapy. (Ex. O-1).
The record vaguely demonstrates the qualifications, specifically the certifications and licensing for the “teachers” at the Private school . REDACTED, the Educational Director at the Private school provided testimony. (See generally, Tr. August 17, 2023, 106-125, Ex. O,Q, S, T, W). Ms. REDACTED testified that each classroom has approximately anywhere between three and five students. Each classroom has a “lead teacher” that “has more experience, more towards their BCBA or completion in applied behavior analysis master's program and working towards a BCBA.” (Tr. August 17, 2023, 99-100, 112-113). In addition, to the “lead teacher” there is one “teacher” for each child, and a speech and language pathologist and a behavioral assistant would be in the classroom.
Id. For each classroom, there is an assigned occupational therapist. Id. Ms. REDACTED further testified that most of the staff comes with some form of education in applied behavior analysis, psychology, special ed. (Tr. 101).
Ms. REDACTED further testified about the educational component at the Private school, the Student was provided with an ACE assessment, data is tracked and gathered to assess his behavioral goals, such data is uploaded to the Autism Curriculum Encyclopedia (ACE) online system, and analyzed to monitor the student’s progress. (Tr. 98, 103-104). Additionally, Ms. REDACTED testified that the Student’s schedule was "just a snapshot" of what the student's day looked like, the minimum number of services. (Tr. 115, Ex. M). She explained that the schedule did not accurately reflect what the Student may be working on, since the Student may be working on his IEP goals, speech therapy goals, or occupational therapy goals. (Tr. 115-117).
However, the record clearly demonstrates at the very least, a basis of services the Student required as established in his neuropsychological evaluation dated March 2021. (Ex. E). Yet, the record demonstrates the Private school delayed for several months the implementation of his occupational therapy services and a behavioral intervention plan. Ms. REDACTED further testified that the Student’s evaluations for Speech language Therapy and Occupational therapy are conducted apart from the ACE assessment. (Tr. 107).
Upon further review of the exhibits, the Student’s Speech-Language Therapy evaluation dated September 2022, reported the Student is a REDACTED-year-old male that attends the private school, which employs applied behavior analysis (ABA) in its service and curriculum implementation. (Ex. R-1). He receives individualized instruction throughout the school day to acquire, maintain and generalize new skills, 1:1 speech therapy for 45-minute sessions five days a week. He began attending the Private school at the beginning of the new school year in July. He previously attended another ABA based school. The Student has a clinical diagnosis of Autism Spectrum Disorder and a secondary diagnosis of childhood apraxia of speech (CAS). Id.
However, even though required, the Student was not provided with occupational therapy services from July 2022 to October 2022 at the Private school. (Ex. 4, E). Further, the Student’s Occupational Therapy evaluation was not conducted until February 2023, even though he enrolled in July 2022. (Ex. V-1, K-3). The occupational evaluation reported that the Student is a REDACTED-month year old with a diagnosis of autism spectrum disorder (ASD). The OT evaluation was completed in order to assess the Student’s current level of performance in the areas of gross motor skills, fine motor skills, sensory processing and regulation, and self-care skills. The Student is part of a 3-student classroom where he receives 1:1 academic instruction with a focus on Applied Behavior Analysis (ABA). In addition, the Student receives individual occupational therapy 5 times a week for 45 minutes and individual speech therapy 5 times a week for 45 minutes. (Ex. V-1).
Further, the Student’s behavior intervention plan was put not put into place until the beginning of fall 2022, even though he started in July 2022. (Tr. 107). Ms. REDACTED explained the basis for such delay was to permit the Student to “acclimate and transition to the new school environment.” (Tr. 108).
REDACTED, Speech Therapy Director at the Private school provided testimony. (See generally, Tr. September 11, 2023). Ms. REDACTED worked with students diagnosed with ASD that need PROMPT-based SLT and have motor speech delays. (Tr. 139). Ms. REDACTED supervises the Private school’s speech provider that works with the Student. (Tr. 141). The Student is diagnosed with Speech Apraxia and requires motor-based support. He is a multimodal communicator, and his goals focused on expanding his receptive and expressive understanding, motor speech, and syllable shaping and he used an Augmentative communication device with Proloquo2go for the school year at issue. (Tr. 144-145). Ms. REDACTED testified that the Student made progress in identifying his wants/needs, verbalizing more, and following directions. (Tr. 147).
Dr. REDACTED reported the Student required a wrap-around program of services that included a placement in a full-time Applied Behavior Analysis (ABA 1:1) program for 30 hours per week, a 12-month program, with therapies provided with the same frequency and duration, . (Ex. 4, E). Further, Dr. REDACTED reported the student required home-based ABA therapy, up to 20 hours of home-based ABA weekly for a 12-month school year. These sessions are essential to address his disruptive behaviors at home. His home ABA program should be unified with what he is learning in school. Id. Additionally, the Home-based ABA team should conduct a Functional Behavior Assessment (FBA) to determine what antecedents triggers the Student’s aggression at home, and based on such data from the FBA, the home ABA team can develop a Behavior Intervention Plan (BIP) to address such behaviors. Id
Here, the record is devoid of any evidence to demonstrate the Student was provided any home-based ABA services for the school year at issue, and the educational benefit for such services if it were incorporated into his program. The Student was not provided with the wrap-around service program as recommended by his neuropsychological evaluation to make meaningful progress. (Ex. 4, E). He required a variety of individualized support and evidenced based strategies, both at school and home-based, including parent training, all in a collaborative manner to consistently implement his ABA methodologies, and enhance the Student’s utilization of his ACC device to ensure his academic and social/emotional progress. Id. Based upon the foregoing, the Parent’s claim for home-based ABA services are denied.
However, in light of the referenced inconsistencies, the record demonstrates that the Student made some progress at the Private school for the school year at issue. (See generally, Tr. August 17, 2023, September 11, 2023, September 14, 2023, October 13, 2023; Ex. E, F, L, M, N, O,P, Q, R, S, T, U, V, W). The Private school provided the Student with ABA and related services to address his interfering behaviors. He was placed in a specialized school that provided ABA in its service and tailored curriculum implementation. (Ex. O, P, Q, R, S, T, U, V, W). The program provided tailored instruction for the Student’s unique needs, built into the daily modified curriculum based upon ACE data, to support the Student’s access learning. (Ex. O, P, Q, R, S, T, U, V, W).
By the end of the school year at issue, the Student demonstrates some progress in that his interfering behaviors decreased. The Student made progress in his receptive and expressive language goals. (Ex. O-4, O-7). He is now able to identify various new common items (in pictures) within a field of 6 or more across a variety of categories (body parts, furniture, clothing, etc.). He has also made progress sorting items by their category, (I.e., clothing, furniture, school supplies, kitchen supplies, etc.). He maintained his ability to respond to his name being called, presents his ID bracelet containing his name, phone number and allergies when asked questions such as “Who are you?”/ “Are you lost?” He made progress in his ability to follow instructions, in responding to two-step verbal directions where the first step takes more time to complete and has also mastered the ability to follow sets of two-step associated directions to complete routine tasks. His response to the teacher’s instructions has increased significantly, and he no longer requires physical redirection or multiple verbal reminders in order to complete both steps. Id. For expressive language goals in his communication skills using his ACC device, he requests items that are not present, such as different preferred food and drink items. (Ex. O-7). When such items are not available on his device, he can request a close alternative and gestures toward such item. Id. The Student made progress in identifying 10 new actions in multiple presentations (within pictures, videos, and occurring within his environment). Further, he has expanded his expressive vocabulary to include 10 new body parts (both on himself and others). Id.
The Student made progress in his sight word recognition and reading skills. He has mastered the ability to identify his first and last name when presented within an array of other words/names. He is currently working on identifying his full name (first and last together). He still requires minimal support from instructors in order to accurately respond.
Further, he has been working on identifying numbers. He made progress in his ability to identify 1-3 and is currently working on 4, 5, and 6, but still requires instructor support. (Ex. O-12).
The Student decreased his frequency of targeted maladaptive behavior. (Ex. O-18). There has been a significant reduction in elopement throughout the school day, however, data indicates that there is an increase in elopement when the Student is working with/interacting with less familiar individuals within his classroom. Id. Elopement still occurs at a significantly lower frequency. Id.
Overall, the record demonstrates that at the Private school the Student was provided with an individually tailored program for his unique needs, and the Student made progress for the school year at issue. The Student was provided with both small group instruction and one-on-one support, a small class size, opportunities for social-emotional growth, and made progress for the school year at issue. (See generally, Tr. August 17, 2023, September 11, 2023, September 14, 2023, October 13, 2023; Ex. E, F, L, M, N, O,P, Q, R, S, T, U, V, W).
Based upon the foregoing, the record is devoid of any evidence that the Student was provided with home-based ABA, as part of his program for the school year at issue, up to 20 hours per week of home-based ABA. Id. Therefore, the Parent’s claim for such relief must be denied. (Ex. A, B, C).
Based upon the foregoing, by the preponderance of the evidence, the Parent has met its burden to demonstrate that the Student’s unilateral placement and services are appropriate, and provided the Student with educational instruction specifically designed to meet the unique needs of this Student.
BALANCING THE EQUITIES
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 Parents cooperated with the CSE and provided the DOE with appropriate and timely written notice. (See generally, Tr. October 13, 2023; Ex. D).
Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in so doing. Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required." 6Carter, 510 U.S. at 16 (citation omitted).
Here, the parent filed the initial DPC claim for tuition on July 6, 2022. (Ex. C). The parties executed a pendency agreement on August 19, 2022, which solely references services for the Student. (Ex. IHO I). Thereafter, the Parent signed the enrollment contract with the Private school, which is a fee for service agreement, on September 9, 2022. (Ex. J). Notably, the enrollment contract only references services, and there is no reference to any tuition costs. Id. Additionally, the Parent testified that she thought that the payment for the Student’s services would be covered under pendency, since in a prior school year it was billed in that manner. (Tr. October 13, 2023, 220, Ex. IHO I).
Significantly, the terms of the agreement do not reconcile to the timeline of the events as demonstrated on the record. Specifically, the parent signed the agreement on September 9, 2022, well after the term for the cancellation clause had expired, which required such cancelation prior to July [6], 2022. (Ex. J-2). Further, the agreement references an addendum (Appendix A) indicating the services the parents agreed to, and then references a copy of the rate sheet for such services in Appendix B. (Ex. J-1, J-5). It is glaringly significant; a copy of the rate sheet was not submitted into the record, similar to the hearing record in SRO-23-139 . Additionally significant, the Private school’s service affidavits are notarized, starting on October 25, 2022 for services rendered in July 2022, and all the affidavits demonstrate various hours of services charged per month with the rates for such services, from July 2022 through May 2023, with the costs for such services ranging from $14,695.00 to $46, 735.00. (Ex. K).
REDACTED, Operations and Finance Administrator for the Private school testified that the in prior school years, 2021-2022, the school had a tuition-based model, and the costs for such tuition was approximately $130,000.00 (Tr. October 13, 2023, 249). For the 2022-2023 school year, the school changed from a tuition-based model to a fee-based service model, with now a total cost of services for $375,126.76. (Ex. Y). This increase in the cost of the student's educational programming is more than doubled.
Based upon the foregoing, the record demonstrates that the enrollment agreement for the services charged at the Private school are unreasonable. The agreement regarding the rates for such services as referenced in the contract was not submitted into the record. (Ex. J-1). The only reference for services charged stems from the affidavits for such services, notarized in October 2022 for services rendered in July 2022, and fluctuates in costs ranging from $14,695.00 to $46, 735.00. (Ex. K). The parent testified that she thought pendency would cover the costs for the Student’s services since this is how it was billed for the prior school year, and the parties agreed to the pendency terms in August 2022, prior to the executed enrollment agreement in September 2022. (Tr. October 13, 2023, 220, Ex. IHO I). Further, at the Academy the Student received services in July 2022, months later the parent executed an enrollment agreement in September 2022, and the agreement was executed months after the cancellation clause had expired. (Ex. J-2).
Additionally, the addendum indicated that the student would receive up to 31 hours per week of direct ABA special education services; up to 10 hours per week of ABA supervision; up to 2.25 hours per week of related services supervision; 3.75 hours per week of OT; and 3.75 hours per week of speech-language therapy, with all services being provided five days per week (Ex. J-5). Based upon the service affidavits, the Student did not receive any occupational therapy from July 2022 until October 2022, even though he required such services. (Ex. 4, E, K-3, ). Moreover, the Student was provided Orton-Gillingham services, which was inserted into the affidavits for January 2023-February 2023, then ended. (Ex. K-7, K-8).
Based upon the foregoing, the enrollment agreement was vague and indefinite, the terms for such agreement was unenforceable in that the cancellation clause expired prior to the execution of the agreement in September 2022, there is no rate schedule provided for the hearing record, and the fee for services model was not credible or reasonable.
The record supports a reduction of the award for tuition/fee for services on equitable grounds since the enrollment contract was vague and indefinite, and unenforceable. The Student required the following services: up to 31 hours of direct ABA special education services; up to 10 hours per week of ABA supervision by BCBA and/or LBA; 3.75 hours per week of OT; and 3.75 hours per week of speech-language therapy, with all services being provided five days per week (Ex. 4, E, J-5, K, IHO I).
Therefore, the Parents did not meet the third of the three Burlington/Carter criteria for full tuition direct funding/tuition reimbursement for the Student’s tuition for the school year at issue. However, the Student did require ABA services, Speech Language Therapy, Occupational Therapy, as the record demonstrated in the private school agreement, neuropsychological evaluation, and in his pendency agreement. (Ex. J-5, E, 4, IHO I).
Based upon the foregoing, as to the Burlington/Carter criteria, the Parent is entitled to the following services for a 12-month school year as follows: up to 31 hours of direct ABA special education services; up to 10 hours per week of ABA supervision by a BCBA and/or LBA; 3.75 hours per week of Occupational Therapy by a licensed provider; and 3.75 hours per week of speech-language therapy by a licensed provider, and the DOE will directly fund such services based upon market rate for the Student’s 2022-2023 school year.
Based upon the foregoing findings of fact and conclusions of law herein,
IT IS HEREBY ORDERED the following:
• The DOE failed to meet its burden of proof to demonstrate that the Student was provided a FAPE for the 2022-2023 school year. Thus, the Student was deprived a FAPE for the 2022-2023 school year; • The Parent has met its burden and demonstrated that the unilateral placement of the Student in the Private school for the 12-month, 2022-2023 school year was appropriate and provides an education instruction that is specifically designed to meet this Student’s unique needs; and • The record demonstrate the support for a reduction of the award for tuition on equitable grounds since the enrollment contract was vague and indefinite, and only referenced a fee for services. Upon the DOE’s receipt of the Private school’s invoice, supporting documents, and the Student’s attendance records for the 2022-2023 school year, • The DOE is to directly fund the Student’s services at the private school, up to 31 hours of direct ABA special education services; up to 10 hours per week of ABA supervision by a BCBA and/or LBA; 3.75 hours per week of Occupational Therapy by a licensed provider; and 3.75 hours per week of speech-language therapy by a licensed provider; and • Such services will be paid at market rate capped at the lowest rate paid to such providers by the DOE’s Impartial Hearing Implementation Unit within the last 12 months.
DATED: November 20, 2023
Impartial Hearing Officer-Ann Marquez
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’s Exhibits:
1 Individualized Education Plan 11/24/21 29
2 Prior Written Notice 5/26/22 6
3 Mandated Three-Year Reevaluation 11/16/2021 3 4 Neuropsychological 3/26/2021 8
5 Service Records 7/15/2022- 30
4/28/2023
Parent’s Exhibits:
Second Amended Due Process Complaint with outgoing email A 02/23/23 20 and IH Confirmation
Amended Due Process Complaint with outgoing email and IH
B 12/02/22 13
Confirmation
Due Process Complaint with outgoing email and IH Confirmation
C 07/06/22 12
Ten Day Notice with outgoing email and Email Confirmation
D 06/21/22 5
E 03/26/21 Psychological Evaluation from REDACTED Center 8
F 11/24/21 DOE Individualized Education Plan 29
G 05/26/22 Prior Written Notice and School Location Letter 13
H 1/25/23 DOE Individualized Education Plan 25
I 02/17/23 Parent letter rejecting the IEP 4
REDACTED Enrollment Contract with DocuSign Certification
J 09/12/22 8
July 2022 –
K REDACTED Services Affidavits 11
May 2023
L 2022-2023 REDACTED Program Description 1
M 2022-2023 Current Class Schedule 1
N July 2022 – Student Attendance Record 1
June 2023
O 2022-2023 REDACTED Educational Curriculum Plan with Q4 scores 18
P 2022-2023 REDACTED Behavior Intervention Plan 10
Q 2022-2023 REDACTED ABA Summary 53
R Sept 2022 REDACTED Speech and Language Evaluation Report 12
S 2022-2023 REDACTED Speech and Language IEP with Q4 scores 7
T Dec. 2022 REDACTED Speech and Language Progress Report 8
U May 2023 REDACTED Speech and Language Evaluation Report 19
V Feb. 2023 REDACTED Occupational Therapy Evaluation 14
W 2022-2023 REDACTED Occupational Therapy IEP with Q4 Scores 3 X 2022 Parent’s Tax Return - 1040 2 Y 8.11.23 Annual Service Affidavit - Notarized 40
IHO’s Exhibits
I. Pendency Agreement 8/19/2022 2
II. District’s Closing Brief 11/2/2023 17
III. Parent’s Closing Brief 11/2/2023 14
Footnotes
[2] Reference to the Transcript shall be referred to as “Tr.”
[3] See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 58 (2005)
[4] Gagliardo, 489 F.3d at 115; C.B. v. Garden Grove Unified School Dist., 635 F. 3d 1155, 1159(9th Cir.).
[5] 34 C.F.R. 300.14 8©; See also Carter, 510 U.S. at 14.
[6] Bch. Comm. of Burlington v. Dept. of Educ., 471 U.S. 359-556; Forest Grove Sch. Dist. V. T.A. 557 U.S. 230; and A.C., 553 F.3d at 171