NY IHO #229050: New York City... | Special Education Law

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CASE NUMBER: 576365 - NYC: 229050

FINDINGS OF FACT AND DECISION

Student Name: STUDENT

Parent Names: PARENT

Case Number: 229050

Birthdate: REDACTED

District: REDACTED

Hearing Requested By: Mother

Date of Request: 7/18/2022

Date(s) of Hearing: 09-16-22; 09-07-22, 8-29-22;

8-09-22

Actual Record Closed Date: 09-19-22

Date of Decision: 09-29-22

Hearing Officer: Vandana Chak

Appearing for the Parent: REDACTED, Esq.

Appearing for the District: REDACTED, Esq

STATE EDUCATION DEPARTMENT OF NEW YORK

X In the Matter of a Complaint Pursuant to Part 200 of the Case No.: 229050 Regulations of the Commissioner of Education Regarding,

STUDENT1, a minor, by and through his

Parent(s) redacted, FINDINGS OF FACT, CONCLUSIONS OF LAW

Petitioners AND DECISION

-against-

NEW YORK CITY DEPARTMENT OF EDUCATION,

Respondent.

INTRODUCTION AND PROCEDURAL BACKGROUND

• This matter came before the hearing officer by way of a due process complaint (“DPC”) filed by the Parent on or about July 18, 2022 (Parent Exh. A & IHO Ex. II), and came before the hearing officer on July 26, 2022. (IHO Exh. I). No written response was provided by the Respondent, the New York City Department of Education (hereinafter “DOE” or “Respondent” or “District”). A pre hearing conference was held in this matter on August 9, 2022. Final hearings were held on September 9, 2022 and September 16, 2022.
• Parent’s submitted discovery on August 14, 2022 for the pendency hearing scheduled on August 19, 2022. (IHO Ex. III). Pursuant to an unappealed Findings of Fact and Decision dated December 31, 2021 in Case No. 209760 (Parent Ex. B), the “December 2021 FOFD”, District entered into a pendency agreement in this matter on August 17, 2022. (IHO Exhibit IV).

1 Personally, identifiable information is attached as a cover sheet to this decision and must be removed prior to public distribution.

• One request to establish the compliance date was granted (IHO Ex. V). The record was closed on September 19, 2022.

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 the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. § Part 200.

BACKGROUND

• Student is REDACTED years old child and is classified as a student with Autism Spectrum Disorder. Student is primarily nonverbal and points and gestures to communicate his needs. He is mandated for a twelve-month school year. Student is bilingual and is attending a private school, the SCHOOL (“SCHOOL”).
• The Student has been the subject of two prior administrative proceedings. As part of a prior impartial hearing for claims arising for the 2018/2019, 2019/20 and 2020/2021 school years, pursuant to an unappealed Findings of Fact and Decision in this Case #207252, dated November 26, 2021, the “November 2021 FOFD” (Parent Ex. GG), SCHOOL was found to be an appropriate placement for Student’s unique needs for the 2020-2021 school year and parent obtained an order granting tuition reimbursement for the unilateral placement of Student at SCHOOL, and for independent educational evaluations (IEEs) of the student consisting of a bilingual neuropsychological evaluation, bilingual speech and language (“SLT”) evaluation, bilingual occupational therapy (“OT”) evaluation, bilingual physical therapy (“PT”), bilingual assistive technology (“AT”) evaluation, bilingual Applied Behavior Analysis (“ABA”) skills assessment, bilingual functional behavior assessment and corresponding behavior intervention plan. (Parent Exs. H-M).
• Pursuant to second unappealed Findings of Fact and Decision dated December 31, 2021 in Case No. 209760, (Parent Ex. B), the “December 2021 FOFD”, SCHOOL was found to be an appropriate placement for Student’s unique needs for the 2021-2022 school year and claim for reimbursement of tuition fee was granted.

Parent’s Position

• Parent is seeking 1) direct funding of SCHOOL Tuition for failure by District to provide a FAPE to student for the 2022-2023 school year, 2.) funding of the cost of transportation for 2022-2023 school year, and to and from home and school and any ordered compensatory service provider outside student’s home, 3) order that CSE (a) hold an IEP meeting, and be ordered to (i) award 10 hours a week of home based ABA provided by or closely supervised by a BCBA, (ii)) recommend an AT device and applications as recommended by independent assistive technology evaluator (iii) recommend 2 hours of parent counseling and training (“PCAT”) services per week, and 4) funding of compensatory services recommended by independent evaluators.
• The Parent, SCHOOL’s program director REDACTED, and independent educational evaluators REDACTED, REDACTED, REDACTED, REDACTED, and REDACTED provided testimony at the hearing.
• Parent submitted discovery which is listed and appended to this decision.

District’s Position

• The District argues that although it concedes a denial of a FAPE for the 2022-23 school year, the parent is not automatically entitled to all of the requested reliefs. District argues that in the facts of this case compensatory education is not available as an additional or an alternative remedy when Parent is seeking reimbursement for the costs of a unilateral placement for the 2022-2023 school year and when Student has been in unilateral placement for 2021-2022 school year as well as for latter half of 2020-2021 school year.
• The District argues that Parent’s relief seeking to order the CSE to make decisions in its meeting amounts to circumventing the statutory process pursuant to which the CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing the student's needs.
• The District argues that SCHOOL’s program itself is equivalent to 25 hours a week of ABA therapy which more than compensates for Parent’s any claim for compensatory ABA.
• District submits its AT evaluation dated November 5, 2021, that reviews Student’s needs for an appropriate assistive technology. (District Ex. 1) and, a bilingual psychoeducational evaluation dated February 10, 2020 (District Ex. 2).

ISSUES

• On the tuition reimbursement claim as construed by New York Education Law §404(1)(c): “(1) the DOE must establish that the student’s IEP actually provided a FAPE; should the DOE fail to meet that burden, the parents are entitled to reimbursement if (2) they establish that their unilateral placement was appropriate and (3) the equities favor them,” REDACTED 725 F.3d at 135.
• Whether Student is entitled to a compensatory award as claimed?
• Whether Student is entitled to transportation and other reliefs claimed?

FINDINGS OF FACT

• It is undisputed that no IEP was developed for Student for the 2022-2023 school year and no placement was offered to Student by District for 2022-2023 school year. District did not defend their FAPE obligation for the 2022-2023 school year (T. 30). District rested its case on prong 1 of the Burlington-Carter2 test and did not provide any witnesses or documents as it relates to tuition reimbursement claim. Therefore, District had denied Student a FAPE.
• Student is unilaterally placed at SCHOOL since January 4, 2021. (Parent Ex. GG-6).

Pursuant to both the November 2021 FOFD (Parent Ex. B-12) and the December 2021 FOFD (Parent Ex. GG), SCHOOL was found to be an appropriate placement for Student’s unique needs from the date of unilateral placement through to the end of 2021-2022 school year and no finding of gaps in the program or placement at SCHOOL were made. (Parent Ex. GG:12-13). No order for a compensatory education services award is made in these two prior FOFD’s.

• Parent’s testimony is that Student received ABA instruction, through Early Intervention. (T. 31, 42). An independent bilingual Speech and Language Evaluation conducted on December 11, 2021 under its sub-heading Educational History and Record Review, states that Student “received early intervention ABA, occupational and speech therapy. He attended Parson’s Preschool (10:1:2 ratio) and received more intense ABA instruction, speech therapy and occupational therapy." (Parent Ex. H-3). Parent reports that Student received ABA, OT and SLT in early intervention. (Parent Ex. H-3). Parent also reports that Student received PT in early intervention due to his poor foot posture. (Parent Ex. J-1).

2 Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 36970 [1985].

• At SCHOOL, Student is placed in the BASE program (T. 58 & 59; Parent Ex. O-1) which is a full time ABA program with 25 hours per week of full time, individual ABA support. (Parent Ex. N-16, M-2, S-1, E, W-1, L-9). The BASE program utilizes ABA methodologies to facilitate skill development.
• I find that it is for a period of three to four months from the start of Kindergarten at REDACTED, a District 75 school, (Parent Ex. I-2), where student was placed pursuant to a March 30, 2020, IEP, the“2020-21 IEP”, (Parent Ex. C-1), with implementation date of September 1, 2020, until January 4, 2021 when Student was unilaterally placed at SCHOOL, that ABA therapy as a methodology was not demonstrably used to address the academic, social, and behavioral management needs of Student. During this period, it seems remote learning was in place. (Parent Ex. N-4). Parent reports that PT was reduced to once weekly and was inconsistent. (Parent Ex. J-1).
• Evidence on record demonstrates that Parent had Student evaluated on November 23, 2020 by child neurologist Dr. REDACTED who recommended “resumption of ABA therapy” to Student in the range of 10-20 hours a week. (see Parent Ex. G-1: T. 43). Within 40 days of this diagnosis Parent had moved Student to SCHOOL because as Parent’s testimony explains REDACTED School did not provide ABA at that time. (T. 44).
• Each independent evaluator is unclear and unspecific on how they calculated the period of a denial of a program for their recommendation for compensatory services. (T.100; T. 96-97; Parent Ex. J-12; T. 84; T. 126-7; T. 164-5). The DPC does not state for what period the compensatory award is being sought. With respect to Parent’s claim for compensatory ABA therapy services the DPC alleges the District failed to recommend ABA services after Student graduated from early intervention. (Parent Ex. A-4). This is supported by Parent’s testimony. Independent evaluator REDACTED’ testimony explains the two year period of her calculation for speech and language compensatory services as the period “after pre-school into DOE” (T. 96- 97), which is a duration of four months prior to joining SCHOOL. The DPC alleges that in the 2020- 2021 school year when Student entered Kindergarten, ABA therapy was not recommended or available at the District school. (Parent Ex. A-4). During the 2020-2021 school year Student had been unilaterally moved to SCHOOL on January 4, 2021.
• The program director at SCHOOL, in her testimony, states that the BASE program Student is in at SCHOOL uses ABA methodologies across with him in all settings, the classroom, in his related services, in his specials, such as art, gym, and music. (T. 60-64). The program director’s testimony is that the Student has a behavior intervention plan that addresses his behaviors, they are addressing his social skills deficit, a team of teacher, related service providers, teacher assistant and BCBA meet every four to six weeks to assess progress (T. 60- 64). Student has a one to one paraprofessional. (T.80). At SCHOOL the program director testified “He does require ABA all day across all settings and the discrete trials in the classroom to learn academics.” (T. 68). The program director’s testimony is that Student has made a “lot of progress at SCHOOL in all areas” which includes academics, his goals, fine motor skills, maths, sequencing, vocabulary, OT, PT and Speech. (T. 65-66). Dr. REDACTED the independent physical therapy evaluator describes SCHOOL’s program in generalizing of skills with the example of PT working with Student in conjunction with Student’s para or ABA therapist. (T. 80).
• The independent neuropsychologist opined in her report recommendation that SCHOOL appears to be meeting Student’s educational needs. (Parent Ex. N-16). Behavior Analyst in her ABA Skills Assessment Report opines that SCHOOL meets Student’s educational needs and has been able to provide proper behavioral intervention to reduce his maladaptive behaviors in his academic environment. (Parent Ex. M-11). The independent occupational therapist opined in her report that the OT goals written by SCHOOL are appropriate and meet student’s needs. (Parent Ex. H-12). Parent testimony is that Student has improved in his communication, daily living and academic skills since he began attending SCHOOL. (T. 49). The independent speech and language pathologist observes in her report that Student “is making steady progress towards goals with minimum tantrums and reduced self injurious and aggressive behaviors.” (Parent Ex. H-12). She observes that Student displays significant speech delays and SCHOOL is addressing many of his sensory needs and providing him with an ACC system for him to communicate his needs and wants. (Parent Ex. H-12). In her clinical opinion the goals written by SCHOOL are appropriate and meet his needs. (Parent Ex. H-12).
• Parent submitted into evidence the annual reviews for each of the services provided by SCHOOL to Student in the last academic year which contain recommendations for a program for the current 2022-2023 school year. (Parent Exs. O-R). The annual review by SCHOOL’s licensed speech and language pathologist dated August 18, 2022 (Parent Ex. O) recommends continuing SLT 4 times a week for 30 minutes 1:1, as did the independent speech and language evaluator in her testimony (T. 96) and evaluation (Parent Ex. O-3). SCHOOL also confirms that Student has received an AC device with TouchChat on March 14, 2022. (Parent Ex. O-1; O-3). The annual review by SCHOOL’s licensed physical therapist dated August 7, 2022 (Parent Ex. P) recommends continuing PT 2 times a week individually for 30 minutes (Parent Ex. P-4) on assessing Student’s present levels of performance and progress in physical therapy goals, as does the independent PT evaluation. (Parent Ex. J-11). The annual review by SCHOOL’s licensed occupational therapist dated June 27, 2022, (Parent Ex. Q) recommends continuing OT services 3 times a week individually for 30 minutes (Parent Ex. Q-1 & 3), as does REDACTED, the independent occupational therapist stating in her recommendations that Student should receive OT 3 times a week. (Parent Ex. K-17; T. 124;). The annual review by SCHOOL’s special education teacher dated December 20, 2022 (Parent Ex. R-1) describes Student’s challenges and observes that Student has mastered his goal of drawing horizontal and vertical lines, he is successful in identifying action pictures, and he has made progress in his writing goals (Parent Ex. R-2). This review compiles all SCHOOL’s recommendations, includes academic goals, includes recommendations on parent training once monthly, and an extended school year. I find that the unilateral placement at SCHOOL does not recommend or provide home based ABA.
• The evidence demonstrates that the educational program recommendations for the 2022-2023 school year by SCHOOL match the recommendation by each of the independent evaluators except where SCHOOL recommends PCAT once monthly, the independent evaluator recommends it 2 times a week. SCHOOL’s program recommends PT two times per week 1: 1 (Parent Ex. R-1) as does the independent evaluator (Parent Ex. J-11) but SCHOOL’s PT annual review recommends 3 times a week. (Parent Ex. P-4).
• SCHOOL has conducted a Functional Behavioral Analysis (“FBA”) on August 18, 2022 of Student, (Parent Ex. S) and developed a BIP.
• The evidence submitted shows that just as REDACTED, certified occupational therapist and REDACTED, occupational therapist at SCHOOL have assessed Student’s present levels of performance and progress and made behavioral observations to inform the OT goals for the 2022-2022 school year, to recommend OT 3 times a week for 30 minutes as an appropriate mandate for Student. They do not recommend any topping up of this mandate with additional hours for an appropriate program determination (Parent Ex. Q-3), so also, other SCHOOL program mandates do not do so.
• The DPC does not state a cause of action for the claim of a compensatory award.

The claim in “Resolution 5” states that it is based on the recommendations of the independent evaluations. (Parent Ex. A-10). In the November 2021 FOFD as well as the December 2021 FOFD the relief of unilateral placement was granted on a finding of denial of FAPE for the 2018-19 to 2021-22 school years.(Parent Ex. GG-15).

• Parent’s evidence of independent evaluations3 establishes that Student had been attending SCHOOL for a year or more when the evaluations were (Parent Ex. M). Chronologically SCHOOL’s annual reviews and recommendations are subsequent to the independent evaluations submitted by Parent in which SCHOOL does not recommend home based ABA. SCHOOL has placed behavioral improvement systems in the school environment with Student’s parents’ cooperation and offered him special attention.
• Independent evaluator REDACTED, bilingual speech-language pathologist, recommends Student receive speech-language services four times a week for 30 minutes individually. (Parent Ex. H-11 & 12). Her testimony is that SCHOOL’s goals are appropriate (Tr. 96).
• Independent evaluator REDACTED’s testimony is that to bridge the “gaps that are present” Student “should” get 3 hours of OT service per week (Parent Ex. K-17, 3 Speech and Language evaluation, December 11, 2021 by REDACTED. (Parent Ex. H); Assistive Technology evaluation, December 30, 2021 by REDACTED. (Parent Ex. I); Occupational Therapy evaluation, January 10, 2022 by REDACTED. (Parent Ex. K); Physical Therapy evaluation, January 6, 2022 by REDACTED. (Parent Ex. J); ABA skills assessment, March 8, 2022 by REDACTED. (Parent Ex. M). FBA/BIP, February 8, 2022 by REDACTED. (Parent Ex. L).

recommendation 6). Evidence on the record is that it is exactly what Student is receiving. Ms. REDACTED knows that Student was at SCHOOL for a year prior to her evaluation, acknowledges that Student has been attending SCHOOL (T. 127) for 2021-2022 school year (T. 127), gets OT at SCHOOL (T. 127), and SCHOOL program recommendations are what she recommends he “should” get.

• Independent PT evaluator REDACTED testimony is that she had communicated with SCHOOL’s physical therapist (T. 83), knew Student had been at SCHOOL for a year prior to her evaluation and received PT two times a week for 30 minutes at SCHOOL (T.84).
• District’s AT evaluation of November 5, 2021 recommended addition of assistive technology to the existing IESP which recommends that Student receive an IEP mandated dynamic display SGD (iPad™ with TouchChat HD application) to access his curriculum, (i.e. iPad with TouchChat HD with WordPower), to communicate. (District Ex. 1). Student has received his AC device (Parent Ex. O-2) which is an iPad with TouchChat to be used in all environments. (Parent Ex. O-3). Parent’s testimony is that Student has been provided with an AT device by SCHOOL (Tr. 58 & 59). Student has a new iPad with software TouchChat and pictures. (Parent Ex. N-9; T. 66). Independent speech and language evaluator has recommended an iPad with Smart Talker TouchChat and WordPower (Parent Ex. A-5). Independent assistive technology evaluator REDACTED recommends4 an iPadAir with PROLOQ2go application (Tr. 137).
• Parent has entered into an agreement with SCHOOL of tuition guarantee for 2022- 2023 school year. (Parent Ex. W). Pursuant to this agreement the tuition for 40 week, 10 month program is $121,550.00 which includes related services and a designated 1:1 paraprofessional.

4 AT evaluation on November 30, 2021

Student’s 3 week summer program cost is $12,041.25 which includes related services and a designated 1:1 paraprofessional.

CONCLUSIONS OF LAW

Denial of FAPE

• The purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.” Bd. Of Educ. V. Rowley, 458 U.S. 176, 179-91 (1982). Implicit in the congressional purpose of providing access to a free and appropriate public education (hereinafter “FAPE”) is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicap child. (Id.)

Pursuant to 20 U.S.C. §1401(9) and 34 C.F.R. §300.17 FAPE is defined as follows:

Special Education and related services that are provided at public expense under public supervision and direction and without charge; meet the standards of the SEA… include an appropriate preschool, elementary school, or secondary school education in the State involved; and are provided in conformity with the individualized education program (IEP).

In deciding whether the Respondent provided a student with a FAPE, the inquiry is typically: (1) whether the Respondent complied with the procedures set forth in IDEA; and (2) whether the student’s IEP is reasonably calculated to enable the student to receive educational benefit (Rowley, supra.). Under the second prong, a school district need not maximize the potential of child but must open the door of public education in a meaningful way, and the IEP must provide the opportunity for more than only a “trivial advancement” P. v. Newington Bd. Of Educ., 546 F.3d. 111 (2nd Cir. 2008).

• The IEP is “the centerpiece of the statute’s education delivery system for disabled children” Honig v. Doe, 484 U.S. 305, 311 (1988). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides appropriate specialized instruction and related services. See 34 C.F.R. §300.320 (a). For an IEP to be “reasonably calculated to enable the child to receive educational benefits,” it must be “likely to produce progress, not regression” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998).
• Additionally, each public agency must ensure that, as soon as possible following the development of an IEP, special education and related services are made available to the child in accordance with the child’s IEP. In order to implement the IEP, a team that includes the child's parents determines where the child should be placed based on the child's IEP. Thus, the placement should not dictate the IEP but rather the IEP determines whether a placement is appropriate. Rourke v. District of Columbia, 460 F.Supp.2d 32, 44 (D.D.C. 2006).
• The DOE must ensure that the IEP team reviews a student’s IEP periodically, but not less than annually, to determine whether the annual goals for the child are being achieved. Moreover, the DOE must ensure that the IEP team revises the IEP, as appropriate, to address any lack of expected progress toward the annual goals; and the results of any reevaluation or information about the child provided to, or by, the parents. Additionally, if the parent obtains an independent educational evaluation (“IEE”) at public expense, or shares with the public agency an evaluation obtained at private expense, the school district must consider the results of the evaluation, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child. The IDEA mandates that an IEP be based on the results of the most recent evaluation of a student.
• In determining the appropriate placement for a child, preference is given to the least restrictive environment and the appropriate schools nearest the child's home (Id.). The IDEA requires that unless the IEP of a child with a disability requires some other arrangement, the child is to be educated in the school that he or she would attend if the student was otherwise not disabled. In selecting the least restrictive environment, consideration is given to any potential harmful effect on the child or on the quality of the services that he or she needs. A child with a disability is not removed from education in age appropriate regular classrooms solely because of needed modifications in the general education curriculum. See 34 C.F.R. § 300.116.
• When developing the IEP, the District will have evaluations of the child, as a procedural safeguard the parents are entitled, as a matter of law, an independent education evaluation (IEE) at public expense. 34 CFR § 300.502.
• Where a school system fails to provide special education or related services to a student with a disability, the student is entitled to compensatory education, “i.e., replacement of educational services the child should have received in the first place.” Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005). An award of compensatory education “should aim to place the disabled children in the same position they would have occupied but for the school district’s violations of IDEA” (Id.). Compensatory education is a remedy for “past deficiencies” therefore a finding as to whether a student was “denied a FAPE in the relevant time period is a necessary prerequisite to a compensatory education award.” Peak v. District of Columbia, 526 F. Supp. 2d 32 (D.C. Cir. 2007).
• Pursuant to New York Education Law § 4401(c)(1) the DOE shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasion and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires that the trier of fact to find that the existence of a fact is more probable than its nonexistence. Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993).
• Unlike other standards of proof, the preponderance-of-evidence standard allows both parties to share the risk of error in a roughly equal fashion, except that when the evidence is evenly balanced, the party with the burden of persuasion must lose. Director, Office of Worker’s Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 281 (1994).
• In this matter, District has failed to conduct an IEP review for the 2022-2023 school year. District did not make a recommendation for an appropriate program or placement for Student. As a result, the Student was denied a FAPE. District concedes a denial of a FAPE for the 2022-23 school year.

Reimbursement for Unilateral Placement

• A court or a hearing officer may order a district to reimburse the parents of a student with a disability for the student’s unilateral private placement if the district failed to make a FAPE available in a timely manner and the unilateral private placement is appropriate, 34 CFR 300, 148 (c); Florence County Sch. Dist. Four v. Carter, 20 IDELR 532 (US 1993). Parents seeking tuition reimbursement as a remedy cannot simply speculate that the assigned school will fail to provide one or more services the student needs to receive FAPE; they must show that the school is not capable of implementing the student’s IEP. M.O. and G.O. v. New York City Department of Education, 65 IDELR 283 (2nd Cir. 2015); Y.F. v. New York City Dep’t of Educ., 68 IDELR 92 (2d Cir. 2016, unpublished).
• It is true that a unilateral private placement does not need to meet state standards for public education programs to be “appropriate” for reimbursement services, 34 CFR 200.148 (c). However, a unilateral private placement is appropriate for reimbursement purposes if it offers instruction that is specially designed to meet the student’s unique needs as well as the support services the student requires to benefit from that instruction, M.N. v. State of Hawaii, Dep’t of Educ., 60 IELR 181 (9th ir. 2013, unpublished); Ward v. Board of Education of the Enlarged City Sch. Dist. Of Middletown, NY, 63 IDELR 121 (2d Cir. 2014, unpublished).
• Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" Gagliardo, at 112; see M.S. v. Bd. Of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents' placement... '" Gagliardo, at 112, quoting Frank G. v. Bd. of Educ., 459 F.3d 356,364 (2d Cir. 2006). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, ultimately, the issue turns on whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; Gagliardo, 489 F.3d at 115). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401 [29]; 34 CFR 300.39[a][l]; Educ. Law§ 4401 [!]; 8 NYCRR 200.1; Rowley. 458 U.S. at 188-89). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school must provide an educational program which meets the student's special education needs. See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 14). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

"Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction." (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

• In finding that the District did not provide FAPE to the student during the 2022- 2023 school year, the burden now shifts to the Parent to prove the appropriateness of the private school. After reviewing the testimony and evidence provided, I find that Parent has met that burden. The testimony and documentary evidence submitted by the Parent established that the unilateral placement at the School was appropriate and provided the Student with educational instruction that was specifically designed to meet the Student's unique special education needs, supported by such services that were necessary to permit him to benefit from instruction. Given the testimony of SCHOOL’s program director along with the Parent’s, SCHOOL, the private school has provided educational instruction specially designed to meet the Student's academic, behavioral, speech, motor and sensory needs, by providing special education services in a small supportive setting. I credit SCHOOL’s program director's testimony that Student has progressed in academics, his goals, fine motor skills, maths, sequencing, vocabulary, OT, PT and Speech. Each independent evaluator has opined that SCHOOL meets Student’s unique educational needs and has been able to provide proper behavioral intervention to reduce his maladaptive behaviors in his academic environment. Student who exhibits low gross motor skills, sensory detection deficits and processing challenges is now able to draw horizontal and vertical lines, identify action pictures. He has demonstrated the ability to imitate actions and 1-2 word utterances. He can identify functional vocabulary from a field of four independently. He can go up and down two flights of stairs without requesting a break showing improved physical endurance. With respect to the student's progress at the private schools, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). Here, the credible proof established the Student has made both academic, social and behavioral progress. His self injurious behavior, aggression and melt down have decreased. Based on all of the above, I find that SCHOOL was an appropriate placement for the Student for the 2022/2023 school year. In this matter, there was a clear demonstration that the unilateral placement chosen by the Parent was appropriate. Specifically, the evidence demonstrated that SCHOOL has engaged Student in a variety of programs, classes, related services and activities which were specifically tailored to address Student’s unique needs and challenges. The District did not provide any evidence to refute the appropriateness of the school placement.
• It is for the reasons stated above that it is appropriate for the District to fund the tuition for the twelve-month school year of 2022-2023 in the amount no greater than $121,500.00 for the ten months from September 2022 to June 2022, which includes related services and a designated 1:1 paraprofessional and Student’s 3 week summer program cost in the amount no greater than $12,041.25 which includes related services and a designated 1:1 para professional, which represents the amount of tuition for the year upon proof and verification.
• Equitable considerations are relevant in determining relief "because the authority to grant reimbursement [under the IDEA] is discretionary." Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374). Here parent provided the district with a ten-day notice and cooperated with the CSE process. In balancing the equities, I find in favor of the Parent who had the best interests of the child in their decision-making. To the extent possible, the Parent has participated in all aspects of the special education process. The District failed to refute the same. Compensatory Educational Services
• Another form of relief available is compensatory education, which is an equitable remedy tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see 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]; Newington, 546 F.3d at 123 [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and... compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; see also Doe v. E. Lyme Bd.

of Educ., 790 F.3d 440, 456 [2d Cir. 2015]; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]). Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address [] the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette

Cnty., Ky. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).

• Some courts have held that compensatory education is not available as an additional or alternative remedy when reimbursement for the costs of a unilateral placement is also at issue for the same time period (see 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"]; 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"]; but see I.T. v. Dep't of Educ., State of Hawaii, 2013 WL 6665459, at *7-*8 [D. Haw. Dec. 17, 2013] [finding that the student was entitled to compensatory education for services the student received at the nonpublic school]). 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 (compare P.P., 585 F.3d at 739 [finding that "[t]he right to compensatory education arises not from the denial of an appropriate IEP, but from the denial of appropriate education"], with E.

Lyme, 790 F.3d at 456-57 [treating compensatory education as an available equitable remedy for a denial of a FAPE so as to effectuate the purposes of the IDEA and put a student in the same position he or she would have been in had the denial of a FAPE not occurred]).

• Accordingly, 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 is denied under a Burlington/Carter analysis (see Application of a Student with a Disability, Appeal No. 16-050). However, if 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.
• A parent may obtain outside services for a student in addition to a private school placement as part of a unilateral placement (see C.L., 744 F.3d at 838-39 [finding the unilateral placement appropriate because, among other reasons, parents need not show that a "'private placement furnishes every special service necessary'" and the parents had privately secured the required related services that the unilateral placement did not provide], quoting Frank G., 459 F.3d at 365). However, for the outside services to represent a portion of the unilateral placement, the parent must undergo the financial risk associated with unilateral placements (see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] ["Parents who are dissatisfied with their child's education can unilaterally change their child's placement during the pendency of review proceedings and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the IEP dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test"] [first emphasis added] [internal quotations marks and footnotes omitted]; see also Carter, 510 U.S. at 14). To the extent a parent cannot afford to front the costs of the services, the district may be required to directly fund the services, but only if it is shown that the parent was legally obligated to pay for the services but, due to a lack of financial resources, had not made payments (see Mr. & Mrs. A. v.

New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011] [finding it appropriate to order a school district to make retroactive tuition payment directly to a private school where equitable considerations favor an award of the costs of private school tuition but the parents, although legally obligated to make tuition payments, have not done so due to a lack of financial resources]).

• Here in their due process complaint notice, Parent requests funding of tuition at SCHOOL for the 2022-2023 school year as well as funding for compensatory OT, PT, SLT, PCAT, Assistive Technology training, and home-based ABA compensatory services from a “provider of the [p]arents' choice at their normal and customary rate". (see Parent Ex. A at p. 10).
• Parent contends that the compensatory education services are to address the district's failure to provide any services prior to Student attending SCHOOL. Upon review of the evidence and testimony in this case I find that the period between when Student joined kindergarten in the 2020-2021 school year and moved to SCHOOL is the duration the Parent establishes Student did not receive ABA therapy services with other related services being inconsistently delivered. This period would stretch from September 2020 to January 4, 2021, a period of about four months.
• In prior due process hearings Parent was granted unilateral placement at SCHOOL pursuant to a finding of a denial of FAPE for the 2020-2021 school year.
• Here, the parent is not seeking funding for private educational or related services or ABA therapy services Parent secured for the student during the period September 2020 to January 3, 2021. This case does not represent a unique or rare circumstance such that it would warrant an order requiring District to fund both the unilateral placement and prospective compensatory education. Parent does not state a claim for deficiencies in the unilateral placement, SCHOOL, chosen by and arranged for by the parent. Student is receiving 25 hour a week of ABA since attending SCHOOL, far more than the range of 10-20 recommended by the child neurologist and SCHOOL is providing a program as recommended by the independent evaluators.
• Upon the testimony of Parent, SCHOOL’s program director, Student’s educators and evaluators at SCHOOL, and of independent evaluators I find that for the past two and a half years that Student is at SCHOOL’s educational program delivered applying 25 hours a week of ABA therapy methodology was a remedy to the problem in the 2020-2021 IEP which Student experienced for four months. The evidence does not establish that Student requires additional educational services beyond those SCHOOL and evaluators have recommended and is being provided.
• For the past two and a half years Student is at a small specialized private school which gives the parent an opportunity to interact personally with the education providers to personally assess Student’s progress and adjust as required their own needs for training and counseling if greater than what is currently scheduled.
• While I understand the parents desire to see additional improvements in the student's experiences in the home, the district was not required to provide "every special service necessary to maximize the student's potential" (Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 756 [2d Cir. 2018], cert. denied sub nom., 139 S. Ct. 322 [2018]).
• And there is no basis to find that this matter represents a unique or rare circumstance such that it would warrant an order requiring the district to fund the unilateral placement, as well as prospective compensatory education to make-up for deficiencies in the placement chosen by and arranged for by the parent, as evidence in this case does not establish such deficiencies nor are they alleged, Other Reliefs:
• Parent is seeking that the IHO order the CSE to convene and mandate an increase in frequency of PCAT services, mandate 10 hours a week of home based ABA by or supervised by a BCBA and a software application ProLoquo2Go and an iPad Air device with accessories, in the IEP.
• When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local CSE that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402(1)(b)(1)(a); see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). The IDEA further requires that each child's IEP be reviewed “periodically, but not less frequently than annually,” 20 U.S.C. § 1414(d)(4)(A)(i), and be “in effect” “[a]t the beginning of each school year,” id. § 1414(d)(2)(A); see also N.Y.Comp. Codes R. & Regs. tit. 8 § 200.4(f) (requiring that IEPs be “reviewed and, if appropriate, revised, periodically but not less than annually”).
• Independent of any statutory requirement, the CSE should have convened by June 1, 2022 to conduct a review of the student's progress at SCHOOL and, if necessary, revise the educational placement for the period following June 30, 2022 in accordance with federal and State law. It is undisputed that CSE has not convened and Student’s IEP has not been developed for the 2022-2023 school year by District.
• Relief in the form of prospective placement of a particular type of program, related service mandate, and assistive device and technology which would direct specific contents of an IEP would have the effect of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing the student's needs. (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"]; see also Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 [E.D.N.Y. Oct. 30, 2008] [noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year"]; see also Application of a Student with a Disability, Appeal No. 21-113; Application of a Student with a Disability, Appeal No. 20-089.
• Except for the 2020 Neurologist Report (Parent Ex. G), all independent evaluations were reported after the prior due process hearings had ended, leading up to the December 2021 FOFD. All the evaluations and reports submitted in this proceeding must be considered by the CSE when it next convenes to develop an annual IEP.

Transportations

• Parent in the hearing request, seek transportation between their home and the School. New York Education Law §4402(4)(d) provides, in relevant part, that a board of education:

“shall provide suitable transportation up to a distance of fifty miles to and from a nonpublic school which a child with a handicapping condition attends if such child has been so identified by the local committee on special education and such child attends such school for the purpose of receiving services or programs similar to special educational programs recommended for such child by the local committee on special education.

• Student has a diagnosis of Autism Spectrum Disorder and is entitled to special transportation between home and school.
• There is no evidence submitted on expenditures made for private transportation.

To the extent that the Parent seeks reimbursement for the cost of private transport to transport the Student to and from the School, the relief is denied.

• Lastly, to the extent there are other relief requested in the Due Process Complaint not specifically addressed at hearing, such relief are denied for lack of proof.

ORDER

Based on the Findings of Fact and Conclusions of Law and all evidence before the IHO, it is hereby

ORDERED that:

• The Committee on Special Education convene to develop an IEP for the student within 60 days of the date of this order;
• The Committee on Special Education consider the following at its next IEP meeting (i) increase in frequency of parent counseling and training services, (ii) home based educational service using a methodology of parent’s choosing and (iii) providing a software application ProLoquo2Go, the device iPad Air with accessories and training to Student and Parent;
• The District shall fund the Student’s tuition at SCHOOL for the 2022-2023 school year in the amount not to exceed $121,500.00 for the ten months program from September 2022 to June 2023 which includes related services and a designated 1:1 paraprofessional which represents the amount of tuition for the year upon proof of the provision of services and attendance by the student by but not limited to copies of invoices, tuition services contracts, attendance or enrollment documents and transportation logs;
• The District shall fund the Student’s costs at SCHOOL for Student’s 3 week summer program in July and August 2022 in the amount not to exceed $12,041.25 which includes related services and a designated 1:1 paraprofessional which represents the amount of tuition and costs for July and August 2022 upon proof of the provision of services and attendance by the student by but not limited to copies of invoices, tuition services contracts, attendance or enrollment documents and transportation logs;
• Parent’s claims for compensatory education services is denied; and
• District shall provide suitable special transportation from the closest safe curbside location near home to school.
• The district must immediately upon receipt, enter this order on a system that is used to keep track of such orders.

The foregoing constitutes the order of the Impartial Hearing Officer. Dated: September 29, 2022

Vandana Chak Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov

IHO EXHIBITS

No.

Document

Date

Pages

Appointment of Hearing Officer

7-26-22

Due Process Complaint

7-18-22

III

Parent Pendency Discovery

8-14-22

Pendency Agreement

8-17-22

Compliance extension

9-18-22

Transcript

8-09-22

VII

Transcript

08-29-22

VIII

Transcript

09-07-22

Transcript

09-16-22

PARENT EXHIBITS

REDACTED

DOE EXHIBITS

No.

Document

Date

Pages

Assistive Technology Evaluation

November 5, 2021

Bilingual Psychoeducational Evaluation

February 10, 2020

New York City Department of Education, Impartial Hearing Decision

JURISDICTION

BACKGROUND

ISSUES

FINDINGS OF FACT

CONCLUSIONS OF LAW

ORDER