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CASE NUMBER: 576482 - NYC: 229164
FINDINGS OF FACT AND DECISION
Case Number: 229164
Student’s Name: REDACTED[1]
School District: REDACTED
Impartial Hearing Officer: Eryn DeFontes, Esq.
Date of Filing: July 1, 2022
Hearing Requested by: Parent
Date of Hearing: August 31, 2022, September 28, 2022
Record Close Date: November 4, 2022
Date of Decision: November 4, 2022
NAMES AND TITLES OF PERSONS WHO APPEARED AT THE DUE PROCESS HEARING:
August 31, 2022
For the Student:
Parent’s Attorney
Parent
Private School Director
For the Department of Education (“DOE” or “District”):
DOE Representative
September 28, 2022
For the Student:
Parent’s Attorney
Parent
Psychologist For the DOE:
DOE Representative
Public School Assistant Principal
Special Education teacher/ Committee on Special Education (“CSE”) representative
BACKGROUND and PROCEDURAL HISTORY
This matter concerns the Student, classified as a student with a disability pursuant to the Individuals with Disabilities Education Act (“IDEA”). The Student’s eligibility for special education supports and services is not in dispute. The Parent filed the Due Process Hearing request on July 1, 2022. On July 22, 2022, the undersigned IHO was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415(f) and New York State Education Law §4404(1) to determine the claims in the due process complaint (“DPC”). A Settlement Conference and Pre-Hearing Conference took place on August 2, 2022. The matter then proceeded to a Due Process Hearing on August 31 and September 28, 2022.
JURISDICTION
This decision is rendered pursuant to the IDEA Act, 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200.
LEGAL FRAMEWORK
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). Under the IDEA and New York law, where there is a procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a FAPE is significantly impeded, a hearing officer may find that a child did not receive a FAPE. See 20 U.S.C. § 1415 (f)(3)(E)(ii); 8 NYCRR § 200.5(j)(4)(ii).
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”). See 34 C.F.R. § 300.13. A FAPE is further defined as “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 Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
A board of education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. See 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). These three conditions constitute the Burlington/Carter test in a tuition reimbursement case.
The Parent’s Position The Parent alleges procedural and substantive denials of FAPE, including but not limited to, improper constitution of the CSE team, predetermination of the IEP program recommendations, and failure to include ABA programming and 1:1 services on the IEP (A-1 through 6). [2] The Parent requests relief pursuant to the DPC, inter alia, a ruling that the Student was denied a FAPE for the 2022-2023 school year (“SY”); a 12-month placement at the Private School is appropriate; direct funding and/or prospective/tuition funding of the Student’s tuition at the Private School for the 12-month 2022-2023 school year; and funding of the cost of independently and/or privately obtained evaluations necessary for the Student to receive a FAPE (P-A pp.4, 5; II pp. 4-8).[3] The Parent proffered exhibits A-Q, which were entered into the hearing record with no objection from the DOE and presented witness testimony from the Parent, the Director of the Private School, and the Psychologist.
The DOE’s Position The District asserted that the Department offered the Student a FAPE for the 2022-2023 SY[4] and further maintained inter alia, that the CSE team was validly composed and complied with proper procedures; the CSE recommendation was not predetermined; the CSE considered appropriate documentation; the CSE adopted the FBA and BIP developed by the Private School to address the Student’s social-emotional needs; the Student’s program recommendation was appropriate; the Parent failed to established the appropriateness of the Private School placement; the equities do not favor the Parent; the Student is not entitled to the requested evaluations (I pp.1-7).
The DOE proffered Exhibits 1-14, which were entered into the hearing record and [5] presented the testimony of the Assistant Principal of the Public School and a Special Education Teacher/CSE member. The DOE cross-examined the Private School Director, the Psychologist and the Parent. The DOE maintains that the CSE considered information provided by the Private School in formulating the IEP (D-2). The DOE further avers that Prior Written Notice “” PWN”)and a School Location Letter (“SLL”) were sent to the Parent on June 16, 2022.
As a result of the IEP meeting, the Student was classified with Autism Spectrum Disorder (“ASD”)and recommended for Adapted Physical Education (“APE”), a 6:1+1 Special Class in a DOE Specialized School for the 12-month school year, and related services: Counseling 1x30 group, Occupational Therapy (“OT”) 2x30 individual, Physical Therapy (“PT”) 2x30 individual, as well as Speech-Language Therapy (“SLT”) 3x30 individual and 1x30 group. (P-1 pp. 24, 25). The SLL recommended the Proposed Placement in District 75 (“D75”) (P-3, P-4).
FINDINGS OF FACT AND DECISION
Burlington/Carter Prong I: Failure to Provide a FAPE
A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits[6]. If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits[7].
The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE[8]. A school District offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”[9] 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[10].
ABA and 1:1 Instruction The Parent argues that the Student was substantively denied a FAPE because the June 2022 IEP (“June IEP”) does not include ABA and 1:1 instruction (II-4 ¶ I) and cites “the doctrine of ‘clear consensus” in support thereof. Id. The Parent further argues that the DOE’s witnesses offered retrospective testimony regarding the ability of the Proposed Placement to implement ABA methodologies (II-5 ¶ I, II).
Although an IEP must provide for specialized instruction in a student’s area of need, generally, a CSE is not required to specify methodology on an IEP, and the precise teaching methodology to be used by a student's teacher is usually a matter to be left to the teacher Rowley, 458 U.S. at 204; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2012 WL 2708394, at *15, *17 [S.D.N.Y. May 24, 2012]; A.S. v New York City Dep't of Educ., 10-cv-00009 [E.D.N.Y. May 26, 2011] [noting the "broad methodological latitude" conferred by the IDEA]; Application of a Student with a Disability, Appeal No. 12-017.
However, where the use of a specific methodology is required for a student to receive an educational benefit, the student's IEP should so indicate (see, e.g., R.E., v. New York City Dep’t of Educ., 694 F.3d 167, 194 (2d Cir. 2012) [finding an IEP substantively inadequate where there was "clear consensus" that a student required a particular methodology, but where the "plan proposed in [the student's] IEP" offered "no guarantee" of the use of this methodology]).
Additionally, if, as in this case, the evaluative materials before the CSE recommend a particular methodology, and there are no other evaluative materials before the CSE that suggest otherwise, and the school district does not conduct any evaluations "to call into question the opinions and recommendations contained in the evaluative materials," then, according to the Second Circuit, there is a "clear consensus" that requires that the methodology be placed on the IEP notwithstanding the testimonial opinion of a school district's CSE member (i.e. school psychologist) to rely on a broader approach by leaving the methodological question to the discretion of the teacher implanting the IEP (A.M. v. New York City Dep't of Educ., 845 F.3d 523, 544-45 [2d Cir. 2017]). The fact that some reports or evaluative materials do not mention a specific teaching methodology does not negate the "clear consensus" (R.E., 694 F.3d at 194).
In this case, the DOE representative acknowledged that the Student’s need for ABA therapy or a similar methodology was not in dispute: “No, I don't believe it’s in dispute…even [the DOE Special Education Teacher] testified… that the recommendation that’s been made in the IEP by the CSE is akin to what’s recommended by [the Private School] (Tr. pp.199-200).
The evaluations and reports submitted into the hearing record (by both the DOE and the Parent) support a finding that the Student requires ABA instruction in order to receive a FAPE, and failure to implement this methodology will likely cause regression (D5, 9, 10, 12, 13; P-O, Q). For example, the Neuropsychological evaluation clearly describes the Student’s need for ABA services: “[The Student’s] plan must include placement in a small, structured, and sensitive full-time special education program that provides Applied Behavioral Analysis (ABA) throughout the day and promotes independent and social skills…[s]pecifically, [the Student] requires a program that includes data-driven ABA throughout the day in order to increase his communication and social skills, support his attention, increase his availability for learning, and decrease his interfering and maladaptive behaviors.” (D-12 pp. 8, 10)
The Psychologist provided uncontroverted testimony to support the Student’s need for an ABA program: “[The Student’s] ability to acquire and maintain new skills will depend on consistent therapy and ongoing practice with appropriately trained ABA providers implementing the data driven program. It is imperative that [the Student] receives individual ABA therapy in his school-based program and home setting…it is my professional opinion that [the June 9, 2022 IPE] does not recommend an appropriate educational program for [the Student]…[he] requires a program that includes data-driven ABA throughout the day in order to increase his communication…support his attention… and decrease his interfering and maladaptive behaviors.” (P-Q p.5)
The unrefuted evidence in this matter establishes that the CSE team was fully aware of the Student’s need for ABA services, as the Student’s BIP (P-N) was discussed at the IEP meeting (Tr. 155), including the way in which the CSE incorporated the BIP into the IEP (P-1-4, 6)[11].
The CSE Special Education teacher testified that while the CSE does not institute specific methodologies, ABA is a methodology commonly utilized in D75 schools, and ABA methodologies that were identified to be helpful for the Student were incorporated in the IEP. (Tr. pp. 167-169). However, a review of the subject IEP suggests otherwise. For example, although the “social development” section of the IEP refers to the Private School progress report and BIP, there are no ABA or ABA informed methodologies, or strategies set forth as recommended in the various reports and evaluations submitted for the CSE team’s review. Notably, the IEP reports, “[the Student is] responding well to the behavior intervention plan that has been put in place”[12] and “[a] behavior p[l]an is included among [the Student’s] documents. It will follow that developed by [the Private School]” (D-1 p. 4). Notably, the CSE team was cognizant of the Student’s needs with respect to what was required for the Student to receive a FAPE. What is more, the CSE team relied upon and agreed with the Private School’s BIP. Nevertheless, there was no mention of the specific methodologies incorporating ABA principles or 1:1 instruction to support the Student in any of the sections or recommendations in the IEP (D-1).
Although at the hearing, the DOE Assistant Principal at the Proposed Placement testified, “[the Proposed Placement] utilizes ABA methodologies in instruction. This includes the use of specific visual cues and schedules for the class as a whole and for individual students… [w]e embed behavior supports to keep students on task with learning… When students achieve a specific goal… they earn incentives…[a]ll of our classrooms follow cohesive structures including color-coded work areas… that are specific to the student's level” (D-14 p. 3), the Parent, at the time that they unilaterally placed the Student in the Private School, had only the IEP to rely on, rather than the after-the-fact claims set forth during the hearing.
Additionally, when the Parent visited the Proposed Placement in July 2022, she learned that the Proposed Placement is not an ABA-based school, does not provide 1:1 ABA and does not employ a Board-Certified Behavior Analyst (“BCBA”) on staff (Tr. 84).[13] The Parent further testified regarding her visit to the Proposed Placement and her observations: “It was a District 75 School. It was a big school. It was a high school that turned into a District 75 School…it looked a lot like…a high school with lockers…a little overwhelming…[t]here were a lot of kids of all ages. I did see the classrooms. It was summer school…it's a mix of kindergarten to middle school...[i]t was a little overwhelming for me as I wasn't expecting that type of setting” Id.
The IEP meeting minutes document the Parent’s concerns with the lack of ABA services in the IEP and the DOE’s response: “Mother asked about the ABA program. It was explained that the DOE does not have strict ABA program with discrete trials however the teachers in the D75 schools are specially trained and incorporate many modalities and strategies for students on the ASD spectrum.” (D-2 pg.2).
Contrary to the DOE’s claim that the Parent “impermissibly speculated” as to the inappropriateness of the Proposed Placement (I-6), it is clear that the Proposed Placement could not implement the IEP, which effectively adopted the Parent’s and Private School’s evaluations, reports and findings, all of which concluded that the Student required ABA programming in order to make progress and avoid regression (P-B p. 2; P-O p.10; P-Q p.4). Simultaneously, had the IEP included an ABA program, the Proposed Placement could not implement such a program (Tr. 78:7-16).
Accordingly, the DOE’s failure to include ABA programming in the Student’s June IEP, thus guaranteeing that the Student would receive these much-needed services, necessary in order to receive a FAPE for the 2022-2023 school year, amounts to a substantive denial of FAPE.
Constitution of CSE Team The Parent argues that the CSE team “was not duly constituted because the CSE special Education Teacher was not qualified to serve in that capacity, as the IDEA requires that an IEP be developed by a group of individuals including at least one special education teacher, or where appropriate, at least one special education provider of such child (20 U.S.C. § 1414[d][1][B][iii]; see 34 C.F.R. § 300.344[a]; 8 NYCRR 200.3[a][1][iii]).” (II-5 ¶II). The Parent’s claim as set forth in the DPC alleges that the CSE team was improperly constituted “because CSE 9 participants lacked familiarity with the student and were not qualified to serve in their official capacities at the meeting.” (P-A p.3).
The DOE contends that the Parent’s claim is “without merit”, as it fails to “articulate a specific allegation to support any claim that the team was not fully constituted or did not follow proper procedure.” (I p. 3).
The evidence establishes that on June 9, 2022, the Student’s IEP meeting was comprised of the DOE School Psychologist/District Representative, a CSE Special Education Teacher/related services provider, the Private School Director, the Private School teacher, and the Parent, (D-1 pp.32, 33).
The IDEA requires that an IEP team include the parents of the child; at least one regular education teacher of the child (if the child is, or may be, participating in the regular education environment); at least one special education teacher of the child, or where appropriate, at least one special education provider of the child; a district representative qualified to supervise/provide special education who is knowledgeable about the general education curriculum and the district's available resources; and, an individual who can interpret the instructional implications of evaluation results (who may be an existing, required member of the team other than the parent).[14] In New York, the CSE carries out the functions of the IEP team. 8 NYCRR § 200.3(a)(1). The composition of the CSE meets the IDEA requirements but also includes a school psychologist, who may also serve as the district representative or individual who can interpret the instructional implications of the evaluation results.[15]
The Official Analysis of Comments to the federal regulations indicates that the special education teacher or provider "should" be the person who is or will be responsible for implementing the student's IEP (IEP Team, 71 Fed. Reg. 46670 [Aug. 14, 2006]).
The evidence in this case supports a conclusion that the CSE team was not duly constituted on June 9, 2022. The CSE Special Education Teacher testified that she is a New York State certified special education teacher serving throughout her career as a data specialist, IEP teacher, resource room teacher and Special Education Teacher Support Services (“SETSS”) provider, assigned to the subject CSE and the Student’s school districts (Tr. 149:1-6). As such, her responsibilities include conducting annual and initial reviews and participating in classroom observations and reevaluations as needed. Id. There was no indication from the record that the CSE Special Education teacher would be responsible for implementing the Student’s IEP.
The parent elicited on cross-examination that the CSE Special Education teacher was not the Student’s teacher, had never taught in a special education District where the Student’s Proposed School was located, had no plans to do so, nor would she be responsible for implementing the Student’s IEP (Tr. 171:19-21,177; II-6).
Therefore, the June 9, 2022 IEP team meeting was not duly constituted. IDEA requires that if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits.[16] In this case, based upon the record and given the lack of experience of the CSE Special Education Teacher with the public special education District school proposed, the failure to include ABA on the June IEP was further exacerbated by this procedural deficit. The CSE team did not have anyone present with actual knowledge of the extent to which ABA methodologies were in fact being implemented in the Proposed Placement (or whether the teachers that would be teaching the Student in fact had such skills and experience), as opposed to merely relying upon an assumption regarding special education District schools in general, which would not guarantee that the Student’s needs would be met.
Accordingly, the lack of proper constitution with respect to the presence of the CSE Special Education Teacher in this case, constitutes a procedural violation which impeded the student’s right to a FAPE.
Pre-determination/Meaningful Opportunity to Participate and Sufficiency of Evaluative Data The Parent alleges that the CSE predetermined the IEP program recommendation and therefore, the “parent’s participation in the…IEP was no more than after-the-fact involvement”, which “significantly impeded the Parent’s ability to meaningfully participate…” (P-A pp. 3,4; II-5-6).
It is widely held that consideration by district personnel of possible recommendations for a student, prior to a CSE meeting, is not prohibited as long as the CSE understands that changes may occur at the CSE meeting. (Nack v. Orange City Sch. Dist., 454 F.3d 604, 610 [6th Cir. 2006] ["predetermination is not synonymous with preparation"]; Deal v. Hamilton County Bd. Of Educ., 392 F.3d 840, 857-60 [6th Cir. 2004]; A.G. v. Frieden, 2009 WL 806832, at *7 [S.D.N.Y. Mar. 26, 2009]; P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 382-83 [S.D.N.Y. 2008]. In fact, Courts have rejected predetermination claims where the parents have actively and meaningfully participated in the development of the IEP. (J.G. v. Kiryas Joel Union Free Sch. Dist., 2011 WL 1346845, at *30-31 [S.D.N.Y. Mar. 31, 2011].
In addition, the IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child" (20 U.S.C. § 1415[b][l]). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate (34 CFR 300.322; 8 NYCRR 200.5[d]). Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP does not amount to a denial of meaningful participation (see P.K., 569 F. Supp. 2d at 383 ["A professional disagreement is not an IDEA violation"].
Notably, a component of the parents' right to participate is the requirement that the CSE must consider private evaluations obtained at private expense, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student (34 CFR 300.502[c]; 8 NYCRR 200.5[g][l][vi]).
The Special Education teacher testified on direct examination that the IEP team reviewed and relied upon DOE exhibits 5 through 12, namely, the Private School Semi-Annual Educational Report, Annual Occupational Therapy Report, Annual Speech Therapy Report, Annual Physical Therapy Report, IEP Progress and Annual Report for 2021-2022 SY, DOE Social History Update, DOE Classroom Observation, and a Neuropsychological Evaluation (Tr. 152:6-26; 153:1-3; D-5-D12).
The DOE maintains that PWN (D-3) was provided to the Parent, coupled with a SLL (D-4). The PWN notes the “Evaluation Procedure/Assessment/Record/Report” used in the teams’ decision, consisted of a “Social history update”, dated 3/16/2022[17] and “Classroom Observations”[18], dated 3/16/2022. (D-3 p. 2).
As reflected in the meeting minutes, the Parent was present at the IEP meeting, was asked if she had any questions or concerns and was advised that she would receive a copy of the observation “with the packet of other documents” (D-2 p.2). Additionally, the 8:1:1 setting the CSE team proposed in the June IEP was rejected by the Parent (D-3 p.2). In response, the CSE team modified the setting to a 6:1:1 class (D-2 p.2). Based upon the foregoing, the evidence supports the conclusion that the CSE team did not pre-determine the Student’s program. The CSE team relied upon sufficient evaluative data in formulating its recommendation, and the Parent was afforded the opportunity to meaningfully participate in the IEP meeting.
Considering Prong 1 of the Burlington/Carter framework, the evidence supports a conclusion that the Student was substantially denied a FAPE, as the June IEP was not reasonably calculated to enable the Student to make progress appropriate in light of his circumstances.
Burlington/Carter Prong 2: Appropriateness of the Parent’s Placement:
The DOE may be required to pay for educational services obtained for a student by the student's parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim.[19]
Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student.”[20] The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.”[21] 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 DOE 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…"[22]
Furthermore, “no one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs.”[23] In order 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.”[24] The Director of the Private School testified via affidavit that the Private School is an independent private special education school designed for mid- to high-functioning children with ASD ages 5-12 years old, offering small special education classrooms with low student to teacher ratio, intensive related services of SLT OT, PT, and counseling. The Private School’s distinguishing feature is a comprehensive ABA program that includes development of an FBA and BIP for each student. Each classroom is led by a certified special education (head) teacher and two assistant teachers working collaboratively with a licensed speech and language pathologist, occupational therapist, physical therapist, social worker, registered nurse, and other professionals lowering the actual staffing ratio to approximately 2:1 and 1:1 if needed and allowing for daily small group skill instruction and individualized attention (P-O p.3 ).
The unrefuted evidence further establishes that the Private School’s core educational model is rooted in ABA programming, which is a scientific educational methodology in which all instruction used by teachers is based on scientific evidence. The Private School treatment model is also based on ABA which applies behavior approaches in a structured educational setting to address and remediate challenging situations and interfering behaviors relating to the education and social development of children on the autism spectrum (P-O p. 6).
The Psychologist diagnosed the Student with ASD and language impairment. As such, she recommended a small, highly structured, full time special education setting that includes specialized interventions and individual behavioral supports utilizing ABA methodology. [The Psychologist] opined that without this level of support, the Student will not make appropriate progress and will be at risk for severe regression; without constant maintenance and consistent application of ABA, the Student is likely to regress on previously mastered skills when new skills/targets are introduced. The methodologies applied including errorless teaching, motivating operations, high rates of reinforcement, naturalistic environmental teaching, and differential reinforcement are utilized throughout every class session. Due to the high amounts of prompting and instructional support the Student requires in order to complete academic and daily living tasks to get through his day, it is “highly recommended” to continue the utilization of consistent ABA programming in order to increase and hopefully achieve the highest level of independence with the lowest amount of assistance to get through the school day. (P-O p. 10, 14, 15; D-12).
The DOE did not dispute the Student’s management needs or his requirement for a twelve-month placement.
Progress The evidence establishes that the Student has made progress while enrolled at the Attending School. For example: during the first two weeks of school the Student was only able to sit at his desk on average of one minute without a verbal reminder and approximately 10 verbal reminders were given to instruct the Student to stay seated during a 15-minute period. Following the implementation of the Student’s BIP, he can now participate in group instruction without getting up from his seat for an average duration of 15 minutes (i.e., 1400% increase in on-task behavior), with an average of one verbal reminder (P-I p3). At the beginning of the school year, the Student had difficulty completing his morning routine of going to his cubby, taking off his jacket, unpacking, and putting away his food and beverages to their appropriate places. He required more than one vocal direction per task and would often engage in self-stimulatory behaviors (e.g., hand flapping, vocal stereotypy). Now, he can complete his entire morning routine with a maximum of one vocal direction per task. Id.[25]
The testimony and evidence presented by the Parent further establishes that the Private School’s ABA programming and strategies are tailored to the meet the Student’s unique needs and challenges, such as the Private School’s use of consequence procedures which include redirection, physical prompts and vicarious reinforcement, delivered in a small, highly structured, full-time special education setting that includes specialized interventions and individual behavioral supports utilizing tactics and methodologies derived from ABA. (P-I p. 5)
The Parent’s uncontroverted testimony and documentary evidence establish that the Private School is 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 as are necessary to permit him to benefit from instruction.
The Parent further testified as to the appropriateness of the Private School program:
“With…the progress that [the Student] has made this year, my husband and I would like him to continue… [the Private School’s] academics [are] very personalized.
When I was at the D75 School talking about their academics…they followed like 45-minute periods for reading and writing. And I, I know my son, and he can't handle that at all. He -- his attention span is very short.
I know at [the Private School] they work to his level, and his programs are individualized to him.” (Tr. 85:4-16).
Based upon the foregoing, the evidence supports a conclusion that the Private School is an appropriate placement for the 2022-2023 school year. The Parent has therefore met the second criterion of the three-part Burlington/Carter test for tuition reimbursement.
Burlington/Carter Prong 3: Equitable Factors:
When considering an award of tuition reimbursement, an IHO must also determine whether a balancing of the equities support the award, as “equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.” Frank G., 459 F.3d at 363-64; see also 20 U.S.C. § 1412(a)(10)(C)(iii). When a school district fails to provide a student with a FAPE and the private placement is found to be appropriate, “the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief.” Gagliardo, 489 F. 3d 105 at 112, citing Carter, 510 U.S. 7 at 16.
In this case, Parent, through their attorney, provided the DOE with the statutorily required ten-day notice (“TDN”), informing the DOE that Parent would be placing the Student at Attending School for the 2022-2023 school year and seeking tuition funding for such placement (B). See also 20 U.S.C. § 1412(a)(10)(C)(iii)). The record further establishes that the Parent incurred an obligation to pay the Attending School $110,000 for the Student’s enrollment for the 12-month 2022-2023 school year, as reflected in the enrollment contract and tuition affidavit (E; H).
Tuition funding paid directly to a Private School is justified where parents have satisfied the Burlington/Carter test and have shown that they cannot afford to front the cost of their child’s tuition. See E.M. ex rel. N.M. v. New York City Dept. of Educ., 758 F. 3d 442, 452-454 (2d Cir. 2014); Mr. and Mrs. A., 769 F. Supp. 2d at 427; Connors v. Mills, 34 F. Supp. 2d 795, 804 (N.D.N.Y 1998).
The Parent credibly testified that they are financially unable to pay the Private School’s tuition costs as supported by submission of income tax returns (P- 1, 2). Parents further established that they have consistently cooperated with the DOE, including a showing that Parent visited the Proposed Placement and attended all IEP meetings (P; Tr. 84; 129).[26] Therefore, there are no factors on record that warrant a reduction on equitable grounds. The DOE presented no evidence to the contrary.
Based upon the foregoing, the Student is entitled to an award for tuition funding for the Student’s attendance at the Private School for the 2022-2023 12-month school year, to be paid directly to the Private School.[27]
Relief
In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act” (Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 [2d Cir. 2015] [citation omitted]). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 16 (1993).
Funding of Independent Evaluations The Parent requests, pursuant to the DPC, that the DOE fund “the cost of independent and/or privately obtained evaluations necessary for the student to receive FAPE” (P-A p. 5).
The DOE argues that such request is “vague”, and maintains, “it is well settled that a parent must express a disagreement with the appropriateness of a DOE evaluation in order to obtain a publicly funded IEE. D.S. v. Trumbull, 975 F.3d 163 (2d Cir 2020), and such disagreement is not supported in the hearing record (I-7).
The Undersigned IHO agrees with the DOE’s position. Although funding of IEEs are included as part of the proposed solution in the DPC, this relief was not pursued as part of the hearing or Parent’s closing brief (Tr. 34:15-18; 37:21-24, I-1through 9). The hearing record is devoid of any testimony or evidence specifically supporting the funding of specific evaluations, save for Parent’s attorney’s assertion that “the CSE was required to reevaluate [the Student] prior to recommending a change in his placement.” (II-7).
Additionally, a District is not required to conduct its own evaluations in developing an IEP but may rely on information obtained from the Student’s private school personnel, including sufficiently comprehensive progress reports, in formulating the IEP.[28] The record in this matter reflects that there was sufficient evaluative material before the CSE team. No areas of suspected disability appear to have been overlooked to warrant additional evaluations (J-N; 12-1 through 14).
Therefore, the Parent’s request is denied.
Attorney’s Fees The Parent included a notice of claim for attorneys’ fees in their due process complaint (A-5). The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction. See 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006).
Therefore, the undersigned IHO would be exceeding the permissible scope of authority by determining that Parent is the prevailing party entitled to costs. To the extent that Parent seeks reimbursement and/or payment of attorneys’ fees and costs from this IHO, their request is denied.
Conclusion The hearing record supports a finding that the DOE substantively and procedurally denied the Student a FAPE for the 2022-2023 school year.
As such, pursuant to Connors v. Mills, 34 F.Supp.2d 795, 799, 805-06 (N.D.N.Y. 1998) “once the Burlington prerequisites are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of the private placement immediately.” See also Mr. & Mrs. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d at 427 (stating that where the Burlington factors are met, the court may award retroactive direct payment of private school tuition.)
ORDER
Based above the above Findings of Fact, it is hereby:
ORDERED that the DOE shall, within thirty (30) days of this Order, directly pay to the Private School the cost of tuition for the Student’s 12-month placement at the Private School for the 2022-2023 school year, in the sum of $110,000
SO ORDERED.
DATED: November 4, 2022
ErynDeFontes
Impartial Hearing Officer
Eryn DeFontes, Esq.
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School DOE 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.
NYC DOE DISCLOSURE
Exhibit
Dated
Description
No. of
Pages
06/09/2022
Individualized Education Program (IEP)
33
06/09/2022
IEP Meeting Minutes
2
06/16/2022
Prior Written Notice (PWN)
4
06/16/2022
School Location Letter
3
04/12/2022
[REDACTED] Semi-Annual Educational Report
7
04/13/2022
[REDACTED] Annual Occupational Therapy Report
4
04/14/2022
[REDACTED] Annual Speech Therapy Report
2
04/20/2022
[REDACTED] Annual Physical Therapy Report
3
9
04/14/2022
[REDACTED] IEP Progress and Annual Report for 2021-2022 SY
1
10
03/16/2022
DOE Social History Update
2
11
03/10/2022
DOE Classroom Observation
2
12
05/06/2021
[REDACTED] Neuropsychological Evaluation
14
13
06/01/2021
Behavior Intervention Plan
5
14
09/23/2022
DOE Witness Affidavit, [REDACTED], [REDACTED] Assistant Principal
3
PARENT’S DISCLOSURE
NO.
DATE
NAME OF DOCUMENT
# pp.
ID/date
EV/date
A 07/01/22 Due Process Complaint 6
B 06/17/22 Ten Day Notice 3
C 02/22/22 Findings of Fact and Decision (IHO Case No.[REDACTED]) 20
D UNDATED [REDACTED] Program Description 4
E 07/05/22 Enrollment Contract 14
F 2022-2023 [REDACTED] Class Schedule 1
G 08/12/22 [REDACTED] Attendance Report 1
H 08/16/22 [REDACTED] Tuition Affidavit 1
I 04/11/22 [REDACTED] Annual Education Report 7
J 06/24/22 [REDACTED] Counseling Progress Report 3 K 06/21/22 [REDACTED] Occupational Therapy Progress Report 2 L 06/20/22 [REDACTED] Physical Therapy Progress Report 2
M 06/20/22 [REDACTED] Speech Therapy Progress Report 2
N 01/12/22 [REDACTED] Behavior Intervention Plan 3
O 08/31/22 Affidavit of [REDACTED], [REDACTED] (Curriculum Vitae attached) 18
P 03/29/22 Parent’s Income Tax Return 2021 2
Q 09/21/22 Affidavit of [REDACTED], [REDACTED] (Curriculum Vitae Attached) 16 IHO EXHIBITS I
10/21/2022
DOE Closing Brief
7
II
10/20/2022
PARENT’S Closing Brief
8
APPENDIX A
Redacted Information
Term Used In FOFD
[REDACTED]
Student
[REDACTED]
Parent/Guardian
[REDACTED]
Parent Attorney/Representative
[REDACTED]
DOE Attorney/Representative
[REDACTED]
CSE
Home District
Service District
[REDACTED]
[REDACTED]
Private School
[REDACTED]
Public School
[REDACTED]
Proposed Placement
[REDACTED]
Public School Assistant Principal
[REDACTED]
Private School Director
[REDACTED]
School Psychologist/District Representative
[REDACTED]
Related Service Provider/CSE Special Education teacher ([REDACTED])
[REDACTED]
Private School teacher
[REDACTED]
Psychologist
[REDACTED]
DOE social worker
[REDACTED]
Special Education District
Footnotes
[1] See Appendix A for identifying information.
[2] Exhibits are labeled as follows: Parents: A, B, C, etc., followed by page number; District: 1, 2, etc., followed by page number, IHO I, II, etc., followed by page number.
[3] The evidence is labeled as follows: DOE exhibits are labeled as “D-1”, etc. Parent’s exhibits are labeled as “P-1”, etc. IHO exhibits are labeled as “IHO-I” etc.
[4] I-2
[5] The Parent objected to introduction of DOE exhibits 10 (social history update) and 11(DOE classroom observation) on the ground that they be admitted “subject to connection, as the Parent alleged to have not received those documents pursuant to procedural safeguard requirements. The objection was overruled and the exhibits were admitted into the record (Tr. 25:2-25; 26:1-17).
[6] See Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982) at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[7] U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].
[8] U.S.C. § 1415[f][3][E][i].
[9] Rowley, 458 U.S. at 203.
[10] NYS Educ. Law § 4404(1)(c).
[11] The “Social Development” section of the IEP references the Private School’s progress report and notes, “A behavior p[l]an is included among [the Student’s] documents. It will follow that developed by [the Private School]” (D-1 pp. 4-6).
[12] The Private School developed a BIP for the Student (P-N pp.1-3). The Student’s BIP is referenced in the IEP (D-1 p.6)
[13] The evaluations and reports recommend these services (D-5-9; D-13).
[14] See generally, 34 C.F.R. §§ 300.320-300.328; see also, Questions and Answers on Individualized Education Programs (IEPs),Evaluations, and Reevaluations, 111 LRP 63322 (OSEP 2011)
[15] A special education teacher or provider may also serve as the district representative. The regular education teacher, the special education teacher or provider, the school psychologist, and the district representative may also serve as the individual who can interpret the instructional implications of evaluation results. 8 NYCRR §§ 200.3(a)(1)(i) - (vi).
[16] U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].
[17] Admitted into the hearing record as exhibit D-10.
[18] Admitted into the hearing record as exhibit D-11.
[19] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007],
[20] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007].
[21] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cir. 2006].
[22] Gagliardo, 489 F.3d at 115.
[23] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364).
[24] Frank G., 459 F.3d at 365).
[25] See also Private School educational, OT, PT and SLT progress reports (J-M).
[26] After the June 9, 2022 CSE review meeting, the parents visited Proposed Placement and were informed that it was not an ABA school and there was no Board Certified Behavioral Analyst (“BCBA”) or a Licensed Behavioral Analysts (“LBA”) on staff (Tr. 84).
[27] See E.M. at 442, 453-54 (“direct payment fits comfortably within the Burlington/Carter framework: like reimbursement, direct payment to the private school that provided the required educational program… ‘merely requires [the school district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.’”) (quoting Burlington, 471 U.S. at 370-71).
[28] G.W. v. Rye City Sch. Dist., 2013 WL 1286154, at *23 [S.D.N.Y. March 29, 2013], aff'd 554 Fed. App'x 56 [2d Cir. Feb. 11, 2014]; S.F., 2011 WL 5419847, at *10.