Impartial Hearing Decision

CASE NUMBER NYC: 229190

FINDINGS OF FACT AND DECISION

Student’s Name1: REDACTED (“Student”)

Date of Birth: REDACTED

School District: NYC

Hearing Requested by: Parent(s)

Request Date/Date Complaint Filed: 7/11/2022

Date(s) of Hearing: 7/27/2022, 7/29/2022, 8/16/2022, 10/17/2022, 1/10/2023, 2/7/2023, 3/9/2023, 3/29/2023, 3/30/2023

Actual Record Closed Date: 5/15/2023

Date of Decision: 5/19/2023

Hearing Officer: Teril Holston, Esq.

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

NAMES AND TITLES OF PERSONS WHO APPEARED ON 7/27/2022

For the Student:

REDACTED

For the Department of Education:

REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON 7/29/2022

For the Student:

REDACTED

REDACTED

For the Department of Education:

REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON 8/16/2022

For the Student:

REDACTED

REDACTED

For the Department of Education:

REDACTED.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/17/2022

For the Student:

REDACTED

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON 1/10/2023

For the Student:

REDACTED

For the Department of Education:

REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON 2/7/2023

For the Student:

REDACTED

For the Department of Education:

REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON 3/9/2023

For the Student:

REDACTED

REDACTED

REDACTED

Parent Witness:

REDACTED

For the Department of Education:

REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON 3/29/2023

For the Student:

REDACTED

REDACTED

Parent Witnesses:

REDACTED

REDACTED

For the Department of Education:

REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON 3/30/2023

For the Student:

REDACTED

REDACTED

REDACTED

For the Department of Education:

REDACTED

INTRODUCTION

This matter comes before the undersigned Hearing Officer at the request of Petitioners, the parents of the student, a REDACTED -year-old school student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”); New York State Education Law; and the New York State regulations.

On July 11, 2022, Petitioners filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) alleging that the District failed to provide the student with a Free and Appropriate Public Education (“FAPE”) for the 2022-2023 school year, in that the District failed to convene an IEP meeting, develop an IEP program that was reasonably calculated to confer an educational benefit, or provide a school placement before the start of the 12 month school year (P-A)2. The Petitioner is seeking tuition reimbursement/ direct payment for their unilateral placement of the student at Private School, a private program not approved by the Commissioner of Education for the education of students with disabilities for the 2022-2023 school year, door-to-door specialized transportation with a paraprofessional, at home ABA services, and reimbursement for meals (Id.). Furthermore, the parent alleges that the equities support their claim for tuition reimbursement for the school year at issue (Id.).

In light of the foregoing and as more fully discussed below, I find that a) the DOE failed to meet its burden that it offered the student FAPE for the school year at issue, b) the Private School offers the student with specially designed instruction sufficient to meet student’s needs, and c) the equities support the Parent.

PROCEDURAL HISTORY

On July 21, 2022, IHO^[1] was appointed to conduct an impartial hearing.^[3] On July 24, 2022, IHO 2 Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.

On March 9, 2023, the virtual impartial hearing on the merits of the DPC commenced. The hearing continued on March 29, 2023 and concluded on March 30, 2023. It was a closed hearing and the record closed on May 15, 2023.

At the hearing, the District’s representative presented no witnesses or documentary evidence, and conceded that a denial of FAPE had occurred for the school year at issue (Transcript, pg. 6). The District declined to make an opening statement.

The Parent, through their attorney, submitted to documents (Ex. P-A though P-II),^[4] including the affidavit testimony of the parent, the ABA Provider, the ABA Program Supervisor, and the Private School VP of Educational Operations, in support of the Parent’s case. The District objected to Exhibits P-II as untimely5. All of the documents were admitted to evidence. The parent rested and both parties gave closing statements.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.^[5] et seq.

FINDINGS OF FACT

After a full review of the record generated at hearing, I make the following findings of fact and determinations6:

The student was a REDACTED -year-old attending the Private School on the date of the hearing. The student has been diagnosed with Autism Spectrum Disorder, Level 3 with accompanying intellectual impairment, with accompanying language impairment (P-R). According to the student’s neuropsychological evaluation, the student requires ABA based intervention in the home and at school (Id.). The student is nonverbal and requires assistance completely all daily tasks (P-EE). For several years, the student received ABA therapy in the home until it stopped in November 2018 (P-EE). The parents noticed the student’s behavior got worse when there were no ABA services in the home (Id.). The parents have continuously requested at home ABA services to be included on the student’s IEP. The parent receives at home ABA services from a private agency (P-EE; P-FF; P-II). The

6 Although only portions of the evidence are referenced herein, the testimony and documents were reviewed and considered, in full. ABA provider noticed a regression in the student when she resumed working with him after a long break (P-FF). The student is receiving only 4 hours of ABA therapy, despite authorization for 10 hours, due to difficulty in locating another provider to work with the student (P-II). Specifically, the provider noted lack of timely payment from the District, the students size and aggressive behaviors as barrier to locating another ABA therapist to work with the student (id.).

The CSE convened on August 16, 2022, after the start of the 12-month 2022-2023 school year (P-EE). The parents have not received a copy of the 2022-2023 IEP or a school placement for the student (id.).

On June 17, 2022, the parent provided written notice of their intention to place the student at Private School (P-J). Private School is a small, specialized school serving students with Autism Spectrum Disorder (P-GG). The Private School offers a Behavioral, Academic & Social Enrichment (BASE) specifically for students with “intellectual impairments and who require a specific applied behavior analysis (“ABA”) program to learn” (id.). Most students in the program do not have fluid language skills and have severe behavioral needs (id.). The student has made substantial progress in the Private School (P-K; P-M).

The parent signed an enrollment contract with Private School for the 2022-2023 academic school year on July 11, 2022, at the cost of $110,500 (P-L). The parent testified that they cannot afford to pay the tuition and await reimbursement, pay for the student’s meals, or pay for the student’s transportation to school (P-H; P-BB; P-EE). The parents contracted with REDACTED to provide transportation, in addition to driving the student on some days when a transportation paraprofessional is not provided (PEE). Transportation to and from school remains a constant concern for the student (P-GG).

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) establishes that students with disabilities are entitled to a free and appropriate education (“FAPE”).^[7] A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.”^[8] In order to demonstrate that a FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.”^[9] The student's recommended program must also be provided in the least restrictive environment with non-disabled peers.^[10]

The parent seeks tuition reimbursement for the unilateral placement of the student in Private School for the 2022-2023 school year and the cost of related services. As set forth in 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 (1985) it is well established that a District may be required to reimburse parents for tuition payment to a private school if the services offered by the District were inadequate or inappropriate, the services selected by the parents were appropriate under the IDEA, and equitable considerations support the parent’s claim for reimbursement. Thus, consideration of such a claim has been expressed by a three-prong test: (1) was student denied FAPE; (2) the appropriateness of the Parent’s unilateral placement; and (3) a balancing of the equities.

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 FAPE11. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."^[12] “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”^[13] Further, “an IEP is not a form document” and it should be constructed after carefully evaluating the student.^[14]

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals.^[15]

Special education services must be provided by the district in conformity with the student's IEP.^[16] A denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's

11 20 U.S.C. § 1415[f][3][E][i]. IEP in a material way and thereby precludes the student from the opportunity to receive educational benefits.^[17]

However, school districts are not required to "maximize" the potential of students with disabilities18, but must provide "an IEP that is 'likely to produce progress, not regression,' and ... affords the student with an opportunity greater than mere 'trivial advancement'" ^[19]. The IEP must be "reasonably calculated to provide some 'meaningful' benefit"20.

The burden of persuasion and proof is by the preponderance of the evidence standard, which requires a finding that the existence of a fact is more probable than not. When the evidence is evenly balanced, the party with the burden loses. The burden of proof at an impartial hearing is on the district, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement21. Accordingly, the burden of production and persuasion is on the District for the first and third prongs and on the Parent for the second prong.

ANALYSIS

A. Prong I: FAPE

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden, presenting no documentary evidence or witnesses. The District offered no explanation as to how the CSE made its recommendation or how its evaluation appropriately describes the Student. Furthermore, the District Representative conceded that the DOE did not offer the student a FAPE for school year at issue. In short, the District declined to “offer a cogent and responsive explanation for their decisions” in creating the IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”. Endrew F., 137 S.Ct. at 1002. Therefore, the undersigned is constrained to find that the District failed to offer the student a FAPE for the school year at issue. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to 18 Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.

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

21 Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]. offer FAPE for school years at issue (P-J, see also P-R; P-S; P-V; P-X; P-EE; P-FF; P-GG; P-II). Although not the Parent’s obligation, the Parent has made out a substantial case that the DOE denied the Student a FAPE, causing a deprivation of educational benefits, and the DOE has not met its burden. The District did not offer or provide “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."^[22]

B. Unilateral Placement

In this case, as the District did not offer the student a FAPE for the school year at issue, the next issue to determine is whether the Parent’s unilateral placement of the student at Private School was appropriate. The Parent argues that the Private School is an appropriate unilateral placement for the student as it provides instruction and services that are specifically designed to meet the student’s unique needs and that enable the student to make meaningful progress there. For the reasons below, the Parent’s unilateral placement was appropriate.

Parents need not show that the placement provides every special service necessary to maximize the student's potential.^[23] When determining whether the parents' unilateral placement is appropriate, that placement must be “reasonably calculated to enable the child to receive educational benefits.”^[24] A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student.^[25]

A private school placement must be “proper under the Act”26, i.e., the private school must provide an educational program which meets the student's special education needs.^[27] 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.^[28] The private school need not employ certified special education teachers or have its own IEP for the student.^[29] 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

26 Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370 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.”^[30]

Moreover, where the failed to provide the student with a FAPE, the District is precluded from arguing that the testing, evaluations, or assessments introduced by the Parent’s and utilized by the unilateral placement are not sufficiently comprehensive evaluations of the student’s functioning levels and needs, as it is the District that retains the requirement to comprehensively evaluate the student.^[31]

a. Student Needs

In this case, the Parent submitted two neuropsychological evaluations, progress reports, as well as the affidavit testimony of the VP of Educational Operations, the parent, the ABA provider and supervisor, detailing the student’s needs (See Generally, P-R; P-S; P-V; P-X; P-Y; P-Z; P-EE; P-FF; PGG; P-II).

b. Program

The Private School is a private, specialized educational program for students with autism, ages 5-21 (P-K, see also P-GG). Specifically, the student was enrolled in the BASE program which utilized an ABA approach (id.). The students in the BASE program undergo a Functional Behavior Assessments. Further the school utilizes small class sizes with a maximum of 6 students per special education teacher and assistant teacher (id).

c. Progress

With respect to the student’s progress at Private School, 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.^[32] Here the parent, the ABA provider, and the VP of Educational Operations detailed the progress that they have seen in the student since attending the Private School (P-EE; P-FF; P-GG). The student’s progress report further emphasizes his progress, as well as his continuing need for such a structured environment (P-X; P-Y; P-Z).

Based on all of the above, the parent has met the burden that the Private School is an appropriate placement for the student for the 2022-2023 school year as required.

The weight of the evidence demonstrates that the student’s individual special education needs were addressed by the private school and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits."^[33] Of note, the District offered no persuasive arguments concerning the appropriateness of Parent’s unilateral placement, nor challenged the equities in this action. Further, the District had the opportunity to cross-examine the Parent’s witnesses. Under these circumstances, I find that the Parent’s witnesses and documentary evidence are credible.

C. Equitable Considerations

Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.”^[34]

“With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412 [a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]). Reimbursement may also be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice 10 business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense."^[35] This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools."^[36] Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision.^[37] Parents of students enrolled in private school are not exempted from 10-day notice requirements.^[38] The Second Circuit has recently reiterated that "[t]he ten-day notice requirement gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections—all before the parents enroll their child in a private school and file a due process complaint" and that "if parents unreasonably reject the school district's proposed changes to the IEP, or are otherwise uncooperative, courts and hearing officers are fully empowered to deny them reimbursement"^[39] However, the hearing officer must excuse the failure to provide timely notice if, in her discretion, she determines that the reason for the lack of timely notice is that the school district prevented the parents from providing the notice, the parents had not received the procedural safeguards notice advising of the requirement to provide notice, or compliance with the notice requirement would likely result in physical harm to the student.^[40] In the instant case, the parent provided the necessary Ten-Days’ Notice of their concerns with the District’s offer of a FAPE for the student for the 2022-2023 school year on June 17, 2022 (P-J). Therein, the parent detailed their specific concerns with the recommendations and provided notice of their intention to unilaterally place the student (Id.). Further, the parent participated in the IEP meeting after the start of the school year.

By way of relief, Parent seeks direct funding and tuition reimbursement for the fees already paid to the Private School. The record establishes that Parent incurred an obligation to pay the Private School (P-F; P-L). Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”). I find that the unilateral tuition costs are extensive and may exceed the Parent’s ability to fund and await reimbursement, and the Parent filed a DPC (P-BB). Equity demands that the DOE fund the student’s Private School tuition to the extent that the parent was unable to do so in this instance.

In balancing the equities, I find in favor of the Parent. To the extent possible, the parent has participated in all aspects of the special education process. I find no issue with the reasonableness of the costs, including tuition, associated with the Private School and the Student is enrolled for the 2022-2023 school year (P-F; P-L).

D. MEALS PURSUANT TO 504 OF THE REHABILITATION ACT

The parent further seeks reimbursement of the cost of the student’s breakfast and lunch during school days as the Private School does not provide breakfast or lunch to students (P-A; P-H; P-I; P-P; PQ). The parent estimates that student’s breakfast and lunch total approximately $15 per day, (P-H). The hearing record demonstrates that the student is a student with a disability under Section 504, and that student would qualify for free meals as all students in New York City qualify for free meals. Further, the sole reason the student is being denied free meals is because the DOE was unable to appropriately serve student. Therefore, parent is entitled to reimbursement for the costs of meals related to student.

Although not a violation of the IDEA, it is a violation of Section 504 and the Americans with Disabilities Act (“ADA”) to deprive a disabled student of free meals that the student would have received at public school, when the student is attending a private school because the District is unable to provide a FAPE in a public school setting by reason of the student’s disability.41 In making such a claim, the parent See C.D. ex rel. S.D. v. New York City Dep’t of Educ., WL 400382 (S.D.N.Y., Feb 11, 2009); 2009 41

U.S. Dist. Lexis 10167. must show that a reasonable accommodation can be made, and that their disability is “a substantial cause of the exclusion or denial” at issue.^[42]

Under Section 504, an individual with a disability includes any person who “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having an impairment.”^[43] The Southern District of New York uses a two-step approach to determine whether student plaintiffs alleging Section 504 discrimination are otherwise qualified for the benefit they have been denied. The student is otherwise qualified “if she meets all of a program’s other essential requirements.... If a plaintiff does not meet the essential requirements of a program, however, the court can determine whether the plaintiff would meet those requirements if a reasonable accommodation were made.^[44] Finally, a litigant must show that the disability was a “substantial cause of the exclusion or denial” at issue.^[45]

The District Court in C.D. ex rel. S.D. found that the DOE’s policy of not providing free meals to minor students with disabilities who attended private special education schools was impermissibly discriminatory and a violation of Section 504, because it denied those students a benefit it provided to public school students solely by reason of the students’ attendance at private schools based on their disabilities.

Parent’s request that the DOE be ordered to pay for the student’s breakfast and lunch on school days while attending the Private School during the 2022-2023 school year is brought under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”). Hearing officers in New York have jurisdiction over claims brought under Section 504.^[46]

Moreover, the District did not contest the parent’s request for reimbursement or the amount sought. The DOE’s failure in the instant case to provide the student with free breakfast and lunch while attending the Private School, when it provides free breakfast and lunch to similarly situated public school students, is discriminatory and a violation of Section 504. In the absence of contradictory evidence, I find the amount requested reasonable.

Consequently, the DOE must reimburse Parent for the expenses incurred in providing those meals to Student while attending Private School during the 2022-2023 school year.

E. Reimbursement for Transportation

Based on the District’s failure to provide the student with a FAPE, as discussed above, the student is entitled to Special Education transportation for the 2022-2023 school year. The parent submitted a contract with REDACTED to provide transportation services at a rate of $250 per day on September 13, 2021 (P-D). Further, the parent testified and submitted email documentation as to the District’s failure to consistently provide the student with a bus paraprofessional. Of note, parent submitted invoices for September 14, 2021, and September 15, 2021, dates outside of the 2022-2023 school year covered by the DPC (P-A; P-D). Therefore, the parent is entitled for direct payment or reimbursement for travel expenses incurred only during the 2022-2023 school, upon submission of invoices to the District at a rate not to exceed $250 per day.

F. At Home ABA Therapy

Courts have determined that in IDEA claims, IHOs have the discretion to grant appropriate relief.^[47] The only restriction is that “the relief is to be appropriate in light of the purpose of the Act.”^[48] “Equitable considerations are relevant in fashioning relief and the court enjoys broad discretion in so doing.”^[49] An award of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies have been deemed appropriate.^[50]

While, the record supports a finding that the student is entitled to home-based services, the formulation of the recommended hours should not disregard in its entirety the program and related services to be provided to the student as a whole, over the school year in issue. Lastly, any award shall consider the nature of the violation and the impact the award may have on the child’s educational needs.^[51] The student is REDACTED years old and attends a full-time ABA program and still requires additional support in the home according to his providers. While the student is only receiving 4 weekly hours of ABA, the student requires 10.52 Therefore, I find the student entitled to continuation of the 10 hours ABA in the home to make sufficient academic progress.

CONCLUSION

Based on a review of the record and the findings mentioned above, the undersigned makes the following

findings:

• The District failed to provide the student with a FAPE during the 2022-2023 school year.

• The parent’s unilateral placement at Private School was appropriate and equitable considerations support an award of tuition reimbursement and direct funding for the 2022-2023 school year.

• The student is entitled to special education transportation to and from school, and reimbursement.

• The student is entitled to at home ABA program.

• The student is entitled to reimbursement for meals.

• The undersigned has reviewed the parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDER

IT IS HEREBY, ORDERED, that the New York City Department of Education shall directly pay Private School the balance for all tuition and fees for the student’s unilateral placement at Private School for the 2022-2023 school year and reimburse parents for all tuition and fees paid with 30 calendar days of this Order; IT IS FURTHER, ORDERED, that the New York City Department of Education shall provide door to door special education transportation to and from school with a bus paraprofessional, or direct funding for REDACTED for trips to and from school when a bus professional is not provided, by issuing payment directly to the provider within thirty (30) days of the submission of copies of the invoices for such services rendered, or reimburse the parent for gas mileage at the DOE determined rate; IT IS FURTHER, ORDERED that the New York City Department of Education is directed to fund 10 weekly hours of ABA Therapy, to be scheduled at the parent’s discretion, not to expire until 2 (two) years from the date of this Order, who shall be paid at reasonable market rates consistent with rates that have been paid by the Implementation Unit of the DOE’s impartial hearing office for comparable services within the six (6) month period prior to the date of this Order; and IT IS FURTHER, ORDERED that the New York City Department of Education is directed to reimburse the parents at the rate of $15 per day for meals during the 2022-2023 extended school year, upon confirmation that the student attended school.

DATED: SO, ORDERED

5/19/2023 /s/ Teril Holston

Teril Holston, Esq., IHO

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.

IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD

I, Teril Holston, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record are either the original or a true copy of the original materials that were provided to me in this matter.

DATED: CERTIFIED BY

5/19/2023 /s/ Teril Holston

Teril Holston, Esq., IHO

APPENDIX A – REDACTION IDENTIFICATION PAGE

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

DOE’S EXHIBITS

IHO’S EXHIBITS

I. Decision on Consolidation 7/24/2022 1 page

II. Pendency Decision 7/27/2022 4 pages

III. Amended Pendency Decision 2/7/2023 4 pages

Footnotes

[1] issued an interim decision denying consolidation with another matter (IHO-I). On August 18, 2022, IHO 1 issued an interim order granting pendency, after the conclusion of a pendency hearing (IHO-II). On November 30, 2022, IHO 1’s appointment was rescinded. On December 12, 2022, the undersigned was appointed to conduct an impartial hearing. On January 10, 2023 and February 7, 2023, status conferences were held. On February 7, 2023, the pendency order was amended (IHO-III).

[3] All information is upon information and belief, after review of hearing record developed by IHO 1.

[4] A more detailed list of exhibits is attached.

[5] Exhibit P-I was entered into evidence, as modified on the record (see transcript).

[7] See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005).

[8] Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982).

[9] See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206.

[10] See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

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

[13] Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 999

[14] Id.

[15] See, Walzczak, supra; Id., Appeal No. 00-005.

[16] 20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; 20 U.S.C. § 1414[d]; 34 CFR 300.320.

[17] T.L. v. New York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *13 [E.D.N.Y. Sept. 2, 2011]; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205, 2010 WL 1049297 [2d Cir. Mar. 23, 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821-22 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000].

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

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

[23] . Frank G. v Bd. of Educ., 459 F.3d 356, 364-65 (2d Cir. 2006)

[24] Id.; see Gagliardo, 489 F.3d at 115.

[25] 20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89.

[27] See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129.

[28] Carter, 510 U.S. at 14

[29] Id.

[30] Gagliardi, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65.

[31] see 34 CFR 300.305[c]; 8 NYCRR 200.4[b][5][iii]; A.D. v. Bd. of Educ., 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]; see also Application of the Dep't of Educ., Appeal No. 21-194; Application of the Dep't of Educ., Appeal No. 20-131; Application of the Dep't of Educ., Appeal No. 18-125; Application of a Student with a Disability, Appeal No. 180-049; Application of a Student with a Disability, Appeal No. 15-076; Application of a Student Suspected of Having a Disability, Appeal No. 15-038; 17 Application of a Student with a Disability, Appeal No. 14-033; Application of a Student with a Disability, Appeal No. 14-028; Application of a Student Suspected of Having a Disability, Appeal No. 14-003; Application of the Dep't of Educ., Appeal No. 13-198; Application of the Dep't of Educ., Appeal No. 13-072; Application of a Student with a Disability, Appeal No. 12-027

[32] Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 (1st Cir. 2002)

[33] Frank G., 459 F.3d at 364.

[34] Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374).

[35] 20 U.S.C. § 14129(a)(10)(C)(iii)(I); see 34 CFR 300.148(d)(1)

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

[37] Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 (6th Cir. 2003); Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 (1st Cir. 2002); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

[38] S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-63 (S.D.N.Y. 2009).

[39] Bd. of Educ. of Yorktown Cent. Sch. Dist. v C.S., 990 F.3d 152, 171 (2d Cir. 2021).

[40] See 20 U.S.C. § 1412(a)(10)(C)(iv); 34 C.F.R. § 300.148(e)(1)

[42] Id. at 32-34 and 23-26.

[43] 34 C.F.R. § 104.3(j)(1).

[44] .” C.D. ex rel. S.D., 2009 WL 400382, at *7, citing Sch. Bd. of Nassau County v. Arline, 480 U.S. 273, 288 n. 17 (1987).

[45] Meekins v. City of New York, 524 F. Supp. 2d 402, 407 (S.D.N.Y. 2007).

[46] See A.M. ex rel. J.M. v. New York City Dept. of Educ., 840 F. Supp. 2d 660, 671 (E.D.N.Y. 2012)

[47] 20 U.S.C. § 1415 [i][2][C][iii]

[48] Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985)

[49] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993);

[50] Burlington at 369; see Polera v Board of Education, 288 F.3d 478, 486 (2d Cir. 2002).

[51] see M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8 [S.D.N.Y. Mar. 30, 2017] ["Common sense and experience teaches that services that may be valuable for, or even critical to, a child's educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity”] 52 The student is entitled to 10 hours of ABA therapy services, but the provider selected by the parent can only provide 4 hours per week. Given the student’s need, the parent may seek other providers to ensure the student is making academic progress.