New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 576613 – NYC: 229295

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED] [REDACTED]

School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: July 12, 2022

Date(s) of Hearing: August 15, 2022

September 23, 2022

October 24, 2022

November 28, 2022

January 9, 2023

February 16, 2023

March 21, 2023

April 28, 2023

May 12, 2023

May 26, 2023

Actual Record Closed Date: June 1, 2023

Date of Decision: June 14, 2023

Date of Distribution if Different than Decision Date: N/A Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

August 15, 2022

For the Student:

[REDACTED] [REDACTED], Legal Assistant

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED

September 23, 2022

For the Student:

[REDACTED] [REDACTED], Esq.

For the Department of Education:

[REDACTED] [REDACTED], Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

October 24, 2022

For the Student:

[REDACTED] [REDACTED], Esq.

For the Department of Education:

[REDACTED] [REDACTED], Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

November 28, 2022

For the Student:

[REDACTED] [REDACTED], Esq.

For the Department of Education:

[REDACTED] [REDACTED], Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

January 9, 2023

For the Student:

[REDACTED] [REDACTED], Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED

February 16, 2023

For the Student:

[REDACTED] [REDACTED], Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED

March 21, 2023

For the Student:

[REDACTED] [REDACTED], Esq.

For the Department of Education:

[REDACTED] [REDACTED], Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

April 28, 2023

For the Student:

[REDACTED] [REDACTED], Esq.

[REDACTED] Howard, Executive Director, [REDACTED] School [REDACTED] [REDACTED], Parent Student

For the Department of Education:

[REDACTED] [REDACTED], Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

May 12, 2023

For the Student:

[REDACTED] [REDACTED], Esq.

[REDACTED] [REDACTED], Director, [REDACTED] School [REDACTED] Program

[REDACTED] [REDACTED], Parent Student

For the Department of Education:

[REDACTED] [REDACTED], Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

May 26, 2023

For the Student:

[REDACTED] [REDACTED], Esq.

[REDACTED] [REDACTED], Physical Therapist

[REDACTED] [REDACTED], Parent Student

For the Department of Education:

[REDACTED] [REDACTED], Esq.

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about July 12, 2022. Ex. A.^[1] On July 21, 2022, I was appointed by the New York City Department of Education to hear this matter. Parent seeks reimbursement for tuition for [REDACTED]’s placement at [REDACTED] [REDACTED] (“[REDACTED]”) and for the costs after-school services, transportation, and meals for [REDACTED] for the 2022-2023 12-month school year. Ex. A.

I conducted a prehearing conference on August 15, 2022. An advocate appeared on behalf of [REDACTED]’s parent; counsel for the Department did not appear due to a scheduling conflict. Tr. 2-3. The advocate confirmed that [REDACTED]’s parent was seeking tuition reimbursement for [REDACTED] and after school services, and the costs of transportation and meals, for [REDACTED] for the 2022-2023 12-month school year. The advocate reported that pendency was not an issue and that the Department had recommended the case for settlement. I scheduled the hearing for September 23. On September 23, counsel for [REDACTED]’s parent and for the Department appeared. Counsel reported that they were engaged in the settlement process, and the hearing was rescheduled for October 24.

On October 24, counsel reported that they continued to negotiate the settlement, and the hearing was continued to November 28. On November 28, counsel requested more time to continue with the settlement process. The matter reconvened on January 9; counsel for Parent appeared; no one appeared on behalf of the Department. Counsel for Parent reported that the parties continued to negotiate a settlement. The hearing was rescheduled for February 16. On February 16, counsel for Parent appeared; again, no one appeared on behalf of the Department. Parent’s counsel presented an opening statement. Evidentiary and legal issues were discussed.

On March 21, counsel for Parent and for the Department appeared. Counsel for the Department stated that the Department was resting its case without presenting testimony or offering documents in evidence. Parent’s Exhibits A through J were admitted in evidence. The hearing continued on April 28 with the testimony of the Executive Director of [REDACTED] and [REDACTED]’s father. Parent’s Exhibits K through O were admitted in evidence; proposed exhibit P was withdrawn as duplicative. The hearing continued on May 12 with the testimony of the director of [REDACTED]’s after school programming. Parent’s Exhibits Q and R were admitted in evidence. Parent had difficulties scheduling the testimony of the after school physical therapist, and the hearing was completed on May 26 with the physical therapist’s testimony and closing statements.

The record was closed on June 1, 2023, upon the receipt and review by the Hearing Officer of the transcript of the final day of hearing.

Counsel requested extensions of the compliance date, and written Orders of Extension were issued on August 15, September 23, October 26, and November 28, 2022 and January 9, February 16, March 21, April 28, and May 12, 2023. The reasons for granting the extensions are set forth in the Orders.

JURISDICTION

The due process hearing was held, and a decision in this matter is now 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 New York State Education Law § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. Part 200.

Parent, through counsel, consented to the hearing being conducted via videoconference and the decision being distributed via email.

ISSUES

At the hearing, [REDACTED]’s parents sought funding from the Department for tuition owed to [REDACTED] for [REDACTED]’s enrollment at [REDACTED], and for the costs of after school ABA services and physical therapy, for the 2022-2023 school year. At the hearing, the Department did not defend the special education program that it offered to [REDACTED] for the 2022-2023 school year. The issues to be resolved are:

1. Was [REDACTED], with after school ABA services and physical therapy, an appropriate unilateral parental placement for [REDACTED] for the 2022-2023 school year?

2. Does the balance of the equities favor [REDACTED]’s parents?

FINDINGS OF FACT

1. [REDACTED] is an [REDACTED]-year-old boy who is eligible for special education and services under the IDEA and whose disability, for the purposes of the IDEA, is classified as autism. Ex. A at 2.

2. [REDACTED] is diagnosed with [REDACTED] and [REDACTED] [REDACTED]. Tr. 97; Ex. K at 1-2.

3. [REDACTED] struggles with cognition, communication, socialization and play skills, sensory processing and tolerance, sensory defensiveness, attention, and distractibility. Due to his [REDACTED], he experiences difficulties with balance and ambulation. Tr. 97, 101-103; Exs. B, K, N, O, R. [REDACTED]’s speech is limited to requesting desired items; he is unable, at this time, to sustain conversation. Tr. 98; Ex. R.

4. [REDACTED] demonstrates “very high levels of self-injurious behavior,” including headto-surface hitting, hand-to-head hitting, and biting himself. Tr. 98-99. He also engages in aggression, negative vocalizations, crying, whining, mouthing objects, disruptive vocal stereotypy, and self-stimulatory repeated motor movements, such as slapping a ball repeatedly or twisting and turning items in his hands. Tr. 99-100; Exs. B, K at 3, N, O, R.

5. [REDACTED] received speech, occupational and physical therapies through the Early Intervention program. Ex. K at 2.

6. [REDACTED] attended an ABA-based preschool program for children with autism. Ex. K at 2.

7. For kindergarten, the Department placed [REDACTED] in a 12:1:1 District 75 program, and he was later transferred to an 8:1:1 classroom with the support of a paraprofessional.

These programs did not incorporate ABA, and [REDACTED] regressed. Ex. K at 2.

8. In June 2019, [REDACTED] was evaluated by a pediatric neuropsychologist, who recommended that [REDACTED] receive a school ABA program and a home-based program of ABA (at least ten hours per week) with 1:1 individualized instruction and the related services of physical and occupational therapies and an emphasis on ADL and social skills. Ex. K at 5-7.

9. [REDACTED] was enrolled at [REDACTED] in November 2019. Tr. 96, 136; Ex. B at 1.

10. The CSE convened in December 2021 to develop an IEP for [REDACTED] for the 2022-2023 school year and recommended that [REDACTED] attend a 6:1:1 program at a District 75 school. At the meeting, [REDACTED]’s parents expressed their concerns about this recommendation because (a) [REDACTED] had attended a 6:1:1 District 75 program in the past, and his needs had not been met and (b) [REDACTED] had been making progress with an ABA program. Ex. C.

11. The Department did not offer [REDACTED] a school placement for the 2022-2023 school year. Ex. C. [REDACTED]’s Program

12. [REDACTED] is a nonpublic, not-for-profit ABA program for children with autism. The school currently enrolls 27 students. Most classes include four students with four instructors. Tr. 88, 92; Ex. J.

13. The Executive Director of [REDACTED], who is a Board Certified Behavior Analyst (“BCBA”) and a New York State Licensed Behavior Analyst (“LBA”) with a doctoral degree in ABA, described ABA as a research-based intervention for children with autism and “a science that looks at understanding how individuals learn” and “look[s] at socially significant behaviors, so meaningful behavior that we want to change” and focusing on

“observable responding” and “the interaction between behavior and the environment or the behavior and an intervention.” Tr. 77-78, 93-94, 128. 14. Within ABA, educators “are looking to measure behavior and understand why behavior is happening so that we can use that information to develop interventions to change behavior, and ultimately decrease maladaptive or dangerous behaviors and increase adaptive, safer, and more functional behaviors.” Tr. 95-96. 15. At [REDACTED], instruction is provided utilizing ABA in a 1:1 ratio throughout the school day (except during lunch and recess) and programming is individualized for each student. The 1:1 instructors are registered behavior technicians (“RBTs”) who have completed training and passed an examination administered by the Behavior Analytic Certification Board and “demonstrate core competencies related to applied behavior analysis and the delivery of ABA services.” Tr. 88- 89, 91; Ex. R. 16. At [REDACTED], students are assessed as to their skills upon enrollment and receive ongoing assessment, and data is collected daily, in order to ensure that they are making progress on goals and with respect to targeted behaviors. As students attain their goals, new programming and goals are introduced. Tr. 89-90, 129-130. 17. Most students have both skill acquisition programming and behavior intervention plans. Tr. 90. 18. [REDACTED] personnel have developed based upon assessment and data collection of [REDACTED], and are implementing, individualized goals, objectives, and programming for [REDACTED] for the 2022-2023 12-month school year in the areas of: waiting appropriately (without engaging in self-injurious behaviors); tolerating changes in routine (without engaging in self-injurious or other inappropriate behaviors); tolerating haircuts, sounds, wearing a GPS device, wearing socks, shoes and orthotics, and wearing winter clothing; ADL skills including dressing, brushing his teeth, eating, washing hands, and toileting; fine and gross motor skills; answering social questions; following one-step instructions; articulation and verbal responses; learning names of familiar people; greetings; playing games; labelling objects and pictures; requesting preferred items; completing tasks; counting; and completing morning classroom routines. Ex. R at 1-21, 33-39. 19. [REDACTED]’s school schedule for the 2022-2023 12-month school year at [REDACTED] includes sessions for working on [REDACTED]’s individualized goals, which are specified on the schedule. For example, during morning routine, [REDACTED] is working on hand-washing, tolerating changes to routine, and making requests. Throughout the morning and afternoon, for example, he works on his individualized goals in the areas of sensory tolerance, play and social skills, attention to task, gross motor skills, communication, labeling, ADL skills (including toileting), and following instructions. Ex.

I; Tr. 104-107; see also Ex. R. 20. [REDACTED] addresses [REDACTED]’s behaviors through a behavior intervention plan and through skill acquisition programming to learn that he does not have to engage in negative behaviors to get what he wants and that, instead, he can utilize a communication button to access desired items, which he learned during his first year at [REDACTED]— he is now more available for learning. Tr. 108-110; Ex. R at 22-32 (monthly behavior evaluations). 21. [REDACTED] addresses [REDACTED]’s challenges with socialization. When [REDACTED] entered [REDACTED], he was unwilling to engage with staff. [REDACTED] staff worked with Colon on “systematic desensitization” to tolerate engaging with other people. Then, they moved to greetings, answering social questions, play skills, vocalizing, articulation, labeling familiar people (so that if he wanted to gain attention from a certain person, he knows that person’s name). Tr. 110-111. 22. The Executive Director explained that “all of [REDACTED]’s behavior reduction has been directly supportive of an opportunity to socialize with others, because instead of [REDACTED] engaging in problem behavior, he now is open and available” to opportunities to interacting with other students. Tr. 111-112. 23. Even though the school has a 1:1 teaching model, [REDACTED] is in class and in the school building with other students, and there are multiple opportunities for student interactions. Tr. 112-113. 24. [REDACTED] uses an iPad as a supplementary communication aid to respond to others when they do not understand what he is saying. Tr. 97-98. 25. [REDACTED] provides speech and occupational therapies in a “consultative model.” Tr. 143. The therapists work with [REDACTED] staff to evaluate students and to inform students’ programming in the areas of speech and occupational therapy. For [REDACTED], the speech therapist has consulted on a program to improve his speech articulation, and the occupational therapist has consulted on programs involving fine motor activities and task completion. Tr. 143; Ex. R at 1. 26. [REDACTED] utilizes the consultative model for related services because, for students like [REDACTED], needs relating to speech and OT occur throughout the school day, and his teachers must incorporate speech and OT-related programming throughout the school day in order for [REDACTED] to develop these skills. Tr. 143-144. 27. [REDACTED] provides parent training and counseling to [REDACTED]’s parents, and they have benefited from this service, particularly in understanding how, at home, to reinforce [REDACTED]’s appropriate behaviors and not to reinforce problem behaviors. Tr. 145. 28. [REDACTED] made progress at [REDACTED] during the 2022-2023 school year (Tr. 97, 99, 125-126, 156; Ex. R at 2-32): a. His behaviors have improved: he no longer engages in mouthing objects, and selfinjurious behaviors are reduced. b. Sitting at a desk and ambulating throughout the classroom and the school. c. Participating in art activities and games with classmates. d. Identifying and labeling colors. e. Making requests through gestures; requesting preferred items and activities using one-word utterances and/or his iPad.. f. Improving vocalizations. g. Greeting people and respond to greetings. h. Waiting for access to preferred items. i. Tolerating wearing a helmet to ride a bicycle. j. ADL skills, including brushing his teeth and toileting. After School Services 29. [REDACTED] receives four hours per week of after school ABA services from [REDACTED]’s after school [REDACTED] Program. Tr. 172. These ABA services are provided by RBTs. Tr. 120, 184-185. 30. [REDACTED]’s Executive Director opined that [REDACTED] needs after school ABA services (in addition to a full school day ABA program) in order to make progress. He needs services in both home and school to support the learning and practice of skills in both settings in order to make meaningful progress. Without services at home, he would demonstrate his negative behaviors at home, which would slow his progress in school, and he would experience regression. Tr. 120-121, 142, 177-178, 180-182, 186-187, 191-192. 31. In addition, [REDACTED] needs services after school because his deficits are so severe that the school day is not long enough to address the scope and depth of his delays. Tr. 140, 186-187, 191-192. 32. The after school ABA instructors work with [REDACTED] on behavioral skills (including decreasing aggression), waiting, compliance with instructions, task completion, making requests, articulation, ADL skills, and play skills. Tr. 150-152, 174-182. 33. [REDACTED] has made progress in the programs that he has been working on with the after school ABA instructors: he has improved sitting, waiting, articulation, play skills, and listening to a story. Tr. 187-189. 34. The director of [REDACTED]’s after school programming opined that [REDACTED] needs ten to fifteen hours per week of after school ABA services. Tr. 185. 35. [REDACTED] also needs after school physical therapy twice per week to complement his gross motor movement program at school because [REDACTED] “is incredibly far behind” with respect to gross motor skills: he has low muscle tone, and his gait is uncertain and unbalanced. Tr. 123, 153-154. 36. After school physical therapy is provided by a licensed physical therapist who works through an agency, [REDACTED]. Tr. 207; Ex. E. 37. The after school physical therapist works with [REDACTED] on safe ambulation, balance, stair negotiation, stretching, sitting, strengthening, wearing leg braces (ankle foot orthoses), and walking longer distances (such as around the block). Tr. 153-154, 209, 211-216. 38. The physical therapist opined that [REDACTED] needed home-based physical therapy because he is making progress and because he has experienced regression with there has been a break in services. Tr. 217-219.

Equities

39. [REDACTED]’s parents submitted a “ten-day” notice letter to the Department on June 24, 2022, expressing their concerns with the IEP that the Department had developed for [REDACTED] for the 2022-2023 12-month school year and informing the Department that they would continue [REDACTED]’s attendance at [REDACTED] and seek funding for the costs of [REDACTED] and after school services for [REDACTED]. Exs. C, D.

40. [REDACTED]’s parents signed an enrollment contract for [REDACTED]’s attendance at [REDACTED] for the 2022-2023 12-month school year. Tr. 95; Ex. Q. The tuition amount is $135,850.00 for the 12-month school year. [REDACTED]’s parents are obligated to pay this amount. Exs. F, Q.

41. [REDACTED]’s parents were, at the time of the hearing, financially unable to pay the tuition. Tr. 156-157; Exs. L, M.

CONCLUSIONS OF LAW

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121.

A board of education may be required to pay for education services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District

v. Carter, 510 U.S. 7 (1993). A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and

(2) the IEP developed by the district is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137

S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v). The school district must then implement the IEP. 8 N.Y.C.R.R. 200.4(e)(1), (3).

In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.

In this case, the DOE did not present testimony or documentary evidence with respect to its provision of FAPE to [REDACTED] for the 2022-2023 school year. Since the Department did not offer any testimony or documentary evidence to demonstrate that a program it had developed for [REDACTED] for the 2022-2023 school year was “reasonably calculated” to permit him to make progress given his unique circumstances, the Department did not carry its burden of proof and cannot prevail on the first “prong” of the Burlington/Carter test. Was [REDACTED] an appropriate placement for [REDACTED] for the 2022-2023 school year? [REDACTED]’ parents bear the burden of proof concerning the appropriateness, for [REDACTED], of [REDACTED]’s program and the after school services. See, e.g., Frank G. v. Board of Education of the Hyde Park Central Sch. Dist., 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S.Ct. 169 (2007). To meet this burden, [REDACTED]’s parents must show that the educational services provided at [REDACTED] and during with after school services addressed [REDACTED]’s identified special education needs. See C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 82 (2d Cir. 2014); C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free Sch. Dist., 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. 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.

Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 831 F. App’x 29, 78 IDELR 2 (2d Cir. 2020) (Summary Order). Furthermore, as the Second Circuit held in R.E.: “parents may provide evidence that the child made actual progress at their chosen private placement to support the adequacy of that placement.” 694 F.3d at 187 n.3.

The preponderance of the evidence establishes that [REDACTED] provided [REDACTED] with an educational environment in which his specific, severe, extensive, and identified constellation of special education needs are addressed. In particular, [REDACTED] addresses [REDACTED]’s needs for detailed and carefully developed individualized ABA-based programming, one-to-one instruction by individuals qualified and experienced in ABA, a Behavior Intervention Plan, integration of input from speech and occupational therapists, and a 12-month program that he required in order to address his behavioral and global delays so he could learn. The record is clear as to the extent of the individualized special education and other supports that [REDACTED] personnel provide to [REDACTED]. See paragraphs 12 through 27, above. [REDACTED] made progress at [REDACTED] during the 2022-2023 school year. See paragraph 28, above.

Furthermore, the record demonstrates that [REDACTED] needs ABA in order to learn. See paragraphs 7, 8, 28, 30, above. For many years, federal courts have recognized ABA as an appropriate and effective teaching methodology for children with autism. See, e.g., A.M. v. New York City Dep’t of Educ., 845 F.3d 523, 545 (2d Cir. 2017) (where reports “specifically recommended the continued need for ABA therapy,” IEP is substantively inadequate because it did not recommend any ABA); R.E., 694 F.2d at 194; M.H. v. New York City Dep’t of Educ., 712 F. Supp. 2d 125 (S.D.N.Y. 2010), aff’d 685 F.3d at 252; see also 34 C.F.R. § 300.39(b)(3) (“[s]pecially designed instruction means adapting, as appropriate to the needs of [the child], the content, methodology, or delivery on instruction”) (emphasis added). [REDACTED]’s constellation of challenges is such that his special educational needs cannot be met within the confines of a standard school day. As a result, as the witnesses credibly and consistently testified, [REDACTED] requires services provided outside of the standard school day in order to make meaningful progress. [REDACTED] needs additional home-based ABA therapy and physical therapy because his severe needs are such that the school day is not long enough to address his needs and he has needs that cannot be met in the context of a school day. See paragraphs 30-38, above. During the 2022-2023 12-month school year, [REDACTED] has made progress across the range of his significant and varied autism-related challenges.

The evidence thus demonstrates that [REDACTED] with after school services provide [REDACTED] with an appropriate special education program. See, e.g., T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 878 (2d Cir. 2016) (unilateral program appropriate when it meets child’s needs and child makes progress); F.B. v. New York City Dep’t of Educ., 132 F. Supp. 3d 522, 555-56 (S.D.N.Y. 2015) (unilateral program appropriate when it provided instruction and related services individualized to child’s needs and which resulted in progress); see also, e.g., Application of a Student with a Disability, Appeal No. 22-002 at pp. 16-19 (prong II burden met when testimony of school witness describes how school’s program addresses student’s individual needs); Application of a Student with a Disability, Appeal No. 21-063 at pp. 14-16 (same); Application of a Student with a Disability, Appeal No. 21-056 at pp. 18-22 (same).

Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that the program at [REDACTED] with after school services is appropriate for [REDACTED] for the 2022-2023 school year. As a result, [REDACTED]’s parent prevails with respect to the second Burlington/Carter criterion. Does the balance of the equities favor [REDACTED]’ parents?

With respect to the third Burlington criterion, whether equitable considerations support [REDACTED]’s parent’s claims, the evidence establishes that [REDACTED]’ parents cooperated with the CSE by attending CSE meetings, communicating with Department personnel about their concerns, and providing the requisite statutory notice. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district). “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.” C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014). There is no indication in the record that [REDACTED]’s parents impeded the Department’s efforts to offer [REDACTED] a FAPE.

Furthermore, [REDACTED]’s parents have an obligation under the contract to pay [REDACTED]’s tuition at [REDACTED] for the 12-month 2022-2023 school year. A hearing officer may, where the other requirements of Burlington and Carter permit, order prospective payment to a school or provider (rather than reimbursement to a parent) because: (1) such payment is permitted by Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998); and (2) it would be patently unfair to extend the protections granted by the United States Supreme Court in Burlington and Carter only to those disabled children whose parents happen to have the financial wherewithal to “front” the entire amount of the private school tuition, as in the instant case, and subsequently seek repayment from the school district. See also Ferreira v. New York City Dep’t of Educ., 22 Civ. 4993 (S.D.N.Y. March 14, 2023).

Equitable considerations thus favor the award of relief to [REDACTED]’s parents. As a result, [REDACTED]’s parents prevail with respect to the third Burlington/Carter criterion.

The claim for meal costs was not pursued at hearing and is deemed abandoned and dismissed.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED:

1. The Department of Education shall fund [REDACTED]’s placement at [REDACTED] [REDACTED] for the 2022-2023 12-month school year; payment shall be direct payment to the School.

2. The Department of Education shall fund up to ten hours per week of home-based ABA therapy provided to [REDACTED] by [REDACTED] [REDACTED] [REDACTED], or a comparable provider, for the 2022-2023 12-month school year.

3. The Department of Education shall fund up to two hours per week of physical therapy provided by [REDACTED] [REDACTED], or a comparable provider, for the 2022-2023 12-month school year.

SO ORDERED.

DATED: June 14, 2023

Jean Marie Brescia, Esq.

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.

DOCUMENTATION ENTERED INTO THE RECORD

PARENTS’ EXHIBITS

No.

LETTER DATE DOCUMENT Of

A. Hearing Request 7/11/22 8 pages

B. [REDACTED] Progress Report 10/29/21 31 pages

C. Ten Day Notice 6/23/22 2 pages

D. Ten Day Notice 6/23/22 1 page

E. Provider Affidavit 6/25/22 1 page

F. [REDACTED] Tuition Affidavit 7/20/22 1 page

G. [REDACTED] ABA Affidavit 8/3/22 1 page

H. Pendency Agreement 9/9/22 2 pages

I. [REDACTED] Class Schedule 2022-2023 1 page

J. [REDACTED] Program Description Undated 1 page

K. Neuropsychological Evaluation 6/28/19 8 pages

L. 1040- [REDACTED] [REDACTED] 2020 2 pages

M. 1040- [REDACTED] [REDACTED] 2020 2 pages

N. [REDACTED] Progress Report 7/29/22 56 pages

O. [REDACTED] Progress Report 10/31/22 30 pages

Q. [REDACTED] Enrollment Contract 7/21/22 4 pages

R. [REDACTED] Progress Report 2/28/23 40 pages

Footnotes

[1] Exhibits shall be referred to as follows: Parent’s exhibits are identified with letters; Department exhibits are identified with numbers; and Impartial Hearing Officer’s Exhibits are labelled as “IHO.”