NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CASE NUMBER: 576730 - NYC: 229372
FINDINGS OF FACT AND DECISION
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 10, 2023
For the Student:
[REDACTED], Attorney
[REDACTED], Parent Student
[REDACTED], Director of Education, [REDACTED]
For the Department of Education:
[REDACTED], Attorney
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parents’ Due Process Complaint (“DPC") originally filed against the New York City Department of Education (hereinafter referred to as “the District”) on or about July 11, 2022. This IHO was appointed on July 27, 2022. A prehearing conference was held on August 11, 2022, and a status conference was held on September 13, 2022.
An amended DPC was filed on October 5, 2022(Ex. P-A)2. There is no record of a response to the DPC from the District. A prehearing conference regarding the amended DPC was held on November 7, 2022. A status conference was held on December 8, 2022. The hearing was held on January 10, 2023. The Parents were represented by [REDACTED]. The District was represented by [REDACTED].
At the hearing the Parents entered into evidence exhibits A-Q and presented two witnesses, including the Parent. The District entered into evidence exhibits 1-4 3 and did not present any witnesses. The record contains a Pendency Implementation Form, dated September 19, 2022 stating the Student’s pendency program arises from a prior findings of fact and decision, dated December 30, 2019. The program includes tuition to be paid to the [REDACTED] and 1:1 ABA for 2 hours per day on weekends and when the school is not in session to be provided by [REDACTED] (Ex. P-H-1).[4] The parties submitted written closing statements on February 3, 2023.
The record was closed on February [3], 2023.
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.
2 Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.
BACKGROUND
At the time of the filing of the amended DPC, the Student was a [REDACTED] girl classified by the District’s Committee on Special Education as a student with Autism. The District’s CSE met on March 9, 2022 to develop an Individualized Education Plan (“IEP”) for the 2022-23 school year (Ex. D-2). The Parents obtained a neuropsychological evaluation in May of 2022 (Ex. P-C). The CSE reconvened in August of 2022 to review the updated neuropsychological evaluation and issued an updated IEP recommending placement in a District 75 6:1:1 special class (Ex. P-D). The Parents rejected both IEPs, but did not receive a substantive response to their concerns from the District (Exs. P-B and P-F, T:77).
The Parents unilaterally enrolled the Student in [REDACTED] (hereinafter referred to as “the private school”) for the 2022-23 school year.
ISSUES
The District has conceded that it did not offer the Student a free appropriate public education (“FAPE”) for the 2022-23 school year (T:40). The Parents assert that the private school is meeting the Student’s special education needs. The Parents seek direct funding of the tuition at the private school for the 2022-23 school year. The Parents argue that the Student also requires a home-based program due to her significant needs. The Parents seek home-based services as follows: Applied Behavior Analysis (“ABA”) 20 hours per week, supervision by a Board Certified Behavior Analyst (“BCBA”), speech language therapy 2 times 45 minutes per week, and occupational therapy 2 times 45 minutes per week over a 52 week year5. The Parents seek further compensatory services for ABA, speech language therapy and occupational therapy for those home-based services not received since August 12, 2022. [6]
The District argues that the private school is not an appropriate placement, home-based services are not required for the Student to make educational progress and the Student is not entitled to compensatory education because the Parents placed the Student unilaterally in the private placement (District Closing MOL at pg. 2).
FINDINGS OF FACT
The Parent testified that the Student has been diagnosed with autism since the age of 2 (T:65). In September of 2020, the Parents noticed a big change in the Student overnight (T:69). Her behavior became very unpredictable. For example, she may while sitting at her desk start hitting her head with whatever is near her, so the Parents must keep nothing near her. She may 5 Although mentioning it in opening remarks, the Parents did not seek physical therapy in their closing argument or present testimony regarding a need for it (T:45). try to quickly grab her iPad during remote sessions and start hitting herself (T:67). The Parent testified that the Student was diagnosed with [REDACTED (REDACTED)[7] in June of 2022 (T:65). She testified that she has regressed over the last few years (T:82).
The 2022-23 school year is the Student’s eighth year at the private school (Ex. P-P-3). The Student underwent an evaluation at [REDACTED] in May of 2022 (Ex. P-C). At the time of the evaluation, she was attending the private school remotely 2 to 3 days per week due to issues with transportation. The evaluator reported that it is not safe for the Student to drive in a car without 1:1 supervision so she could only attend school when both her mother and father were able to be in the car. She was not receiving any home services at the time, except for some remote 1:1 instruction from the private school (Ex. P-C-1-2).
Following her autism diagnosis at age 2, the Student received early intervention services from ages 2 – 6 consisting of ABA, speech language therapy and occupational therapy. According to the neuropsychological report, the Student at age 5 received District funding for placement at the private school and afterschool ABA, speech language therapy and occupational therapy, center based ABA, speech language therapy and occupational therapy and 4 hours of home based ABA on the weekends. All of these services have since been removed from her IEP (Ex. P-C-2).
The Parents reported to the evaluator in May of 2022 their concerns with the Student’s episodes of dangerous and self-injurious behaviors which occurred multiple times per day and could last for up to 2-3 hours. The walls in her home are padded, and she regularly wakes up between 2 and 3 am with episodes of screaming and dangerous behavior. This behavior has increased in intensity since its onset in September of 2020. Simultaneously, the Parent noted significant regression in the Student’s language and developmental skills. She was no longer engaging in any functional play and her attention for books and television had decreased drastically (Ex. P-C-2).
The Student transitioned well into the test setting and spoke in phrases and short sentences. She showed periods of agitation and heightened sensitivity when tasks became more difficult, but the evaluator was able to calm and refocus her. The assessment results are a valid reflection of her skills and functioning (Ex. P-C-3).
On the Stanford Binet her abbreviated IQ score was 63. The Student performed on the 6-year, 10-month level on tests of nonverbal reasoning and 4-year, 0-month level on tests of verbal reasoning. On a separate test of developmental skills, the Differential Ability Scales, Second Edition, the Student’s verbal reasoning skills fell in the 3 to 5 year range and her nonverbal reasoning skills fell in the 4 to 5 year range. Her spatial processing skills were a relative area of strength in the 6–7 year level (Ex. P-C-4). On the Childhood Autism Rating Scales, 3nd Edition, her scores placed her in the Severe Symptoms range (Ex. P-C-5). On the Vineland Adaptive Behavior Scales, 3rd Edition, based upon parent report, the Student’s adaptive composite score fell below the 1st percentile. In the area of communication, she scored at the 1 year level for receptive language, 2 year level for expressive language and 6 year level for written language. Her daily living skills fell below the 3 year level. Her social skills fell below the 2 year level. (Ex. P-C-5).
On the Child Behavior Checklist, according to parent report, the Student was reported to have clinically significant symptoms of anxiety and depression, somatic complaints, thought problems and attention problems. She was reported to have borderline clinical elevations with aggressive behavior (Ex. P-C-6).
The evaluator diagnosed her with Autism Spectrum Disorder with language and cognitive impairments, social communication impairments – level 3 and restricted repetitive patterns of behavior-level 3. She also diagnosed her with Intellectual Disability-unspecified, unspecified anxiety and unspecified depressive disorder (Ex. P-C-6).
The evaluator listed more than four pages of recommendations including full year, full day (8-10 hours) programming in an autism specific classroom with small student to teacher ratio and mostly 1:1 instruction by teachers trained in ABA. She requires a program with no more than 2 to 3 days off of school at a time. She requires the related services of speech and language therapy at least 5x per week, occupational therapy at least 4x per week and physical therapy at least 4x per week (Ex. P-C-7-8).
The evaluator stated that in the event that a full day (8-10 hours), full week (5 days), full year (12 month) ABA educational program is not available in her local school district, the family may need to work with the District to explore residential schools that provide intensive programming for children with autism and comorbid intellectual disability (Ex. P- C-9).
The evaluator opined that the Student required intensive outpatient treatment to address core deficits and build functional capacity provided on a weekly basis over a 12 month period with no more than 1 to 2 days of gaps in service. These services include 15 hours per week of ABA, speech and language therapy 2 sessions per week, occupational therapy 2 sessions per week and physical therapy 2 sessions per week (Ex. P-C-9).
The Parents presented the testimony of [REDACTED], the Director of Education at the private school since August 2009 (hereinafter referred to as “the Director”). The Director holds a doctorate degree in Special Education and Behavior Disorders and ABA from [REDACTED] University. She is certified by New York State in special education and as a school district administrator and school administrator supervisor. She is a Board Certified Behavior Analyst, BCBA-D(doctoral notation) and a licensed behavioral analyst (LBA) in New York State (Ex. PP-1).
The Director described the private school as an independent special education school focused on the needs of students with autism and related disabilities in need of highly individualized ABA programs (Ex. P-P-2). The Director is familiar with the Student and has taken part in developing her program over the years, supervising her classroom and teachers and observing her during instruction. She also spoke with her teacher and related service providers in preparation for her testimony (Ex. P-P-3). For the 2022-23 school year, the Student was placed in a class with 7 students, 1 lead teacher and 4 ABA instructors. She receives 5 hours per day of 1:1 instruction and 1 hour per day of instruction for lunch and leisure skills in a 2:1 setting.[8] Her lead teacher holds a master’s degree in special education and ABA, is BCBA certified, and New York State certified in special and general education. All of the classroom ABA instructors have bachelor’s degrees and have received training from the private school (Ex. P-P-3).
The Director testified that the Student receives instruction both in person and through synchronous remote instruction due to her [REDACTED] diagnosis.[9] When her [REDACTED] symptoms present in high frequency, the Student becomes aggressive and self-injurious and cannot be safely transported to school. Her synchronous sessions are provided through live video sessions with her classroom instructor and speech and occupational therapists, with her caregivers acting as a proxy during the session where needed (Ex. P-P-4). The Director admitted when questioned during the hearing that the bulk of her instruction is currently remote with her Parent providing the necessary prompting as instructed by the school (T:53-54). She further clarified that the Student has only been present in the private school a “handful of times” this school year (T:55,61-62).
She starts her remote day at 9:15 am and is in back-to-back sessions until lunch. She is not part of the classroom for lunch or leisure activities (T:56). She receives her related therapies live remotely (T:56). On Tuesdays and Thursdays her instruction begins at 10:00 am (T:58). She attempts to persevere through the 45 minutes sessions, and makes it through a lot of the sessions, but sometimes she is not feeling well and signs off early (T:58-59). She does her adaptive physical education (“APE”) activities asynchronously or on her own (T:59-60). [10]
The Director testified that her program has been individualized to meet the Student’s needs as determined from prior reports, criterion-based assessment, the Assessment of Functional Living Skills (“AFLS”), the wishes of her parents and her future educational needs. The curriculum contains measurable outcomes in the areas of functional academics, pre/vocational skills, household skills, self-management, self-care and community participation and is continuously measured throughout the school day (Ex. P-P-4-6). She also receives speech language therapy 1:1 for 2 times per week for 45 minutes and occupational therapy 1:1 for 2 times per week for 45 minutes. She receives 1 transdisciplinary group 2:1 for 60 minutes per week with the related service providers and an ABA instructor. Parent counseling and training is also provided to the Student’s mother (Ex. P-P-6).
The private school conducted a functional behavior assessment (“FBA”) to assess the Student’s inappropriate classroom behaviors, tantrums and self-injury and aggression. The Director testified that since implementing strategies three of her four targeted behaviors have remained low at school and within remote sessions (Ex. P-P-8-9). The Parent testified that the private school was able to reduce or eliminate some behaviors such as jumping, touching her eyeball and gagging herself (T:90). However, the Parent testified that the Students behaviors such as hitting herself, banging her head on things, taking objects and hitting her head with it, biting herself and biting or headbutting her Parent are still present and “they’re much more intense now.”(T:90-91, 94-95).
The Director testified that the Student has made progress academically in reading, writing and math. She testified to areas of deficits in communication and social skills. She has made steady progress with self-management skills (Ex. P-P-9-11). The Director testified to her participation in group activities within the classroom (Ex. P-P-11). No progress reports were entered into the record.
The Director testified that the Student made progress on her speech and language goals, which include expressive, receptive and pragmatic skills. Occupational therapy goals focus on increasing sensory processing, self-care skills, gross motor coordination and self-management skills. Her poor frustration tolerance and sensory dysregulation have presented challenges to her ability to complete routines around her home. Her hygiene goals include flossing her teeth and putting her hair in a ponytail. She has goals for computer skills including typing and simple coding (Ex. P-P-13).
She works on her core strength and endurance by following yoga and stretching videos, but has difficulty with cardio and other standing exercises. She has learned how to identify strategies for familiar problems while working on her self-regulation, but requires prompting and corrections for new and unfamiliar problems/situations (Ex. P-P-14).
The Director opined that the Student continues to need individual support and ABA. She continues to struggle in all areas and requires prompting and systematic fading of prompts. She needs support and reinforcement when working in a group to remain on task. She requires 1:1 instruction to learn how to interact with peers. Her behaviors require an FBA and behavior intervention plan with daily analysis of her behaviors (Ex. P-P-15). The Director stated that she agrees with the recommendations in the May 2022 evaluation for outpatient ABA, speech and occupational therapy in addition to her schooling (Ex. P-P-15-16).
The Student’s attendance record was introduced. The Student has been absent 31 days and present 62 days. Twenty of her absences have been excused and eleven were unexcused (Ex. P-M). The Director testified that if a student is absent from school, they do not receive education remotely (T:51). The School is closed for 2 weeks in the summer, federal holidays, a break around Christmas, a weeklong February break and a weeklong spring break (T:52).
The Parent testified that in the beginning of July 2022, the Student’s academic skills were at a 1st to 2nd grade level.
However, currently her behaviors are so intense that the focus of her sessions is managing her behaviors so that she can do academic work. She testified that:
“she’ll sit down and there will be moments where she’s able to do her work and then suddenly she starts screaming, crying, hitting herself, trying to bang her head on the table or walls. And so a lot of the time, that’s what the focus is during the sessions.” (T:68).
If she cannot find something to hit herself with, she will use her arm. She was jumping so hard on the ground she gave herself a stress fracture. That particular behavior has decreased but she will still do it from time to time (T:69). The family does not have a television because she would break it. She cries and screams a lot. She’s very anxious. She wakes up throughout the night with the same behaviors that she presents with during the day. She testified that the behaviors she was describing started in September of 2020 almost overnight (T:69). She reiterated in response to this IHO’s questions that the majority of her sessions are trying to keep her calm and keep her from hurting herself (T:86). During two hours of instruction, about half of that time is spent trying to calm her down (T:88-89).
“A lot of times that she gets up throughout the session and is jumping or hitting herself or trying to hit her head on the wall. It really depends on how she – how she is that day.” (T:86-87).
The Parent testified that she advised the CSE in 2022 of the changes in the Student’s behaviors and that their intensity and frequency had increased (T:70-71). She told the CSE the Student required ABA in a small ratio because of her safety issues and distractibility. She needs to be redirected very quickly before her behavior escalates. Her scripting is also very distracting (T:71). She sent the CSE the May 2022 evaluation, and the CSE reconvened in August of 2022. At that time she advised the CSE of the recent [REDACTED] diagnosis. She testified that she explained to the CSE that with the increased intensity of the behaviors seen over the last few years, the Student was in need of services outside of the school day as well as received in the past. [11]
Despite the enormous challenges faced by the Parents with the remote instruction currently being delivered, the Parent testified that she is satisfied with the program being provided this year. She stated that the private school adapts programs based on her feedback, tailors sessions around her needs and works around her difficulties (T:79). She feels the Student has made a lot of progress despite her interfering behaviors (T:79). The Parent also requests at home 20 hours a week of ABA, 2 hours per week of ABA supervision and 2 additional sessions of speech, OT and PT per week to help her recoup skills that have regressed and address her dangerous behaviors (T:81-82). She also requested compensatory services to help during holidays and school breaks (T:83).
CONCLUSIONS OF LAW
The Individuals with Disabilities Education Act (IDEA) provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).
The IDEA requires that a student's recommended program must be provided in the least restrictive environment (“LRE”) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.107, 300.114[a][2][i], 300.116[a][2], 300.117; 8 NYCRR 200.1[cc], 200.6[a][1]; see T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145,161-67 [2d Cir. 2014]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d. Cir. 2007]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 132 [2d Cir. 1998]; Patskin v. Bd. of Educ. of Webster Cent. Sch. Dist., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
In New York State, 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 or payment for services for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)). (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]).
In order to meet their burden, the Parent must establish, by a preponderance of the evidence, that the unilateral placement provided “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. 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 district 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" Gagliardo, 489 F.3d at 115):
“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. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo,489 F.3d at 112 (quoting Frank G , 459 F.3d at 364-65).
Finally, equitable factors must weigh in the favor of the parent in order to qualify for an award of tuition reimbursement.
Where parents “lack the financial resources to ‘front’ the costs of private school tuition, and in the rare instances where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so- parents who satisfy Burlington factors have a right to retroactive direct tuition payment relief” (Mr. and Mrs.
A. v. New York City Dept. of Educ., 769 F.Supp. 2d 403,428 [SDNY 2011].
The Parents also seek compensatory services. Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]; (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). The purpose of an award of compensatory education is to “make up for” a denial of a FAPE and place the student in the position he or she would have been had the IDEA not been violated (see E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 & n.12 [2d Cir. 2014]; P. v. Newington Board of Educ., 546 F.3d 111,123 [2nd Cir. 2008] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]). Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123).
The Second Circuit has held that where a district fails to implement a student’s pendency placement, a student should receive the pendency services to which they were entitled as a compensatory remedy (Doe v. E. Lyme Bd. Of Educ., 790 F.3d 440, 456 [2nd Cir. 2015]).
ANALYSIS
As the District did not present any testimony and conceded its burden under the First Prong of the Burlington/Carter test, I find that the District has failed to provide the Student with a FAPE for the 2022-23 school year. The burden shifts to the Parents to prove that the unilateral placement met the Student’s special education needs.
The facts and evidence in this case are troubling. It is clear that this Student has significant academic, behavioral, communication, sensory/motor and social skills needs. As stated above, the District has not even attempted to defend its District [REDACTED] special class 6:1:1 placement as appropriate for this student (Ex. P-D-46). Unfortunately, the record does not support a finding that the Student’s needs are being met at the private school either. The testimony of the Director of the private school is at best inconsistent with the Parent’s testimony regarding what is actually happening during the school day.
First, the Director testified that the Student “attends school both in person and through synchronous remote instruction.” (Ex. P-P-4). In reality, she has only attended school this year a handful of times, and not since September. In addition, she has been absent receiving no instruction 31 of 93 school days this year or one-third of the school year (Ex. P-M). The Parent testified that the Student cannot be safely transported to school despite attempts made with both parents. As a result, the Parent has been left with the responsibility of acting as the Student’s full-time 1:1 paraprofessional. The Director testified that the Parent acts as a proxy “where needed”, but it is clear that the Parent’s full attention is required one hundred percent of the time (Ex. P-P-4). Glaringly absent from the Director’s testimony are any efforts on the part of the private school to actually get her to school. Instead, the private school created a remote schedule for which she starts school late 2 days per week and is on her own for one hour and fifteen minutes during the school day every day (Ex. P-L-1). [12]
Second, the Director’s description of the Student’s behaviors and how they are affecting her learning are very different from the candid testimony of the Parent. The Director testified that inappropriate classroom behaviors occur at a mean of 20% of the intervals across the time samples, self-injury remains low with a daily mean of 1.3 occurrences and tantrums paired with 2 inappropriate classroom behaviors are recorded with a mean of less than one minute per day. Aggression such as hitting, kicking, punching and biting range from 0 to 2 occurrences per day. This is in stark contrast to the Parent’s testimony that “a lot of times she gets up throughout the session and is jumping or hitting herself or trying to hit her head on the wall.” (T:86-87). She described the hitting, banging her head, hitting her head with things and head butting as “much more intense now.” (T:91). Approximately half of the instructional time is spent trying to calm her down (T:88-89). The inconsistencies between the testimony of the Director and the Parent who is on the front line daily regarding the Student’s behavior calls into question the Director’s testimony regarding the Student’s actual progress.
Clearly what is being provided to this Student by the private school is not addressing her specific special education needs, as her behavior is interfering with her access to instruction. The Student’s disability prevents her from independently accessing any instruction without continuous in-person adult support. The private school consequently has maintained a misplaced reliance on the Parent to support its program. Her behavioral needs are not being adequately addressed in the home setting without the presence of trained school personnel physically present. The Student requires in-person special education and related services. These behaviors are not new and were known to the school at the start of the school year.
The evaluator opined that in the event a full day (8-10) hour twelve-month ABA program is not available in the local school district, the parties may need to explore residential schools that provide intensive programming for children with autism and comorbid intellectual disability (Ex. P-C-9). The State Review Officer has held that:
“[w]ith respect to residential placements, the Second Circuit has stated that "[w]hile some children's disabilities may indeed be so acute as to require that they be educated in residential facilities, it is appropriate to proceed cautiously whenever considering such highly restrictive placements. . . . The norm in American public education is for children to be educated in day programs while they reside at home and receive the support of their families" (Walczak, 142 F.3d at 132). A residential placement is not appropriate unless it is required for a student to benefit from his or her educational program (M.H. v. MonroeWoodbury Cent. Sch. Dist., 296 Fed App'x 126, 128 [2d Cir. Oct. 7, 2008]; Walczak, 142 F.3d at 122; Mrs. B., 103 F.3d at 1121-22; see Educ. Law § 4402[2][b][2]; 34 CFR 300.104; 8 NYCRR 200.6[j][1][iii][d]). In general, the Second Circuit has required objective evidence that a student cannot obtain an educational benefit in a less restrictive setting before finding that a residential placement is required by the IDEA (see M.H., 296 Fed. App'x at 128; Walczak, 142 F.3d at pp. 131-32). Application of the Board of Education of the Katonah-Lewisboro Union Free Sch. Dist., Appeal No. 19-012.
This Student’s needs are acute. It is obvious that the Parents are making Herculean efforts to maintain the Student in some type of day program, and I am very sympathetic to their current situation and the failure of the District to provide for the Student’s needs. However, at the present time she is physically isolated from her teachers, related service providers and peers. Adding additional hours to an insufficient program is not going to make the current private school program appropriate. Whether the cause be [REDACTED] or not, the fact of the matter is that the Student has regressed over the last few years in a day program (T:82). Given the severity of the Student’s current behaviors, her significant deficits in functional academics, communication, social skills and motor issues, her inability to be transported safely to a day placement and her need for seven day a week round the clock support, a residential placement is required to enable the Student to receive meaningful education.
The Parents have not met their burden of proof that the private school program is appropriate or that adding an additional home component or bank of compensatory services would make it appropriate to meet her intensive needs. Given my findings, there is no reason to consider the equities in this case. The CSE should reconvene within 15 school days and recommend a search for an appropriate residential placement for the remainder of the 2022-23 school year. In order to address the Student’s immediate needs, the District is directed to fund until such time as the District recommends a residential placement for students with autism and comorbid intellectual disability : 15 hours per week of ABA, speech and language therapy 2 sessions per week for 30 minutes and occupational therapy 2 sessions per week for 30 minutes. To the extent that the District has not provided the 1:1 ABA services agreed to in the pendency document while this hearing has been pending, the Student is entitled to a bank of compensatory services for those services not provided (see Ex. P-H-1).
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:
1. That the CSE reconvene within 15 school days and recommend a search for a residential placement;
2. It is further ordered that the District is directed to fund a home-based program of 15 hours per week of ABA, 2 sessions per week for 30 minutes of speech language therapy and 2 sessions per week for 30 minutes of occupational therapy until such time as the District locates and recommends a residential placement for the Student.
3. To the extent that the District was required to provide services during the pendency of this hearing in accordance with the pendency agreement and has failed to do so, the Student is entitled to a bank of those 1:1 ABA services not provided.
4. The Parents’ request for direct funding at the private school is denied.
SO ORDERED.
DATED: February 17, 2023
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.
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Confirmation Ten Day Notice with outgoing email and Email 10/05/22 10 pages
B. Confirmation 06/24/22 5 pages
C. Neuropsychological Evaluation May 2022 12 pages
D. Individualized Education Plan (IEP) 08/12/22 54 pages
E. Prior Written Notice and School Location Letter Parent’s School and IEP Rejection letter with outgoing 08/26/22 6 pages
F. email 2019-2020 FOFD. Case No. 184906 10/03/22 3 pages
G. IHO Daniel Ajello, Esq. 12/30/19 26 pages
H. Pendency Agreement 2022-2023 09/19/22 2 pages
I. [REDACTED] Enrollment Contract 2022-2023 5 pages
J. Tuition Affidavit 08/09/22 1 page
K. Student Schedule 2022-2023 1 page
L. Nov. 2022 Revised Remote Schedule 2 pages
M. Attendance Record 2022-2023 1 page
N. Program Description 2022-2023 12 pages
O. [REDACTED] Availability Letter 08/09/22 1 page
P. Affidavit of [REDACTED] 1/03/23 16 pages
Q. Parent’s 2021 Tax Return 2021 10 pages
DOE’S EXHIBITS
1. Notice of IEP Meeting 1/28/22 4 pages DOE
2. IEP 3/9/22 56 pages DOE
3. IEP Attendance Page 3/9/22 1 page DOE
4. PWN of Recommendation 3/21/22 4 pages DOE
Footnotes
[3] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.
[4] At the first day of hearing, Parents’ counsel stated that the Student was not currently receiving any outside services (T:44).
[6] The Parents withdrew their request for transportation (T:43-44).
[7] [REDACTED] (Ex. P-P-4).
[8] Compare with the Student’s remote schedule (Ex. P-L).
[9] The Parent, however, testified to only trying unsuccessfully during the first few weeks of September to transport her to school but her behavior was too dangerous (T:89-90).
[10] According to her original schedule, she was supposed to receive 1:1 instruction during APE.
[11] The Parent’s testimony was interrupted so she could assist the father in tending to the Student (T:64,75).
[12] She is not receiving the 5 hours per day 1:1 instruction and one hour per day of 2:1 instruction during lunch and leisure skills as testified to by the Director (compare Ex. P-P-3 and Ex. P-L).