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FINDINGS OF FACT & DECISION
Case Number: 229459
Student Name: [REDACTED] (hereinafter referred to as “Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested By: Parents
Dates of Hearings: May 18, 2023
May 31, 2023
Actual Record Close Date: August 25, 2023
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF THOSE WHO APPEARED ON MAY 18, 2023
For the Student:
[REDACTED], ESQ., Attorney
[REDACTED], PH.D., Psychologist
For the District:
[REDACTED], ESQ., District Representative
[REDACTED], School Psychologist
NAMES AND TITLES OF THOSE WHO APPEARED ON MAY 31, 2023
For the Student:
[REDACTED], ESQ., Attorney
[REDACTED], Parent Student
[REDACTED], PH.D., Psychologist
[REDACTED], BCBA
[REDACTED], Speech Language Pathologist
[REDACTED], ABA Provider
For the District:
[REDACTED], ESQ., District Representative
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was originally requested by the attorneys for student and the parent in a due process complaint dated July 1, 2022 (Exs. P-A).[1] The primary issue to be determined at this hearing is whether the School District offered the student a free appropriate public education (“FAPE”) for the 2022/23 school year (Exs. P-A, P-B, P-C).
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1).
An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii).
The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration of the resolution session period. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
On July 28, 2022, the School District appointed the undersigned to serve as the IHO in this matter. See 8 NYCRR § 200.5(j)(3)(i). On September 1, 2022, the parties entered into a pendency agreement whereby the School District agreed to fund private applied behavioral analysis (“ABA”) therapy and related services, effective July 1, 2022, for the duration of this proceeding (Ex. P-D). 2 See 20 U.S.C. § 1415(j); 34C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). A pre-hearing conference with the parties was held on September 13, 2022 to clarify the hearing issues and set a date for the hearing (R. 2-8). See 8 NYCRR § 200.5(j)(3)(xi). Thereafter, the parents filed amended due process complaints on September 21, 2022, and again on October 10, 2022 (Exs. P-B, P-E). See 8 NYCRR § 200.5(i)(7). Hearings on the merits of the matter were thereafter held on May 18, 2023 and May 31, 2023.[3] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the July 1, 2022 due process complaint, the student was [REDACTED] years old. The student has been diagnosed with autism, epilepsy, pica and speech apraxia, and presents with profound delays in all developmental areas (Exs. P-A at 5, P-L at 12, P-CC at ¶ 3). For the 2022/23 school year, the student participated in a home-based program through pendency (Ex. P-CC at ¶ 31).[4] The student's eligibility for special education and related services as a student with autism is not in dispute in this hearing (Exs. P-C at 6, P-L at [2], SD-1 at 1). See 8 NYCRR § 200.1(zz)(1). [5]
The student attended [REDACTED] from 17 months through age 3.5, receiving ABA (at home and center-based), speech/language therapy (5x60 at home, 3x30 center based), occupational therapy (5x30) and physical therapy (4x30). She received special education itinerant teacher (“SEIT”) services at home with a modified ABA program and related services during the 2011/12 school year (Ex. P-L at 3).
The student attended a center-based program until March of 2020 when the school locked down because of the COVID-19 pandemic. She was not doing well at that school because of maladaptive behaviors such as tantrums and aggression. Since that time, the student has participated in her home-based program (Ex. P-L at 3).
On November 4, 2021, the CSE convened to develop an IEP for the student through January 2022. The CSE recommended that the student receive the majority of her instruction in a 6:1+1 special class in a specialized school on a twelve (12) month basis with a full-time one-to-one (1:1) behavior support paraprofessional. The CSE also recommended that the student receive related services of: special transportation (door-to-door, air conditioning); individual speech/language therapy, six (6) times per week for sixty (60) minutes per session; individual occupational therapy, five (5) times per week for sixty (60) minutes per session; individual physical therapy, five (5) times per week for sixty (60) minutes per session; and parent counseling and training, four (4) times per year for sixty (60) minutes per session (Exs. SD-1 at 23-24, 28-29, SD-8).
In a letter dated November 23, 2021, the School District advised the parents that the student’s recommended program would be implemented at one of its public schools (Exs. SD-9, P-H at 5). On January 12, 2022, the parents advised the CSE that they had toured the recommended school and had concluded that it was not appropriate for the student, because it lacked “any 1:1 instruction” and it did not use ABA (Ex. P-K).
In a letter dated June 16, 2022, the parents advised the CSE that they were rejecting its recommended program for the student for the 2022/23 school year and intended to continued the student’s home-based program at public expense (Ex. P-E). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The School District
The parents’ request that the School District provide and/or fund a home-based program for the student should be denied. The parents have failed to meet their burden to show that the unilateral placement of the student at home, with an ad hoc program of instruction by individuals trained in ABA and related services, continues to be an appropriate placement for the student. Alternatively, any award of home-based services to the student should be reduced from their current levels, which are unreasonable. Lastly, the parents’ request for reimbursement of an independent neuropsychological evaluation of the student should be denied (R. 45-47).
B. The Parents
The School District denied the student a FAPE for the 2022/23 school year. The student’s home-based program is an appropriate placement and there are no equitable reasons to with withhold or reduce public funding for the home-based program. The School District should be ordered to reimburse the parents for the cost of the independent neuropsychological evaluation (R. 91-97).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (1) to ensure that students with disabilities have available to them a FAPE 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) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).[6]
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
"'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.'" Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 2017). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See Rowley, 458 U.S. at 203. The "IDEA, [however,] does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 137 S. Ct. at 1001. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379.
Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'" See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Endrew F., 137 S. Ct. at 1001 (holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”); Rowley, 458 U.S. at 192.
The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, see 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v). [7] A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her 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. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. See Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).
The burden of proof is on the school district during 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. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010). B. Recommended Public Program At the hearing, the School District conceded that it did not offer the student a FAPE for the 2022/23 school year (R. 45). Accordingly, I find that the School District denied the student a FAPE for the 2022/23 school year. C. Appropriateness of Student’s Home Program Given my finding that the DOE failed to offer the student a FAPE for the 2020/21 school year, I turn to the appropriateness of the private program and services secured by the parents for the student during that school year. With respect to the second criterion for an award of reimbursement, parents must show that the private services obtained for the student were appropriate to meet his or her special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.
In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize a student’s potential. See Frank G., 459 F.3d at 364-65. When determining whether the parent’s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV-692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
Based on the evidence entered into the hearing record, including the credible testimony of the student’s neuropsychologist, speech/language pathologist, BCBA, ABA provider, physical therapist and the parent, I find that the home program provided her with specifically designed, individualized instruction to meet her unique educational needs during the 2022/23 school year (Exs. P-L, P-T, P-U, P-V, P-W, P-X, P-Y, P-Z, P-AA, P-BB, P-CC).
The November 2021 IEP confirmed that the student has significant delays in cognition, language/communication, social functioning, physical development, and adaptive skills (Ex. SD1, P-L at 4). In her April 2022 evaluation, the student’s neuropsychologist described the student as minimally verbal, self-directed and emotionally dysregulated (P-L at 4). The student has significant sensory processing difficulties, such as sensitivity to noise and light (Ex. P-L at 6). Self-stimulatory behaviors continue to be present on a fairly consistent basis; the student engages in high-pitched screaming/shrieking, injures herself, has temper tantrums, and can become aggressive with others (Ex. P-L at 6). The student’s pica has also worsened; when left alone, the student will eat dirt, small objects and other non-foods (Ex. P-L at 3).
Given those needs, much of the student’s home program during the 2022/23 school year focused on adaptive activities of daily living (“ADL”) and self-help skills (Ex. P-L at 7). The ABA provider testified (via affidavit) that during ABA instruction, she and other providers targeted reduction of problem behaviors, important ADL skills, communication skills to allow her to participate in community settings, and pre-vocational skills to enable her to actively engage with her community (Exs. P-W, P-AA at ¶ 10).
To address the student’s speech apraxia, the student was provided with PROMPT-based speech therapy, six (6) times per week for sixty (60) minutes per session (Exs. P-U, P-Y at ¶¶ 11, 30).[8] As a result of that therapy, the student demonstrated: an improvement in her receptive language skills, an improvement in responding “yes” or “no” to simple questions pertaining to food, improved understanding of routine one-step commands, and improved understanding of simple “what” questions related to familiar objects or pictures (Ex. P-Y at ¶¶ 12-16). In the area of pragmatics, the student learned to consistently initiate verbal requests for food, began making choices by verbally responding “this one,” and was able to respond to greetings offered by both familiar and unfamiliar communicative partners (Ex. P-Y at ¶¶ 18-20).
As the student presents with multiple physical impairments, she was provided with physical therapy in her home program at a frequency of five sessions per week for forty-five minutes per session (Exs. P-V, P-BB at ¶¶ 3-4). During physical therapy, the student worked on balance and coordination, gross motor strengthening for major joints, avoiding obstacles, gait normalization, hand-eye coordination, and holding objects at a normal distance from her body (Ex. P-BB at ¶ 6). The student’s physical therapist noted moderate improvement over the course of the school year (Exs. P-V, P-BB at ¶ 9).
Alternatively, while the DOE characterized the student’s home-program as being largely non-academic, the ABA provider noted that the student “demonstrates significant deficits in the cognitive domain that significantly impact her ability to participate in academic tasks” (Ex. P-W at 2).[9] Notwithstanding those cognitive deficits, both the BCBA and the ABA provider worked with the student on academic concepts such as one-to-one correspondence, writing her name, and counting to ten (R. 139-140, 143-144; Exs. P-Z at ¶ 16, P-AA at ¶ 15).
D. Relevant Equities
The final criterion for a reimbursement/direct payment award is that a parent's claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.
The IDEA provides that reimbursement and/or direct payment 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. See 20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 300.148(d); S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 WL 344728 (S.D.N.Y. Feb. 4, 2008); M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 (N.D.N.Y. Jan. 2, 2008); Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y. Nov. 20, 2007); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-661 (S.D.N.Y. 2005).
The IDEA also provides that reimbursement and/or direct payment may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (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.” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). 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." Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004). 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. See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger, 348 F.3d at 523-24; Rafferty, 315 F.3d at 27; see also Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68.
The relevant equities support an award of reimbursement and/or direct payment for the student’s home-program during the 2022/23 school year. In a letter dated June 16, 2022, the parents provided the School District with adequate prior written notice of their intent to make a unilateral placement of the student at public expense during the disputed school year (Ex. P-E). There is also no evidence indicating that the parents were uncooperative with the CSE (Exs. SD1, SD-2, P-K, P-I, PP, P-R), see 20 U.S.C. § 1412(a)(10)(C)(iii), nor were the costs associated with the student’s home program unreasonable given the severity of the student’s educational needs (Exs. SD-1 at 1, P-L at 12, P-Y at ¶¶ 31-32, P-Z at ¶ 23, P-AA at ¶ 23, P-BB at ¶ 14), see Carter, 510 U.S. at 16.
Alternatively, while the School District asserts that the student’s service hours in her home program are excessive, the student’s neuropsychologist, ABA provider and physical therapist all credibly testified (via affidavit) that the student requires services year round without breaks to address her significant learning needs and prevent regression of acquired skills (Exs. PX at ¶ 29, P-AA at ¶ 22, P-BB at ¶ 12).
E. Independent Educational Evaluation (IEE)
The parents also seek reimbursement of costs associated with an independent neuropsychological evaluation of the student (Exs. P-C, P-L, P-N).
The IDEA and State and federal regulations guarantee parents the right to obtain an IEE, see 20 U.S.C. § 1415(b)(1); 34 C.F.R. § 300.502; 8 NYCRR § 200.5(g), which is defined by State regulation as "an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student," 8 NYCRR § 200.1(z); see 34 C.F.R. § 300.502(a)(3)(i). Parents may seek an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at public expense. See 34 C.F.R. § 300.502(b); 8 NYCRR § 200.5(g)(1); see also K.B. v Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 (S.D.N.Y. Jan. 13, 2012) (noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"); R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 (D. Conn. 2005) (finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense).[10]
If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. See 34 C.F.R. §§ 300.502(b)(2)(i)-(ii); 8 NYCRR § 200.5(g)(1)(iv). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although not at public expense. See 34 C.F.R. § 300.502(b)(3); 8 NYCRR § 200.5(g)(1)(v). Additionally, both federal and State regulations provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees." 34 C.F.R. § 300.502(b)(5); 8 NYCRR § 200.5(g)(1). The Second Circuit Court of Appeals has recently found that, if a school district and a parent agree that a student should be evaluated before the required triennial evaluation "the parent must disagree with any given evaluation before the child's next regularly scheduled evaluation occurs" or "[o]therwise, the parent's disagreement will be rendered irrelevant by the subsequent evaluation." See D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 170 (2d Cir. 2020).
At the November 4, 2021 CSE meeting, the CSE offered to conduct a psychoeducational evaluation of the student, but the parent declined, stating that she would secure a neuropsychological evaluation. The parent explained to the CSE that it would be challenging to evaluate the student given the likelihood that she would exhibit aggressive behaviors during the testing (Ex. SD-1 at 5).
On November 19, 2021, the parent emailed the school psychologist who attended the November 4, 2021 meeting to ask if the student could be “given a voucher for the type of evaluation you are requesting” (Exs. SD-2, P-I at 2). Later on November 19, 2021, the school psychologist emailed the parent back, stating that “there are not vouchers for evaluations,” but offered the parent information on where she could obtain free or low-cost evaluations of the student (Ex. P-I at 1).
On December 3, 2021, the parents emailed the School District a letter requesting an independent neuropsychological evaluation at public expense. In their letter, the parents noted that “[i]f we don’t receive any communication from you addressing these concerns, we will secure independent evaluations and expect that the School District will provide us with reimbursement for the costs thereof” (Ex. P-J).
Thereafter, the student’s neuropsychologist conducted an evaluation of the student over three days from January 2022 through March 2022. The neuropsychologist’s findings and recommendations were memorialized in an evaluation report dated April 22, 2022 (Ex. P-L). On May 27, 2022, the parents emailed the CSE a letter informing it that they had secured an independent neuropsychological evaluation of the student and requested an IEP meeting to review the neuropsychologist’s findings and recommendations (Ex. P-DD).
There is no evidence contained in the hearing record of any response by the School District to the parents’ December 3, 2021 request for an independent neuropsychological evaluation. As noted earlier, State regulation concerning IEEs provides that, if a parent requests an IEE, the school district must either ensure the IEE is provided at public expense "or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria." 8 NYCRR § 200.5(g)(1)(iv); see 34 C.F.R. § 300.502(b)(2).[11]
At the hearing, the School District asserted that the parents were not entitled to an IEE because they never disagreed with any of its evaluations; and indeed, they declined the CSE’s offer of a psychoeducational evaluation in favor of obtaining their own evaluation. While a school district "may ask for the parent's reason why he or she objects to the public evaluation," an explanation by the parent "may not be required and the school district may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint notice to request a hearing to defend the public evaluation." See 8 NYCRR § 200.5(g)(1)(iii); see also 34 C.F.R. § 300.502(b)(4). Accordingly, while the parents’ rationale for requesting an IEE at public expense would have been relevant to the School District’s defense of its evaluation(s), it does not provide a basis for the School District’s failure to either request a hearing (to show that its evaluation was appropriate) or to ensure the IEE is provided at public expense. Due to the School District’s failure, the parents are entitled to an independent neuropsychological evaluation at public expense. See Application of a Student with a Disability (Rye City Sch. Dist.), Appeal No. 20-172 at 47 (SRO Dec. 11, 2020).
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
1. The parents’ claim that the student was denied a free appropriate public education (FAPE) for the 2022/23 school year is SUSTAINED;
2. If not otherwise funded under pendency, within thirty (30) days of the date of this Order, the School District shall fund the student’s home-based program for the 2022/23 school year which included: a) forty (40) hours per week of one-to-one (1:1) ABA/SEIT services;
b) fifteen (15) hours of Board Certified Behavior Analyst (BCBA) supervision per week; c) six (6) sixty (60) minute sessions per week of one-to-one (1:1) PROMPT-based speech and language therapy; d) five (5) sixty (60) minute sessions per week of one-to-one (1:1) occupational therapy; e) five (5) forty-five (45) minute sessions per week of one-to-one (1:1) physical therapy; and f) two (2) hours per week of parent training and counseling.
3. All services listed above shall be funded at an enhanced rate, where applicable.
4. All services listed above are to be provided on a fifty-two (52) week basis; including weekends, vacations and holidays, at the parents’ discretion.
5. Within thirty (30) days of the date of this Order, the School District shall reimburse the parents for the cost of the independent neuropsychological evaluation they secured for the student ($1,200.00).
Dated: September 8, 2023
/s/
Jeffrey J. Schiro
Jeffrey J. Schiro, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
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 plan 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 HEARING RECORD
PARENTS
A. Due Process Complaint w/ receipt confirmation, 7/1/22, 15 pgs.
B. Amended Due Process Complaint w/ receipt confirmation, 9/21/22, 16 pgs.
C. Second Amended Due Process Complaint w/ receipt confirmation, 10/10/22, 14 pgs.
D. Pendency Agreement, 9/1/22, 2 pgs.
E. Ten Day Notice w/ receipt confirmation, 6/16/22, 5 pgs.
F. Progress Reports, 10/2021, 32 pgs.
G. [Withdrawn]
H. Prior Written Notice & School Location Letter, 11/23/21, 8 pgs.
I. Emails b/w parent & CSE (evaluation), 11/19/21, 2 pgs.
J. Letter to CSE from parent (evaluation), 11/22/21, 1 pg.
K. Letter to CSE from parent (school placement), 1/13/22, 2 pgs.
L. Neuropsychological Evaluation, 4/22/22, 15 pgs.
M. Curriculum Vitae, undated, 4 pgs.
N. Paid Invoice, 4/22/22, 1 pg.
O. Email to CSE from parent (parent training), 11/12/21, 1 pg.
P. Emails b/w parent & CSE (parent training), 12/2021, 2 pgs.
Q. CSE Placement Inquiry, 2/26/23, 1 pg.
R. Letter to CSE from parent (home-based services), 3/6/23, 1 pg.
S. Behavior Intervention Plan (BIP), 5/4/23, 13 pgs.
T. ABA Progress Report, 10/25/22, 4 pgs.
U. Speech & Language Progress Report, 2023, 8 pgs.
V. Physical Therapy Progress Report, 2023, 3 pgs.
W. Educational Progress Report, 5/10/23, 5 pgs.
X. Affidavit – neuropsychologist, 5/11/23, 8 pgs.
Y. Affidavit – speech/language pathologist, 5/10/23, 6 pgs.
Z. Affidavit – BCBA, 5/11/23, 6 pgs.
AA. Affidavit – ABA provider, 5/11/23, 4 pgs.
BB. Affidavit – physical therapist, 5/11/23, 4 pgs.
CC. Affidavit – parent, 5/11/23, 5 pgs.
DD. Email to CSE from parent (IEE), 5/27/22, 1 pg.
SCHOOL DISTRICT
1. Individualized Education Program (IEP), 11/4/21, 32 pgs.
2. IEP Attendance Form, 11/4/21, 1 pg.
3. Educational Report, 10/26/21, 22 pgs.
4. Appendix to Educational Report, 10/26/21, 15 pgs.
5. Occupational Therapy Progress Report, 11/1/21, 9 pgs.
6. Speech/Language Progress Report, 10/26/21, 6 pgs.
7. Transitional/Vocational Information, 11/4/21, 2 pgs.
8. Prior Written Notice, 11/23/21, 4 pgs.
9. School Location Letter, 11/23/21, 3 pgs.
IMPARTIAL HEARING OFFICER
I. Extension Order, 1/15/23, 1 pg.
II. Extension Order, 2/14/23, 1 pg.
III. Extension Order, 3/16/23, 1 pg.
IV. Extension Order, 4/15/23, 1 pg.
V. Extension Order, 5/15/23, 1 pg.
VI. Extension Order, 6/14/23, 1 pg.
VII. Extension Order, 7/14/23, 1 pg.
VIII. Extension Order, 8/13/23, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] There is evidence contained in the hearing record, however, that the parties’ pendency agreement has not been fully funded by the School District (Ex. P-AA at ¶ 24).
[3] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 15-16, 72-73; Exs. IHO-I – IHO-VIII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[4] The student’s home-based program consisted of: (i) forty (40) hours per week of one-to-one (1:1) ABA services; (ii) fifteen (15) hours of supervision by a Board Certified Behavior Analyst (“BCBA”); (iii) six (6) hours per week of one-to-one (1:1) speech and language therapy provided by a PROMPT-certified provider; (iv) five (5) hours per week of one-to-one (1:1) occupational therapy; (v) five (5) forty-five (45) minute sessions of one-to-one (1:1) physical therapy; and (vi) two (2) hours per week of parent training and counseling (Ex. P-CC at ¶ 31).
[5] Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student's educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student's educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied. 8 NYCRR § 200.1(zz)(1).
[6] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[7] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives." See Endrew F., 137 S. Ct. at 1000.
[8] Prompts for Restructuring Oral Muscular Phonetic Targets (PROMPT) is a technique based on neuromotor principles that uses kinesthetic, proprioceptive, auditory and visual information to provide feedback to the speech system. PROMPT technique provides input via touch and pressure to specific areas of the oral mechanism to support developing or disordered speech mechanism and structures, and help develop control and refined movements of the speech sub-structures (phonation, mandible, labial-facial, tongue) (Ex. P-U at 8 n. 1).
[9] Federal regulation provides that a unilateral placement does not need to meet state standards for public education program to be appropriate for reimbursement purposes. See 34 C.F.R. § 300.148(c); see also Carter, 510 U.S. at 14 (“Nor do we believe that reimbursement is necessarily barred by a private school’s failure to meet state education standards”). The School District’s argument here is also undercut by the fact that the November 2021 CSE exempted the student from participation in state and district-wide assessments “due to her severe delays in cognition, language and behavior” (Ex. SD-1 at 27).
[10] Guidance from OSEP indicates that if a parent disagrees with an evaluation because a child was not assessed in a particular area, "the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs." Letter to Baus, 65 IDELR 81 (OSEP 2015); see Letter to Carroll, 68 IDELR 279 (OSEP 2016).
[11] Had the School District been inclined to grant the parents’ IEE request, then it should have provided the parents with a list of independent evaluators, as well as the DOE’s criteria applicable to IEEs should the parents wish to obtain evaluations from individuals who are not on the list. See N.Y. Educ. Law § 4402(3); 34 C.F.R. §§ 300.502(a)(2), (e); 8 NYCRR §§ 200.5(g)(1)(i)-(ii); see also Letter to Parker, 41 IDELR 155 (OSEP 2004).