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FINDINGS OF FACT AND DECISION
Case Number: 229975
Students Name: REDACTED
Date of Birth: REDACTED
Service District: REDACTED
Home District: REDACTED
Region: REDACTED
Hearing Requested by: Parent
Dates of Hearing: October 3, 2022
November 2, 2022
December 1, 2022
December 12, 2022
January 6, 2023
February 2, 2023
March 7, 2023
April 4, 2023
May 2, 2023
June 5, 3023
July 6, 2023
August 3, 2023
September 18, 2023
Actual Record Close Date: November 1, 2023
Hearing Officer: Maria R. Dispenza, Esq./IHO
NAMES AND TITLES OF PERSONS WHO APPEARED
October 3, 2022
For the Student:
REDACTED, Parent Attorney/Sr. Advocate
For the Department of Education:
REDACTED, Esq. DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
November 2, 2022
For the Student:
REDACTED, Parent Attorney/Sr. Advocate
For the Department of Education:
REDACTED, Esq. DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
December 1, 2022
For the Student:
REDACTED, Parent Attorney
For the Department of Education:
REDACTED, Esq. DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
December 12, 2022
For the Student:
REDACTED, Parent Attorney
For the Department of Education:
REDACTED, Esq. DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
January 6, 2023
For the Student:
REDACTED, Parent Attorney/Sr. Advocate
For the Department of Education:
REDACTED, Esq. DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
February 12, 2023
For the Student:
REDACTED, Parent Attorney/Sr. Advocate
For the Department of Education:
REDACTED, Esq. DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
March 7, 2023
For the Student:
REDACTED, Parent Attorney/Sr. Advocate
For the Department of Education:
REDACTED, Esq. DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
April 4, 2023
For the Student:
REDACTED, Parent Attorney/Sr. Advocate
For the Department of Education:
REDACTED, Esq. DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
May 2, 2023
For the Student:
REDACTED, Parent Attorney/Sr. Advocate
For the Department of Education:
REDACTED, Esq. DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
June 5, 2023
For the Student:
REDACTED, Esq.
For the Department of Education:
REDACTED, Esq. DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
July 6, 2023
For the Student:
REDACTED, Esq.
For the Department of Education:
REDACTED, Esq. DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
August 3, 2023
For the Student:
REDACTED, Esq.
For the Department of Education:
REDACTED, Esq. DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
September 18, 2023
For the Student:
REDACTED, Esq.
REDACTED, Classroom Teacher
REDACTED, BCBA Supervisor
For the Department of Education:
REDACTED, Esq. DOE Attorney
INTRODUCTION
On August 22, 2022, I was appointed by the New York City Department of Education (DOE) to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] (“IDEA”) by the parents (Parents) of REDACTED (REDACTED) for the school year 2022/23. The Parents requested the hearing by initially filing an impartial hearing request with the DOE on or about August 22, 2022. The impartial hearing was held over a series of dates, concluding on September 18, 2023 to complete the record. The timelines have also been extended to allow the parties opportunity to fully prepare. The record officially closed on November 1, 2023. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.
BACKGROUND AND POSITION OF THE PARTIES
The student, (REDACTED) has been classified by the DOE as “Multiple Disabilities” (Exhibit 1). He has been diagnosed with a rare genetic disorder called REDACTED; Autism; Epilepsy and REDACTED (Exhibits A and 1). He has a longstanding history of associated severe disability, is nonverbal, non-ambulatory, presents with global developmental delays and suffers extreme allergic reaction to items placed in his mouth and all his nutritional needs are met by formula (Exhibit A). For part of the 2022/23 school year the DOE developed an IEP on November 15, 2021 (Exhibit 1) offering a 6:1:1 special class in a District 75 school (D75) along with related services of speech language therapy (4x45, 1:1); occupational therapy (4x45, 1:1); physical therapy ( 3x45, 1:1); parent counseling and training (1x60, monthly); adapted physical education (3 times per week); and a full time health paraprofessional, along with a dynamic display speech generating device. Parent disagreed with the recommended program, gave notice to the DOE of their intent to unilaterally re-enroll REDACTED at REDACTED
(REDACTED)
(Exhibit B) and subsequently filed a DPC alleging numerous violations that resulted in a FAPE denial to REDACTED by the DOE for the 2022/23 school year, seeking: (a). direct funding for any outstanding payments for the 2022/23 school year &/or reimbursement for the unilateral placement of the student at REDACTED; (b). funding for afterschool ABA services as necessary to address the student’s educational needs; and (c). appropriate transportation to and from the unilateral placement.
In an effort to support their position, the parents presented nineteen (19) pieces of documentary evidence (Exhibits A–T (Exhibit I withdrawn)), which included the direct testimony of three witnesses: REDACTED, BCBA, (Exhibit R), REDACTED, Classroom Teacher (Exhibit S) and REDACTED, REDACTED’s mother (Exhibit T).
At the hearing, the DOE opted to merely submit six pieces of documentary evidence (Exhibits 1-6) but not defend its Prong I burden (T @ 58, 73, 106). The DOE waived its opening statement , did not present any witnesses, and merely opted to crossexamine Parent witnesses (T @ 74). The DOE did acknowledge the unilateral placement providing multiple services to the student but requested a denial of the ABA services as requested by Parent as excessive and not related to academics (T @ 104).
FINDINGS OF FACT AND DECISION
The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) was enacted with the primary purpose to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22). An IEP is designed as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]).
A FAPE is offered to a student when the board of education (a) complied 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 (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]). The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression'" and if the IEP affords the student with an opportunity greater than mere "trivial advancement" (Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]); in other words, likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379 ; Walczak, 142 F.3d at 132).
The case at hand is a tuition reimbursement case and is therefore governed by the holding of the U.S. Supreme Court in Burlington School Comm. v. Dept of Education (471 U.S. 359 [1985]). That case set forth a three-prong test for determining if tuition reimbursement is warranted: (1) were the services offered by the school district inadequate or inappropriate; (2) were the services selected by the parents appropriate; and (3) do equitable considerations support the parents’ claim. Enacted state legislation puts the burden of proof for the first prong on the school district and for the second prong on the parent (Chap. 583 of Laws of 2007).
Prong I:
In the instant matter, the DOE bears the burden of presentation and persuasion in all allegations raised in the DPC. Herein, the DOE failed to present a Prong I case, failed to present any witnesses, merely submitted documentary evidence and opted to briefly cross Parent witnesses. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs. Application of a Child with a Disability, Appeal No 93-12; Application of a Child with a Disability, Appeal No 93-9; Application of a Child with a Handicapping Condition, Appeal No 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487, March 11, 1983. The SRO has found that allegations that are left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.” Application of a Student with a Disability, 01-044 (SRO March 27, 2002). The DOE’s silence at hearing has the effect of conceding every point alleged by the parent against the DOE unless it is inconsistent with the hearing record. Id. Herein, as the DOE failed to present a Prong I no further analysis is required as a FAPE denial is deemed conceded. Prong II:
Having determined that the DOE did not offer the student a FAPE for the 2022/23 school year, I now proceed to evaluating the appropriateness of the parents’ unilateral placement of the student at REDACTED along with the additional privately obtained ABA Therapy and BCBA supervision. The parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch Dist Four v. Carter 510 U.S. 7 [1993]). The private placement need not employ certified special education teachers, Carter, supra. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of the unilateral placement: “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).
In the case at hand, the DOE cross-examination of parent witnesses did not generate a material challenge to parent assertions. Contrarily, the evidence and testimony presented by the parent supports that REDACTED and the additional ABA Therapy and BCBA supervision privately obtained was an appropriate placement, individualized to meet REDACTED’s needs, and resulted in progress for the 2022/2023 school year.
Herein, I credit the evidence and testimony (Exhibits J-T) submitted by Parent and find it establishes that the placement at REDACTED was appropriate as it provided a program and services that were directly related to REDACTED’s needs and one in which he was able to make meaningful progress. Based upon the foregoing, I therefore find that REDACTED was an appropriate placement for REDACTED for the 2022/23 school year. The record reflects REDACTED provided a rich supportive environment that correlated well with REDACTED, that the curriculum was specifically tailored to meet REDACTED’s needs and that he received a highly individualized instruction that enabled him to make appropriate progress. I find the evidence to substantiate the program offered a small, rich, supportive environment with intensive 1:1 and small group instruction, multi-sensory instruction, modifications, supports and related services required by REDACTED to make progress. Further, I find ABA a necessary component in addressing REDACTED’s educational needs. Parent witnesses, all with first-hand knowledge of REDACTED, were unified in establishing his need for this supplemental support. On the other hand, the DOE presented a mere speculation in stating: “is medical necessity, not necessarily academic” (T @ 104) as the statement proved unfounded.
Based upon the foregoing, I find that the student made meaningful progress at REDACTED for the 2022/23 school year across the board: academically, socially and emotionally. The record reflects that REDACTED was a placement that was “specifically designed to meet the unique needs” of the student Frank G, supra and that REDACTED has made progress therein (Exhibits J-T). I further find that the supplemental ABA Therapy and BCBA supervision appropriate.
Prong III:
Having found REDACTED along with the supplemental ABA Therapy and BCBA supervision an appropriate placement/program, I now consider equitable considerations, the final criterion for a reimbursement award. In weighing the equities, “the critical consideration, as the Court sees it, is whether the parents have cooperated in good faith to attempt to develop an IEP to the maximum extent possible, Schaffer, supra. There is nothing in the record to show that the parents were anything other than cooperative. There is no evidence in the record to suggest that the parent obstructed the DOE or acted in bad faith, in any regard, at any time. DOE did not raise any challenge. Parents who do not obstruct their school district’s placement process will not be precluded from receiving reimbursement for equitable reasons. See, C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014); R.B. v. N.Y.C. Dep’t of Educ., 713 F.Supp.2d 235, 248-249 (S.D.N.Y. 2010); see also A.R. v. N.Y.C. Dep’t of Educ., 2013 WL 5312537, at *10 (S.D.N.Y. Sept. 23, 2013). Where the parents “cooperate with the District in its efforts to meet its obligations under the IDEA . . . their pursuit of private placement [is] not a basis for denying their tuition reimbursement . . .” C.L., 744 F. 3d at 840. Further, a finding or concession of FAPE deprivation necessarily tips the equity of private tuition reimbursement by the DOE in the Parents’ favor. N.R. v. N.Y.C. Dep’t of Educ., 2009 WL 874061 p.*7 (March 31, 2009).
I find that the DOE failed to offer the student a FAPE for the 2022/23 school year, that the unilateral placement of the student at REDACTED was appropriate, that the supplemental ABA services and BCBA supervision were appropriate, and that equitable considerations weighed in favor of the parents’ request for reimbursement for all costs associated with said placements of the student for the 2022/23 12-month school year.
Based upon the foregoing,
ORDER
It is hereby Ordered that within 30 days of receipt of this Order, The Department of Education shall:
1. Directly fund &/or reimburse all tuition and costs associated with the student’s attendance at REDACTED for the 12-month 2022/23 school year;
2. Provide direct funding for 10 hours per week of ABA services as well as 2 hours of direct BCBA supervision for the 12-month 2022/23 school year; and
3. Provide appropriate special transportation to and from the unilateral placement.
All payments shall be supported by the presentation of appropriate documentation.
This Order excludes any sessions that may have been previously paid by the DOE pursuant to any Pendency Agreement.
Dated: November 5, 2023
Maria R. Dispenza
Maria R. Dispenza, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has the right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in the computing the 25 or 35 day period.” (8NY CRR 279.2[b]). Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD ON September 18, 2023
1. DOE: IEP, 11/15/21 -42pp DOE
2. School Progress Report, 05/11/21-1pp DOE
3. Special Education Progress Report, 08/2021 -6pp DOE
4. Conductive Education Progress Report, 08/06/21 -5pp DOE
5. Speech and Language Progress Report, 08/09/21 -4pp DOE
6. Occupational Therapy Progress Report, 08/06/21 -6pp Parent: DOE
A. Due Process Complaint, 08/22/22 -11pp
B. Ten Day Notice, 06/10/22 –2pp
C. REDACTED Program Description, 2022/23 SY –3pp
D. Student Enrollment Contract, 06/29/22 –9pp
E. Tuition Affidavit of REDACTED, 09/20/22 –1pp
F. Student Schedule, 2022/23 SY –1pp
G. Student Attendance, 2022/23 SY –1pp
H. Services Agreement, 07/21/22 –1pp
I. Provider Affidavit of REDACTED, Withdrawn –1pp
J. Conductive Education Progress Report, 06/15/22 –4pp
K. Special Education Progress Report, June 2023 –6pp
L. Speech and Language Progress Report, 06/15/23 – 6pp
M. Occupational Therapy Progress Report, 06/16/23 – 19pp
N. Physical Therapy Progress Report, 06/20/23 – 8pp O. Behavior Intervention Plan, 07/10/19 – 5pp
P. ABA Progress Report, October 2022 – 13pp
Q. Resume of REDACTED, Undated -2pp
R. Affidavit of REDACTED, 09/08/23 -10pp
S. Affidavit of REDACTED, 09/11/23 -12pp
T. Affidavit of REDACTED, 09/13/23 -3pp