New York City Department of Education, Impartial Hearing Decision

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 11, 2023

For the Student:

REDACTED Legal Assistant

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 16, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

For the Department of Education:

No appearance

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 15, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

REDACTED Provider

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 4, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

REDACCTED Applied Behavior Analyst REDACTED

For the Department of Education:

No Appearance

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 18, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

For the Department of Education:

No Appearance

I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1), concerning the special education of REDACTED (“Student”) for the 2022-2023 school year.

The Parents moved to extend the compliance date on several occasions for witness availability and preparation for hearing. In considering the requests, I weighed the cumulative impact of the relevant factors and found that the need for the extensions was greater than any delay in the resolution in this matter.

Attached is a list of persons who attended the hearing and evidence that was submitted. The record was closed on August 24, 2023.

BACKGROUND

Student is REDACTED years old and diagnosed with autism spectrum disorder.

Student attends REDACTED program, a DOE REDACTED school in a REDACTED program. She receives speech therapy and occupational therapy. (Tr. 38-39)

ABA therapists provided by REDACTED push into Student’s class and related services of speech and occupational therapy for 25 hours per week. (Tr. 39)

Student has speech delays. She speaks in very short sentences and has issues with attention. She requires continual redirection for her to remain on task. She needs to have things broken down into small pieces.

Student is able to learn in a small structured environment.

Student has weak hands and requires occupational therapy to build up her skills.

Student does not understand social cues. She requires a lot of preparation in order to behave in new environments.

Student has delays with her daily living skills. Student has significant communication, social and behavior challenges. She has limited communication to express things. (Tr. 68)

Student has interfering behaviors which could include aggression and self-injury. She is not motivated to interact with peers. She engages in repetitive behavior, singing, talking, and yelling, most of the time out of context. (Tr. 69)

Student is significantly behind across all academic domains for her age. She is not close to grade level. (Tr. 71)

On March 9, 2022 the DOE convened an IEP meeting for the 2022-2023 school year. Parent was advised that they could not put ABA on the IEP because it was not in the budget. (Tr. 40)

Parent only received a draft of an IEP. (Tr. 40)

Student’s Parents advised the CSE on June 16, 2022 of their concerns with the recommended program and put them on notice of their intention to seek funding for school and home-based ABA therapy. (Exhibit E)

Parents provided Student with one-to-one school and ABA home-based therapy for several prior years. They continued to provide Student with same level of support during the 2022-2023 school year.

Parent filed a due process complaint to obtain funding for 25 hours per week of school-based ABA therapy and ten hours per week of home and community-based ABA therapy. They requested all services to be based on a fifty-two -week school year. (Exhibit A)

DEPARTMENT OF EDUCATION’S CASE

The Department of Education (DOE) was not represented in any of the proceedings.

PARENTS’ CASE

The parents were represented by their attorney REDACTED. It is their position that the DOE failed to offer a FAPE to Student for the 2022-2023 school year. It is their position that the DOE recommended a program contrary to the neuropsychological evaluation which recommended ABA. They argue that their refusal to provide ABA is predetermined and not based on Student’s needs. It is their position that Student continues to require the same level of support of ABA both at school and at home in order for her to continue to progress. It is their position that the equities favor Parents. They submitted evidence in support of their claim. Parent and Board-certified behavior analyst (BCBA) testified.

FINDINGS AND CONCLUSIONS

It is well-established that a district may be required to pay for private educational services for a student with a disability, if the services offered by the DOE are inadequate or inappropriate, the nonpublic school is appropriate to meet the student’s unique educational needs, and there is no equitable bar to recovery. Sch. Comm. of the Town of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 114 S. Ct. 361 (1993); 20 U.S.C. § 1415(e)(2).

The purpose of the IDEA is to ensure that students with disabilities have a free, appropriate public education that emphasizes services designed to meet their unique needs, and prepare them for further education, employment and independent living. 20 USC 1400(d)(l)(A)-(B).

A FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) 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. 176, 206, 207 [1982]).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. (Application of a Child with a Disability, Appeal No. 04-046; The IDEA requires that the CSE include not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment) and not less than one special education teacher, or where appropriate not less than one special education provider of such child (20 U.S.C.§ 1414[d][1][B).

Not all procedural errors render an IEP legally inadequate and result in the denial of a FAPE. The procedural error must either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007.

The appropriate education mandated by the IDEA does not require states to “maximize the potential of handicapped children”. Walczak v. Florida Union Free School District, 142 F. 3d 119 (2d Cir. 1998) (citing Rowley), An appropriate public education under IDEA is one that is “likely to produce progress, not regression” Id. (citing Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. 118 F. 3d 245 248 (3d 245, 248, (3d Cir. 1997).

The burden of proof is on the school district during an impartial hearing, except that parents seeking tuition reimbursement for unilateral placement have the burden of proof regarding the appropriateness of such placement. Educ. Law 44049l09c); M.P.G. v. New York City Department of Education (SDNY 2010).

The Parent must establish that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child’s special education needs. The fact that the facility selected by the Parent to provide special educational services to the child is not State approved as a school for children with disabilities is not dispositive of the Parent’s claim for tuition reimbursement. (Florence County School District Four v. Carter by Carter. 114 S.Ct. 361[1993]). The parent must prove that the student will receive an appropriate educational benefit from the program. The Second Circuit framed the legal standard for the second prong in Frank G. v. Board of Education 459 F. 3d 356 (2d Cir.

2006) and Gagliardo v. Arlington Central School District. 489 F.3d 105 (2d. Cir. 2007). Under Frank G the Court held that “to qualify for reimbursement under the IDEA, Parents need not show that a private placement furnishes every special service necessary to maximize the student’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handclapped child, supported by such services and are necessary to permit the child to benefit from instruction” (Id.).

With respect to prong two, the parents must show that the educational program met the student's special educational needs Burlington supra at 471 M.S. v. Board of Education, 231 F.3d 96, 104-105 (2nd Cir 2000). The private school need not employ certified special education teachers, nor have its own IEP for the student. Application of the New York City Department of Education, Appeal No. 06-037; Application of a Child with a Disability, Appeal No. 02-111.

Plaintiff's burden is to show that the program was properly designed for the student to progress and is not required to show that the student in fact progressed significantly. G.R. v. New York City Department of Education, 07 CIV 4711 (TPG) (SD NY Decided August 7, 2009).

The SRO has determined as a matter of law that a parent's unilateral placement of a child in a school that does not provide the necessary related services a student needs renders the placement inappropriate under Prong II of Burlington. See, Application of a Child with a Disability, Appeal No. 11-057 (SRO denied tuition because the private school did not provide adequate related services to meet the child's needs)

Courts consider the “totality of the circumstances” and parents “need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Frank G., 459 F.3d at 364-65;

The IDEA requires that educational instruction must be provided to the child in the least restrictive environment, with the child participating to the maximum extent possible in the same classrooms and activities as non-disabled children. See 20 U.S.C. § 1412(a)(5)(A); Rowley, 458 U.S. at 203-204. While parents are not held as strictly to the least restrictive environment standard as school districts, “the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement.” Application of a Student with a Disability, Appeal No. 08-130 (denying reimbursement where unilateral placement “did not provide the student with special education services in the least restrictive environment”)

The third and final criterion for an award of reimbursement is that the claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA, Burlington supra at 471 U.S. At 374.

New York courts consider whether the parent has “failed to cooperate with a school district or otherwise frustrated a district's attempt to offer a FAPE” and whether the parent attended IEP meetings and school visits and communicated with the DOE. D.A v. N.Y.C. Dep't of Educ, 769 F. Supp 2d 403, 419020 (S.D.N.Y. 2011). under the IDEA, Burlington supra at 471 U.S. At 374.

With respect to prong one the DOE did not put on any witnesses to defend their IEP. Parent in the due process complaint enumerates DOEs failure to provide an appropriate program or placement. DOE did not dispute any of the allegations. I find evidence establishes that ABA is essential to Student’s program and was omitted from the IEP. I find that DOE failed to provide a FAPE to Student for the 2022-2023 school year. I find that the DOE did not meet their burden under prong one.

With respect to prong two, Parent testified that Student’s ABA therapists help her in social-emotional environments. They help her with speech delays. Student receives speech therapy but Parent opined that without the ABA therapy, she would not have the ability to express herself.

Student has repetitive behaviors. Parent explained that when she is away from her therapist they definitely get more pronounced.

Student has delays with the majority of things that she does on a daily basis. Therapists have broken down things that Student does on a daily basis, such as learning to tie her shoes.

Therapists are with Student all day long and at her speech and occupational services.

Parent opined that Student requires ABA during breaks and long weekends. She explained that after any break there is a regression in Student’s learning and social behaviors. (Tr. 41)

Parent explained that student’s needs and challenges interfere with her ability to learn. She opined that without the ABA supports, she would not be able to learn. She testified that Student did not progress during the time period that she was not receiving ABA. They saw a deterioration in her social emotional behavior and in her ability to express herself.

Parent opined that Student made progress with her ABA services. Her sentence structure has improved, her understanding of money, time and her handwriting. Therapists come up with lesson plans and goals. They break things down for Student and help her learn.

Parent opined that Student requires home ABA. It enables her to transfer over the skills she learns in one environment to a different environment and to different people. (Tr. 45)

She testified that parent training helps them to maintain skills in a different environment. (Tr. 45)

She opined that Student would “absolutely” regress without ABA. “There’s no question” (Tr. 45)

REDACTED is a BCBA. She works at REDACTEDD as a clinical supervisor and lead therapist on Student team. She has been working directly with Student since 2019. She sees Student once a week at school and once a week at home.

REDACTED is a private ABA company in New York City. They provide ABA therapy, speech therapy, consultations and evaluations for children who have autism spectrum disorder. (Tr. 59)

They provide Student with 25 hours a week of ABA at school and 10 hours a week at home. ABA is evidence-based. Student requires one hour a month of team meetings and two hours per week of team supervision. She explained that Student has a large team of four ABA therapists that coordinate on her goals and program. She explained the importance of consistency. All of her other providers are BCBAs. (Tr. 66)

She opined that one hour per week of parent training is needed for them to be able to parents to carry over behavioral procedures. (Tr. 67)

They provide an annual progress report, and they have a behavior intervention plan that is updated on an as needed basis. (Tr. 68)

Witness described the different programs at school. They encourage and prompt Student to request using complete sentence. They have a waiting program where they prompt and support her to wait for systematically increased durations of time. They have a coping strategies program. When Student is frustrated or upset they prompt her to choose one of a variety of coping strategies such as sitting with weighted blanket, taking deep breaths, or taking a break. They take data on all of her interfering behaviors through the day. She explained that the coping strategies, waiting, functional communication are all prerequisites to her ability to sit and be ready to receive instruction from her teacher.

They prompt her to follow through on whatever the classwork or assignment is for each academic period. She opined that Student could not make progress against her academic goals without the ABA program in place. (Tr. 73)

During Home ABA they work on the same skills as in school. They work on language and communication. Student made progress in her ability to answer questions. They focus on activities of daily living, brushing teeth, washing face, flossing, picking appropriate clothing and making her bed. They worked on introducing her to try new and more nutritious foods. Independence is a goal. (Tr. 75) She explained the importance of home -based ABA especially with her social management goals and skills. (Tr. 83) She opined that Student could not be able to make any reasonable progress without additional practice and carry over at home.

They collect data on every goal and skill to track progress. There are monthly team meetings to analyze graphs and trends. Goals are developed through a number of assessment procedures. They consult with Parents. Program is individualized. (Tr. 78)

There is communication between Student’s school -based team and her home-based team. They have a good relationship and open communication with Student’s school. (Tr. 81)

Student made progress in self-management skills and needs to practice at home. Witness opined that Student made significant progress in reducing her unsafe and interfering behaviors both at home and at school. She made progress in her ability to request what she wants, and she is more independent.

Evidence is undisputed that Student has had ABA at school and at home for the past several years. I find nothing in the record that would indicate that Student no longer requires the same level of services. I find evidence establishes that with the 25 hours of ABA and 10 hours of home ABA Student has been able to make progress. Evidence establishes that without the services, she would not be able to progress. I find evidence establishes that Student requires services on a 12 -month basis.

With respect to prong three, there is nothing that would prevent Parents from obtaining the relief. They attended the meetings, notified DOE of their concerns and responded to all requests from the DOE.

I find that DOE failed to provide a FAPE to Student for the 2022-2023 school year, I find Student is entitled to 25 hours of ABA at school and 10 hours of Home ABA on a fifty-two-week basis.

Direct and prospective funding are appropriate remedies in due process proceedings seeking payment for unilateral placements (See Connors v. Mills, 34 F.Supp.2d 795 at 805- 806, 132 Ed. Law Rep. 767 (N.D.N.Y., 1998), Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403 (S.D.N.Y. 2011)

Parent testified as to their inability to pay for the ABA services. (Tr. 45) I find Parents are entitled to direct funding.

REQUEST FOR TRANSPORTATION

Under New York State Education law § 4402(4)(d), the Department is required to provide transportation up to a distance of fifty miles to and from a nonpublic school if the Committee on Special Education (“CSE”) or School Based Support Team (“SBST”) has identified the student as requiring special education services, and if the student attends the nonpublic school for the purpose of receiving services or programs similar to those recommended by the CSE/SBST. Furthermore, the IDEA requires school districts to provide related services, including transportation, “as may be required to assist a handicapped child to benefit from special education.” 34 C.F.R. § 300.24.

I find Student is entitled to transportation to and from school.

ADDITIONAL CLAIMS

Parent in their due process complaint requests one hour per week of Parent training with a BCBA. (Exhibit A 12) In their request for pendency, they request two hours per month of Parent training. (A 10) In closing, there was no mention of Parent training. There was testimony about the need for Parent training. Student has been receiving home ABA services for years. I find that one additional hour per month of Parent training is sufficient.

There was testimony about the need for team meetings and supervision. There was no request in the due process request. I find no grounds to award funding for additional hours.

ORDER

The DOE shall directly fund 25 hours per week of ABA therapy by [REDACTED] at school at the rate of $250 an hour upon evidence of services, invoices and rate on a 12-month basis.

The DOE shall directly fund 10 hours per week of ABA therapy at home at the rate of $250 an hour upon evidence of services, invoices and rate on a 12-month basis.

DOE shall directly fund Parent training and counseling one hour per month at the rate of $250 an hour on a 12-month basis.

DOE shall provide transportation to and from school on a 12-month basis.

Sharyn Finkelstein, Esq.

May 5, 2023

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 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.

EVIDENCE ENTERED INTO THE RECORD

A. Hearing request 9/6/2022 (13 pages)

B. Neuropsychological consultation evaluation 1/21/2020 (15 pages)

C. Neuropsychological consultation summary 8/6/2021 (5 pages)

D. ABA progress report 1/22 (16 pages)

E. Ten-day notice 6/16/2022 (2 pages)

F. Ten-day notice confirmation 6/16/2022 (1 page)

G Behavior intervention plan 11/21/2-22 7

H Pendency from undated 2

I Authorization for ABA services 3/17/23 1

J Findings of fact 9/1/21 14

K Findings of fact and decision 11/3/2020 14