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Special Education Law
DECISIONParent PrevailedIHO Case No. 238828

New York City Department of Education, Impartial Hearing Decision

November 21, 2022·Jean Marie Brescia·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 587543 - NYC: 238828

FINDINGS OF FACT AND DECISION

Case Number: 238828

Student’s Name: REDACTED

School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: September 19, 2022

Date(s) of Hearing: November 2, 2022

November 15, 2022

Actual Record Closed Date: November 18, 2022

Date of Decision: November 21, 2022

Date of Distribution if Different than Decision Date: N/A

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON November 2, 2022

For the Student:

REDACTED, Esq.

REDACTED, Parent

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON November 15, 2022

For the Student:

REDACTED, Esq.

REDACTED, Parent

REDACTED, Parent

REDACTED, M.D, Psychiatrist

REDACTED, BCBA, Director of Quality Assurance, REDACTED REDACTED, Head of Admissions, REDACTED

For the Department of Education:

REDACTED, Esq.

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about September 19, 2022. Ex. A.[1] On October 25, 2022, I was appointed by the New York City Department of Education to hear this matter. REDACTED’s parents challenge the Department’s failure to offer REDACTED a free appropriate public education and seek funding for REDACTED’s residential placement at the REDACTED (“REDACTED”), a one-to-one crisis management paraprofessional, and related transportation expenses for the 2022-2023 school year, and reimbursement for the costs of private evaluations. Ex. A.

I conducted a prehearing conference on November 2, 2022. Parent’s counsel and REDACTED’s father appeared. The Department did not appear. Tr. 2-3. Parents’ counsel clarified and confirmed the relief sought by REDACTED’s parents and explained that REDACTED was not attending school and that his parents were unable to “front” the costs of REDACTED while seeking funding for the tuition and costs of REDACTED in these proceedings. Tr. 5. The Department had recently proposed home instruction for REDACTED. Tr. 9. Parents withdrew any claims for relief for the 2021-2022 school year. Tr. 6. Hearing procedures, witnesses and evidence were discussed in order to promote an orderly and efficient hearing. Tr. 10-14. The hearing was scheduled for November 15.[2]

The hearing was conducted and completed on November 15. The Department rested its case without presenting an opening statement, witnesses or documentary evidence. Tr. 28. The Department did not request an adjournment or a continuance to secure witnesses or to disclose and offer documents in evidence or to continue with the settlement process. Parents’ exhibits A through P were admitted in evidence. Parents presented the testimony of witnesses and REDACTED’s mother testified on her own behalf. Both parties presented closing statements on the record.

Neither party requested an extension of the compliance date.

The record was closed on November 18, 2022, upon the Hearing Officer’s receipt of the transcript of the hearing.

JURISDICTION

The due process hearing was held, and a decision in this matter is now rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

REDACTED’s parents consented to the hearing being conducted by videoconference and to transmission of this decision by email.

ISSUES

REDACTED’s parents request funding for tuition and costs at REDACTED, a non-public, non-approved residential school located in New York State. At the hearing, the Department did not defend its IEP or proposed placement. The issues to be resolved are:

  • • Is REDACTED’s residential program, including the support of a 1:1 paraprofessional, an appropriate placement, and least restrictive educational placement, for REDACTED?
  • • Does the balance of the equities favor REDACTED’s parents?
  • • Should the Department’s request to reduce the award of tuition and costs, if any, be granted?

FINDINGS OF FACT

  • • REDACTED is a REDACTED year-old young man whose disability is classified, for the purposes of the IDEA, as autism. Ex. A at 1.
  • • REDACTED has been diagnosed with an REDACTED (REDACTED) with accompanying intellectual and language impairments, REDACTED, and REDACTED. Exs. C at 1, 12, 14, D, E, G.
  • • REDACTED demonstrates pervasive and severe challenges in attention, self-regulation, impulsivity, motivation, motor planning, fine motor strength, social skills, and receptive, expressive and pragmatic language skills. Exs. C at 13-14, D at ⁋⁋ 8-9, E at 1, F at ⁋ 3, I at 1; Tr. 37.
  • • REDACTED manifests severe and dangerous maladaptive behaviors that interfere with his learning. These behaviors include: impulsive elopement (including running to the roof of a building and also running into the street), removing his clothes and running around naked, kicking, head-butting, hitting, punching, throwing items, breaking items, screaming, rolling on the floor, and starting a fire in his bedroom. Exs. D at ⁋ 6, E at 1-2, F at ⁋ 8, G at 1; Tr. 36-37, 40.
  • • As described by REDACTED’s treating psychiatrist, REDACTED has a “fascination” with Spiderman and seeks to climb out windows or onto a roof “to do some kind of Spider[man] type move.” He must be “watched at all time[s].” Tr. 37; see also Tr. 41.
  • • REDACTED insists upon sameness and has “an inflexible adherence to routines, and ritualized patterns of verbal and nonverbal behavior,” and he engages in repetitive patterns of behavior, including hand-flapping and repeating sounds. Ex. E at 1; Tr. 36. He can tantrum and become aggressive when his routines are changed. Ex. E at 1.
  • • REDACTED’s behaviors have become “increasingly challenging in the past two years despite multiple interventions in school and home settings.” Exs. D at ⁋ 6, see also E at 2, F at ⁋⁋ 6-8.
  • • According to REDACTED’s 2021-2022 school year classroom teacher, REDACTED required constant supervision, destroyed school property, and ripped his clothes off at school. Exs. D at ⁋⁋ 6-7, H.
  • • The above behaviors (described in ⁋⁋ 4-8) occur frequently, and are intense, and can cause harm to himself and others, and interfere with his learning and with “his ability to progress in a day [special education] program and develop social and independent living skills.” Ex. F at ⁋ 7.
  • • At school, in his District 75 8:1:1 class with a 1:1 paraprofessional, REDACTED required “a great deal of 1:1 attention and support to respond to the teacher’s instructions and participate in the lesson.” Ex. D at ⁋ 7; see also Ex. H.
  • • REDACTED required, and continues to require, “highly individualized attention from an adult in continuous close proximity.” Ex. C at 14; see also Exs. H, I.
  • • REDACTED also needed adult support and reminders to properly complete activities of daily living such as hand-washing and toileting. Ex. H.
  • • REDACTED’s parents have installed security measures in the family’s home in an effort to keep REDACTED safe. These measures include: gates, cameras and locks. Ex. C at 2.

REDACTED’s Educational History

  • • REDACTED received extensive services for the Early Intervention program, and attended a special education preschool with SEIT and related services as recommended by the CPSE. Ex. C at 1-2; Tr. 63.
  • • REDACTED attended a kindergarten special education program. Tr. 74.
  • • REDACTED has attended Department District 75 schools since first grade, in small classes with the support of a 1:1 paraprofessional and related services. Ex. C at 2; Tr. 64.
  • • REDACTED has made only minimal progress during the past eight years in the District 75 program. Exs. D at ⁋ 11, E at 2; Tr. 54-55.
  • • Starting in kindergarten, REDACTED has also received between three to fifteen hours per week of after-school ABA therapy. Ex. C at 2; Tr. 64-65.
  • • The after-school ABA program was supervised by a Board Certified Behavior Analyst (“BCBA”), Ms. REDACTED. Tr. 49-50. Ms. REDACTED has supervised REDACTED’s home program (creating his treatment plan and supervising the ABA therapists) since 2020. Tr. 51.
  • • During the last school year (2021-2022), REDACTED received “on average” six hours per week of home-based ABA. Tr. 52.
  • • During the pandemic and as of the time of the hearing, and due to the intensity of REDACTED’s behaviors (and the need for a highly qualified ABA provider to address those behaviors), Ms. REDACTED had and continues to “have a hard time staffing his case.” Tr. 57; see also Tr. 58-59.
  • • Since summer 2022 and continuing through the time of the hearing, Ms. REDACTED has been unable to secure home ABA providers for REDACTED, and he has not been receiving his home ABA services. Tr. 58, 60-61.
  • • REDACTED’s home ABA program addressed functional communication, behavioral and emotional skills. Tr. 51.
  • • REDACTED made “very minimal progress,” and demonstrated an increase in negative behaviors, during the past few years due to inconsistency of ABA therapy as a result of the pandemic and because he was “not a candidate for remote services.” Tr. 52.
  • • REDACTED’s last IEP was developed on May 12, 2021. Ex. I.
  • • The CSE recommended that REDACTED continue to attend a 12-month program in an 8:1:1 class in a District 75 school with a 1:1 “health” paraprofessional due to his “risk of elopement.” Ex. I at 3, 23-24.
  • • The Department did not convene an IEP meeting or develop an IEP for REDACTED for the 2022-2023 school year. Tr. 66.
  • • REDACTED’s mother contacted Department personnel at REDACTED’s middle school and high school to ask them to consider recent evaluations of REDACTED and develop an IEP for him. The Department did not schedule a meeting despite REDACTED’s mother’s requests. Tr. 69.

Recent Evaluations

  • • For many years, REDACTED’s parents have worked with medical and other professionals to provide for REDACTED’s needs, including medication management and after-school behavioral therapy. REDACTED has not made progress with these interventions. Tr. 40. Some of these treating professionals had evaluated REDACTED within the past year.
  • • On IQ testing, REDACTED scored in the “Extremely Low” range. Ex. C at 6. On academic skills testing, his scores were all below the first percentile. Ex. C at 8-9. He can recognize a few letters. Ex. C at 2.
  • • REDACTED communicates through two to three word phrases. Exs. C at 1, D at ⁋ 8.
  • • Language testing reveals that he is functioning below the first percentile in all tested aspects of language. Ex. C at 10-11. He is limited in his ability to express his wants and needs. Exs. C at 14, E at 1, I at 3; Tr. 36.
  • • All the professionals who know, have evaluated and/or work with REDACTED recommend that he attend a full-time, ABA-based residential placement. Exs. C at 14, D at ⁋⁋ 1-2, 10[3] (Dr. REDACTED, pediatric neuropsychologist); E at 1-2, F at ⁋⁋ 1, 3, 9-10 (Dr. REDACTED, psychiatrist); Ex. G (Dr. REDACTED, Board-certified in psychiatry and neurology); Tr. 37-38; Tr. 54-55 (Ms. REDACTED, BCBA).
  • • Dr. REDACTED explained that her reevaluation of REDACTED demonstrated that REDACTED has not made progress in academics, social/emotional skills and independent daily living skills. She opined that REDACTED required the “higher level of care” found in a residential placement “in order to decelerate problem behaviors with his learning.” Ex. D at ⁋ 11.
  • • Dr. REDACTED also explained that REDACTED’s parents “have exhausted all lesser restrictive placement options and community resources” and “none of the [prescribed] medications had any lasting effect in changing [his] behaviors but caused him harmful side-effects.” Ex. D at ⁋ 12.
  • • Dr. REDACTED concluded:
  • • The only way [REDACTED’s] needs for structure, treatment, consistency, and safety could be met is in a residential setting. It is imperative that [REDACTED] is placed in a residential setting as soon as possible. If such placement does not take place [REDACTED] will continue to deteriorate emotionally, behaviorally, socially and academically. Moreover, he will be at high risk for elopement. If [REDACTED] is placed in an appropriate therapeutic residential program, he is likely to make reasonable academic and behavioral progress commensurate with his intellectual potential.
  • • Ex. D at ⁋ 12.
  • • Dr. REDACTED also observed that REDACTED has not made adequate progress in his academic, language and behavioral development “because there is no consistency across his life settings,” that REDACTED “needs consistent application of an ABA program throughout his entire day in order to make progress,” and that such consistency “can only be achieved” in a residential school setting. Ex. E at 2.
  • • Dr. REDACTED recommended that REDACTED be placed in a “highly structured and supervised twelve-month therapeutic residential program that includes individualized instructions, intensive ABA component, speech and language therapy, social skills and adaptive living skills training.”
  • • Without such a placement, REDACTED “will deteriorate emotionally, behaviorally, socially and academically” and “be at high risk for imminent physical harm.” Ex. F at ⁋ 10; Tr. 40-41.
  • • Ms. REDACTED agreed with the recommendation that REDACTED attend a residential program that included ABA services because REDACTED has not made progress with his current school and home programming, his negative behaviors had increased, and he needs consistency in his programming. Tr. 54-55.
  • • Ms. REDACTED opined that REDACTED would be appropriate for REDACTED because it would provide him with a small class, ABA and other approved methodologies for students with REDACTED. Tr. 55-56.

REDACTED

  • • REDACTED is a private therapeutic day and residential school located in New York State. Its student body includes students diagnosed with REDACTED; and its program includes a comprehensive behavior program. Ex. J at 1; Ex. M at ⁋ 7.
  • • School staff include psychologists, social workers, related services providers, a full-time psychiatric nurse practitioner, and Board Certified Behavior Analysts (“BCBA”); psychiatric services are available as needed. Ex. J at 1, 4; Tr. 83.
  • • REDACTED currently enrolls 81 students with autism and autism-related disorders. Ex. M at ⁋ 11.
  • • REDACTED personnel utilize ABA and other “peer-reviewed and science-based methodologies” to engage students with behavior and learning challenges. Ex. M at ⁋⁋ 15-16.
  • • REDACTED provides its students with “intensive therapeutic and behavioral treatment based on peer-reviewed and effective methodologies,” including cognitive behavioral therapy and dialectical behavioral therapy. Ex. M at ⁋ 12.
  • • REDACTED’s program includes highly structured, small (4 to 8 students) special education classes, multisensory teaching, music and art therapy, adaptive life skills classes, and recreational activities. Ex. M at ⁋⁋ 13-14, 99-100.
  • • Each classroom is taught be a certified special education teacher with teacher assistants and licensed speech, occupational, physical, music and arts therapists. Ex. M at ⁋ 17.
  • • REDACTED provides 1:1 crisis management paraprofessional support to students with severe behavioral challenges. Ex. M at ⁋ 17.
  • • REDACTED’s educators, clinicians, residential staff and caregivers develop an individualized “transdisciplinary curriculum” for each student, and students receive individualized instruction utilizing ABA and other methodologies. Ex. M at ⁋⁋ 13, 20-21; Tr. 88.
  • • REDACTED’s curriculum includes daily English language arts and literacy, math, social studies, science and adapted physical education, as well as training in activities of daily living and life skills, and follows the New York State Common Core Standards, as modified for each student based upon the student’s needs and focusing on “building foundational skills” in reading, writing, math and social/emotional development. Ex. M at ⁋ 18; Tr. 92, 100.
  • • A BCBA/Licensed Behavior Analyst at REDACTED conducts functional behavioral assessments of, and develops behavior intervention plans (“BIP”) for, students who need them. Ex. M at ⁋ 19.
  • • A student’s BIP and ABA instructional approach are implemented in the School’s educational and residential components of the day, which provides for consistency for the student.
  • • REDACTED’s parents contacted REDACTED in August 2022 and provided documentation to school personnel. This documentation included the Departments 2021 IEP for REDACTED and evaluations and reports from Dr. REDACTED, Dr. REDACTED and Dr. REDACTED and a letter from REDACTED’s 2021-2022 school year teacher. Ex. M at ⁋ 26.
  • • If REDACTED were to attend REDACTED, he would be placed in the School’s “Founders Program,” which provides support in activities of daily living, sensory integration, life skills, communication and pre-vocational skills. Ex. J at 2; Tr. 81.
  • • REDACTED would be placed in the Founders Program because, due to his behavioral needs, he requires the “higher level of support” provided in this program. Tr. 81.
  • • REDACTED provides students in the Founders Program with 1:1 paraprofessional support during the academic portion of the school day, after school and on the weekends, totaling sixteen hours per day.. Ex. J at 2; Tr. 82, 86.
  • • REDACTED provides students in the Founders Program with individualized programming focusing on functional academics, sensory regulation, and social and emotional skills. Classes include no more than four students, and are taught by a New York State certified special education teacher. Ex. J at 2; Tr. 82, 86.
  • • Students are grouped in classes according to functional levels, with classes included students within approximately 36 month age range. Ex. M at ⁋ at 14.
  • • Personnel in the Founders Program utilize ABA and other research-based methodologies with students. Tr. 82.
  • • The 1:1 paraprofessionals working with students in the Founders Program have at least three years of experience working with individuals with autism and are trained in behavioral intervention, crisis intervention, and crisis prevention intervention (intensive training in therapeutic physical restraints, which are utilized when a student is in grave danger of harming themselves or others; “aversives” and physical punishments are not used at all at the school). Tr. 82, 89-90, 91, 95-96.
  • • School personnel concluded that REDACTED required 1:1 paraprofessional support for sixteen hours per day based upon his behavioral “profile,” which included “fully disrobing, elopement, amongst other very complex behavioral needs,” and “safety concerns.” Tr. 85.
  • • When a student engages in crisis-type behaviors in the classroom, the 1:1 paraprofessional can take the student from the classroom to address the behavior and consult with a BCBA. Tr. 83.
  • • REDACTED provides the related services of speech/language, occupational and physical therapies. Ex. J at 3.

Equitable Factors

  • • For the 2022-2023 12-month school year, the cost of the residential program, which (as per testimony) includes the academic component of the program, is $295,695.00; the “1:1 support fee” for 16 hours per day of 1:1 support is $240,000.00; for a total tuition amount of $535,695.00. Exs. J at 1, K, L; Tr. 90.
  • • REDACTED represents that it would pro-rate the above amounts based upon REDACTED’s start date, were he to be enrolled at the School. Exs. K, L; Tr. 84, 94.
  • • REDACTED’s parents, through counsel, submitted a ten-day notice letter to the Department on August 23, 2022. Ex. B. The notice sets forth their concerns about the Department’s failures to provide REDACTED with a free appropriate public education in the District 75 program and to develop an IEP and offer REDACTED a placement for the 2022-2023 12-month school year, which had commenced on July 1, 2022. Ex. B at 1-2
  • • The notice informed the Department of REDACTED’s parents’ intention to place REDACTED at REDACTED and seek funding from the Department for such placement. Ex. B at 1-2.
  • • In early September 2022, REDACTED “extended an offer of acceptance” to REDACTED; however, REDACTED’s parents have not enrolled REDACTED at REDACTED because they do not have the financial ability to pay the REDACTED tuition up front as required by the School’s current enrollment contract and payment schedule. Ex. M at 2 n.1; Tr. 70-71.
  • • REDACTED’s parents have researched other residential programs; REDACTED was the only program with an opening available for REDACTED. Tr. 71-72.
  • • REDACTED has not attended school since early September 2022, and remains at home without special education or services, because REDACTED’s parents are “physically unable to mobilize him and to bring him to school” and because there are no ABA therapists available to work with him at home. Tr. 71, 76-77.
  • • REDACTED’s parents have submitted to the Department the paperwork for home instruction; they are awaiting the Department’s approval of home instruction for REDACTED. Tr. 76.

CONCLUSIONS OF LAW

A board of education may be required to pay for education services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). The fact that the school or the educational and related services selected by the parents are not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982).

The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. The school district also must ensure that “[t]o the REDACTED extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

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

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

In this case, the Department did not present testimony or documentary evidence with respect to its provision of FAPE to REDACTED for the 2022-2023 school year or to rebut the testimony of REDACTED’s parents or their witnesses. Since it is undisputed that the Department did not develop an IEP or offer placement for REDACTED for the 2022-2023 school year and did not offer any testimony or documentary evidence to demonstrate that it offered REDACTED a program “reasonably calculated” to permit him to make progress given his unique circumstances, the Department did not carry its burden of proof and does not prevail on the first “prong” of the Burlington/Carter test.

REDACTED’s parents bear the burden of proof concerning the appropriateness of REDACTED’s program for REDACTED. See, e.g., Frank G. v. Board of Education of the Hyde Park Central Sch. Dist., 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S.Ct. 169 (2007). To meet this burden, REDACTED’s parents must show that the educational services to be provided by REDACTED are reasonably calculated to address REDACTED’s identified special education needs. See C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 82 (2d Cir. 2014); C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free Sch. Dist., 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs.... To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to REDACTED their child’s potential. They need only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child; supported by such services as are necessary to permit the child to benefit from instruction.”

Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 831 F. App’x 29, 78 IDELR 2 (2d Cir. 2020) (Summary Order).

The preponderance of the evidence establishes that (1) REDACTED needs a residential placement at this time to make meaningful educational progress, and (2) REDACTED’s Founders Program is reasonably calculated to address REDACTED’s complex REDACTED of identified and significant special education needs. REDACTED’s need for a residential program is demonstrated by the minimal progress he has made in the Department’s District 75 program with at-home ABA and by the uncontroverted and credible testimony of the medical and educational professionals who have evaluated, treated and/or worked with REDACTED. See paragraphs 4-12, 17, 31-41 above.

As to REDACTED, the evidence demonstrates that REDACTED’s parents have made a reasonably calculated determination that REDACTED’s program would meet REDACTED’s significant and severe special education needs. In particular, the record is clear that REDACTED needs the intensive staffing, behavioral and other supports, related services, individualized programming with ABA, and the functional academics and ADL/life skills training that is provided at REDACTED. See paragraphs 42-53, 55-64 above. As a result, a preponderance of the evidence demonstrates that REDACTED would provide REDACTED with an appropriate special education program. See, e.g., R.E., 694 F.3d at 187; T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 878 (2d Cir. 2016) (unilateral program appropriate when it meets child’s needs); F.B. v. New York City Dep’t of Educ., 132 F. Supp. 3d 522, 555-56 (S.D.N.Y. 2015) (unilateral program appropriate when it provided instruction and related services individualized to child’s needs).

The Department argues that the evidence does not adequately establish the contours of REDACTED’s program for REDACTED, specifically that the record does not include the academic and other instruction that REDACTED would receive at REDACTED. Tr. 118. The record does not support the Department’s argument. The witness from REDACTED credibly testified that the School would provide REDACTED with a functional academic and life skills program. See paragraphs 47-51, 58 above. This is precisely the type of curriculum that REDACTED requires.

The Department also argues that REDACTED, as a residential program, is too restrictive for REDACTED, and that, furthermore, the provision of a 1:1 paraprofessional for REDACTED in this residential setting demonstrates that the placement is inappropriate for him because it cannot meet his needs. Tr. 118. Again, the record does not support the Department’s arguments. REDACTED has not made appropriate progress in a highly restrictive District 75 program; at this point in time, as the witnesses credibly explained, he needs the consistency of a residential program to make progress. See paragraphs 24, 34, 37-38, 40 above. Furthermore, the provision of the 1:1 paraprofessional does not render the REDACTED program inappropriate; REDACTED needed the 1:1 paraprofessional in the Department’s District 75 program for his own safety and the safety of others; he needs the 1:1 paraprofessional at REDACTED for the same reasons.

Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that REDACTED’s program is appropriate for REDACTED for the 2022-2023 school year. As a result, REDACTED’s parents prevail with respect to the second Burlington/Carter criterion.

With respect to the third Burlington criterion, whether equitable considerations support REDACTED’s parents’ claims, the evidence establishes that REDACTED’s parents have cooperated with the Department for many years by placing REDACTED in the Department’s District 75 program, communicating with Department personnel, working with the Department to try to institute home instruction, and providing the requisite statutory notice. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district).

The Department argues that relief must be denied because there is no current obligation on the part of REDACTED’s parents to pay the REDACTED tuition. Tr. 118-119. Parents argue that such an obligation is not required in a case such as this, when a student’s parent is unable to pay tuition and costs in advance and then seek reimbursement from the Department, and that this case is governed by Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998) and Mr. and Mrs. A. v. New York City Department of Education, 769 F. Supp. 2d 403, 428-429 (S.D.N.Y. 2011). Tr. 121-122.

This case has more in common with the Supreme Court’s decision in Burlington. In Burlington, the Supreme Court held that where the school district’s IEP program and placement are inappropriate, “it seems beyond cavil that ‘appropriate’ relief would include a prospective injunction directing the school officials to develop and implement at public expense an IEP placing the child in a public school.” 471 U.S. at 370. Here, REDACTED does not have an IEP because the Department did not develop an IEP for him for the 2022-2023 school year. His parents have located an appropriate residential placement for him; his parents would sign a contract with REDACTED to permit his attendance and to memorialize their obligation to pay the tuition—but they cannot afford to sign the contract. In addition, there is no other available appropriate placement for REDACTED. Moreover, home instruction is a “stop gap” measure, and it is not even in place yet. Furthermore, it would be patently unfair to extend the protections granted by the United States Supreme Court in Burlington and Carter only to those disabled students whose parents have the financial wherewithal to “front” private school tuition and subsequently seek repayment from the school district.

I can exercise my authority to grant appropriate relief in this case in light of the specific circumstances of this case: the Department should be ordered to pay for REDACTED’s attendance at REDACTED prorated for the days of actual attendance at the School during the 2022-2023 school year. See, e.g., Burlington, 471 U.S. at 369 (a court has broad discretion to grant relief it determines is appropriate for a student with a disability).

In the alternative, the Department argues that, if tuition relief were to be awarded, the relief should be reduced by the amount of the cost of the paraprofessional. Tr. 119. The Department does not provide a basis for this request. In any event, I find that, at this time and given REDACTED’s severe and dangerous behaviors, he continues to need 1:1 supervision by an adult who is in close proximity to him and who has training in behavior prevention and in implementing BIPs.

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

At the hearing, REDACTED’s parents withdrew their request for reimbursement of private evaluations. Tr. 115. This claim is deemed withdrawn with prejudice. The claim for transportation was not litigated and is deemed abandoned and dismissed.

ORDER

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

The Department of Education shall fund REDACTED’s placement at the REDACTED, including the costs of the 1:1 paraprofessional, for the days of his attendance at the School during the 2022-2023 school year.

SO ORDERED.

DATED: November 21, 2022

Jean Marie Brescia, Esq.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

DOCUMENTATION ENTERED INTO THE RECORD

PARENTS’ EXHIBITS

NO.

DATE

NAME OF DOCUMENT

# pp.

A 09/19/22 Impartial Hearing Request 5

B 08/23/22 Ten Day Notice 2

C 06/28/22 Neuropsychological Evaluation by REDACTED, Psy.D. 21

D 11/07/22 Affidavit of REDACTED, Psy.D. (Curriculum Vitae Attached) 7

E

05/11/22

Psychiatric Evaluation by Dr. REDACTED, MD

2

F 11/08/22 Affidavit of REDACTED, M.D. 4

G 03/14/22 Neurological Evaluation by REDACTED, MD 3

H 08/11/22 Letter from Classroom Teacher 1

I 05/12/21 Individualized Education Program 32

J UNDATED REDACTED School Program Description 4

K 10/17/22 REDACTED School Acceptance Letter 1

L 2022-2023 REDACTED School Tuition Letter 1

M 11/10/22 Affidavit of REDACTED (Curriculum Vitae Attached) 10

N 07/08/22 1040 Parent’s Tax Return 2

O 03/28/22 Authorization for Neuropsychological Assessment 7

P

09/15/22

DOE Settlement Notification

2

Footnotes

[1] Exhibits shall be referred to as follows: Parents’ Exhibits are designated by a letter; Department’s Exhibits are designated by a number; and Impartial Hearing Officer’s Exhibits are designated as “IHO.”

[2] While the Department had communicated to Parent’s counsel that it was interested in resolving this matter through settlement (see Ex. P), discussions were stalled at the time of the hearing. Tr. Counsel were directed to inform me if settlement discussions resumed and/or settlement became a possibility. Tr. 110-112. I have received no such notice from counsel.

[3] The affidavits admitted in evidence state that they are submitted “pursuant to the instructions of [the] IHO.” See, e.g., Ex. D at ⁋ 3. While I provided, on the record, specific instructions for affidavits (should counsel decide to submit affidavits) to be legible, properly formatted, and properly notarized and disclosed, I did not instruct anyone to submit affidavits. See Tr. 10-14, 38.