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CASE NUMBER: 588321 - NYC: 239502
FINDINGS OF FACT AND DECISION
Student’s Name: Redacted
School District: Service District # 88, Home District # 2
Impartial Hearing Officer: Michelle S. Babbitt
Date of Filing: 09/23/2022
Hearing Requested by: Parent
Dates of Hearing: 1/24/2023
Record Close Date: 3/17/2023
NAMES AND TITLES OF PERSONS WHO APPEARED ON 1.24.2023:
For the Student:
Redacted, Esq. (hereinafter referred to as “Parent’s Representative”) Redacted, Parent (hereinafter referred to as “Parent’s Witness #1”) Redacted, Director of Education at Redacted (hereinafter referred to as “Parent’s Witness #2)
For the Department of Education (“DOE”): Redacted, Esq., Agency Attorney (hereinafter referred to as “District’s Representative”) representing DOE in hearing on the merits Redacted, Esq. Agency Attorney-representing DOE in hearing on Pendency only
Date of Decision: 3/17/2023
BACKGROUND AND LIMITED PROCEDURAL HISTORY
The Parent, through counsel, filed a Due Process Complaint (“DPC”) on 9/23/22 against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”).
The undersigned Hearing Officer was appointed to preside over this case on 12/22/2022.
On 1/3/2023, I held a status conference in this matter. The parties selected a hearing date of 1/24/2023. The parties also agreed to this date for a hearing on the issue of pendency. On 1/24/2023, a pendency hearing was held in the above matter virtually via WebEx. Participating in the hearing were Petitioner’s representative, and an attorney from the DOE.
Parents assert in their DPC that Pendency lies in an unappealed findings of fact and decision (“FOFD”) issued in case #204368 dated 3/24/2022.[1] The DOE agrees that Pendency lies in the FOFD. The parties stipulated on the record that the Pendency placement is the Private School (Tr. 16).[2] Therefore, the only pendency issue before this tribunal was the disagreement about whether the FOFD has determined that Applied Behavior Analysis (“ABA”) is part of the educational program or was an award of compensatory hours. DOE submits that the grant of 77 hours of ABA is compensatory relief and, as such, is not a component of pendency (Tr.18-25, 28-31). Parent asserts that the grant of ABA hours is part of the educational program, and as such, should be a part of the pendency order (Tr. 25-27). On 1/27/2023, the DOE sent an email detailing its position on pendency pursuant to the request of this tribunal for legal citation for DOE’s position that compensatory education is not part of a pendency order (Tr. 32-33, 35).[3] I issued an Order on Pendency on 1/31/2023.
A hearing on the merits followed the hearing on pendency on 1/24/2023.
HEARING
At the hearing, the DOE did not put submit any disclosure (Tr 35). In its opening statement, the District representative stated: “The DOE is not presenting any witnesses in this matter, nor will it demonstrate it provided the Student a free, appropriate public education for the '22-'23 school year. The DOE reserves its right to challenge the appropriateness of the [Private School] and the entirety of the Parent's requested relief, subject to any testimony and disclosure. The DOE also reserves its right to argue the equities are in its favor, subject to any testimony and disclosure” (Tr. 54-55). DOE did not disclose any documents or call any witnesses (Tr. 56-57).
Such statement and actions are a concession by DOE that it denied the student a FAPE over the period at issue, the school year 2022-2023.
The Parent offered Exhibits A, C-L, R-Z, and AA-CC into evidence, with no objection from the DOE (Tr. 50) Exhibit DD, the affidavit from Witness #1 was admitted, subject to the redaction of information pertaining to prior litigation, settlements or prior IHO decisions (Tr. 39-50). Exhibit B was admitted solely with respect to the hearing on pendency (Tr. 51). DOE objected to the admission of Exhibit M, which addressed the non-implementation of prior orders. I determined Exhibit M to be irrelevant to the issues before this tribunal and it was not admitted into evidence (Tr. 51-53). DOE objected to the admission of Exhibits N, O, P, and Q as they addressed school years not before this tribunal. The exhibits were admitted over objection because they provided background to the Student (Tr. 53-54).
Parent made a brief opening statement (Tr.54-57). Both Parent and the DOE submitted a written closing argument and legal memorandum dated 2/28/2023. [4]
FINDINGS OF FACT AND DECISION
After a full review of the record generated at the hearing, I make the following findings of fact and determinations.
The Student is a hard-working, motivated, almost [REDACTED]-year-old young man, born on March 24, 2005.[5] He is diagnosed with Autism Spectrum Disorder (“ASD”).[6] The Student has long-standing significant delays in cognitive function, academics, all areas of speech and communication, language processing, executive functioning, self-direction, attention, rigidity, transitions, impulsivity, anxiety, low frustration tolerance, reciprocity, fine and gross motor skills, social interaction, behavior, self-regulation, and sensory processing issues.[7] He presents with maladaptive and inappropriate behaviors that, without appropriate support and accommodations, can interfere with his learning and the learning of his peers.[8] When dysregulated, the Student may scream, produce repetitive and inappropriate vocalizations, touch and hit others, bite his fingers, jump, or throw objects such as phones or other electronic items. [9]
The Student is a verbal communicator and can express his wants, needs, and feelings. [10] However, he struggles with receptive, expressive, and pragmatic language delays. The Student communicates in two-to-eight word phrases.[11] As his phrases become longer, the Student’s rate of speech increases to the point of unintelligibility, which results in communication breakdowns.[12] When asked to repeat himself to clarify his message, the Student may become frustrated and shut down.[13] The Student also engages in scripted and non-functional language, characterized by the repetition of comments and questions from his communication partner, which also contributes to communication breakdowns.[14] He will repeat learned phrases such as, “Am I doing good?” or “I need to take deep breaths,” as well as non-descriptive language such as “I want that one.”[15] Although the Student can respond to simple “wh” questions, he confuses or omits various parts of speech and swaps pronouns when formulating sentences.[16] A great deal of facilitation is required for the Student to interact with peers; he prefers to interact with adults. [17]
The Student’s sensory processing challenges impact his ability to regulate his arousal/regulation levels throughout the day.[18] He is sensitive to auditory and visual stimuli and, at times, requires noise-cancelling headphones to remain regulated.[19] Unexpected or loud noises, background sounds, verbal directives, bright lights, videos, and large groups of people may affect his ability to remain regulated.[20] The Student may also become frustrated and dysregulated when a task is new or perceived as difficult.[21] When the Student’s arousal level increases, he produces repetitive and inappropriate vocalizations, inappropriately laughs, speaks quickly under his breath, and says, “I feel silly.”[22] He also may begin to jump, touch others, or throw electronic items. 23 The Student’s states of arousal fluctuate throughout the day and affect his ability to participate in daily activities and tasks, requiring sensory input to remain regulated and learn. [24]
The CSE did not convene a CSE meeting for the Student for the 2022-2023 school year. The last CSE meeting for him was held on July [23], 2021, but Parent did not receive an IEP. [25]
Parent received a Prior Written Notice (“PWN”) and a school location letter in June 2022 indicating that the Student was being assigned to an 8:1+1 class at the DOE’s [REDACTED]. The Parent, through her attorney, immediately sent a letter to the DOE reiterating her concerns and again objecting to the recommended placement. Nevertheless, the Parent requested that the DOE help her to set up a time to visit [REDACTED] so that she could determine if there was any way that the school might be able to meet the Student’s needs. The Parent’s letter indicated that if the DOE did not offer the Student an appropriate placement and a FAPE for the 2022-2023 school year, he would remain at the Private School, with supplemental at-home after-school ABA instruction, and the Parent would seek reimbursement from the DOE.[26] The DOE did not respond to the letter.
On June 17, 2022, the Parent, through her attorney, sent a 10-Day Notice to the DOE advising the DOE of the Parent’s intent to enroll the Student at the Private School for the 2022-2023 school year if the DOE did not provide the Student with an appropriate placement offer. The 10-Day Notice included the Parent’s concerns that, among other things, an IEP had not been provided, the recommended placement could not meet the Student’s needs and was inappropriate, and that he required full-day ABA instruction and one-to-one support to learn and make meaningful progress.[27] The DOE did not respond to or address the Parent’s concerns. [28] The Parent’s attorney sent a second 10-Day Notice on August 18, 2022, reiterating the Parent’s concerns.[29] The DOE responded, stating that the Parent should file a Due Process Complaint. [30]
The DOE did not elicit any testimony or produce any evidence that refuted or otherwise called into question the appropriateness of the Private School for the Student.
Considering the foregoing and as more fully discussed below, I find that a) the DOE conceded that it did not offer the Student a FAPE for the 2022-2023 school year, the b) Private School offers Student specially designed instruction sufficient to meet Student’s needs, c) there was no showing that at-home ABA is a necessary component of the educational program, and d) the equities support the Parent’s requested relief for tuition reimbursement.
Burden
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in a parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. [31]
Prong I
The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE").[32] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”).[33] A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits.[34] In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” [35]
As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden, at the hearing. Rather, the DOE Representative indicated on the record that DOE was not introducing any documents or presenting any witnesses. The District representative affirmatively conceded Prong 1 (Tr. 54-55). Therefore, I am constrained to find that the DOE failed to offer the Student FAPE for the 2022-2023 school year.
Prong II
A private school placement must be "proper under the Act."[36] This means that the private school must offer an educational program that meets the student's special education needs. [37] Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”[38] 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.” [39]
Parents need not show that the placement provides every special service necessary to maximize the student's potential.[40] When determining whether a unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether the placement is “reasonably calculated to enable the child to receive educational benefits.”[41] A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. [42]
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their 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 benefits, 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. [43]
The Private School is an independent not-for-profit special education school offering individualized ABA programming to students on the Autism spectrum.[44] The educational programs at the Private School are tailored to each student and incorporate all aspects of a student’s development, i.e., cognitive, social, emotional, physical, and behavioral.[45] The Private School’s educational team collaboratively creates individual programming, related services professionals, transition and vocational coordinators, social workers, the school nurse, and job coaches.[46] Specific goals are created for each student, reflecting his or her individual needs, and are based on student assessments as well as parent participation.[47] ABA programming is implemented by trained staff, including Board Certified Behavior Analysts (“BCBAs”).[48] The curriculum is aligned with the New York State Learning Standards and Common Core Standards.
Small classes, with no more than eight to ten students, provide one-to-one or two-to-one instruction, as needed for each individual student.[49] Instruction includes functional academics, social skills training, self-management, self-determination, household skills, daily living skills, pre-vocational skills, health and safety, speech-language therapy, occupational therapy, cotreatment sessions (so that skills can be generalized across all domains), sensory gym, inclusion with peers, community activities, transdisciplinary group instruction, music therapy, and family support and training.[50] Data is collected daily on each student’s progress and is continually measured throughout the day for the benefit of teachers, supervisors, parents, and the community.[51] Behavioral support and crisis management are offered through trained behavior analysts, behavioral support staff, classroom faculty, and related services therapists, who all work collaboratively to ensure that socially appropriate replacement behaviors are taught. [52]
The faculty at the Private School includes master’s and doctoral-level educators and clinicians, all with expertise in the field of Autism. The faculty includes Board Certified Behavior Analysts and New York State Licensed Behavior Analysts, as well as other staff who are completing the coursework and fieldwork for the BCBA and New York State Licensed Behavior Analyst exams and requirements. [53]
Social opportunities with non-disabled peers are provided for all students through a peer buddy program, social skills groups, and internships. Prevocational and vocational opportunities are provided through school-based jobs and internships, in-house internships, and community-based internships. Speech-Language Therapy (“SLT”) targets receptive, expressive, and pragmatic language skills, as well as play and leisure skills, technology, and executive functioning skills. Each student receives individual SLT, as well as small group instruction and lunchtime consultation. Occupational Therapy (“OT”) targets fine and gross motor skills as well as sensory motor, sensory processing, visual perceptual, and cognitive skills. During OT sessions, students receive instruction on activities of daily living (“ADLs”), safety awareness, self-regulation, assistive technology, health and wellness, leisure, self-determination, prevocational, and vocational skills. [54]
The Private School offers family support, including parent workshops (offered throughout the year on a broad range of topics), individual parent training sessions, parent support groups, classroom observations for parents, home-to-school communication and collaboration, home visits, sibling days, and grandparent education workshops. Clinical team meetings are held quarterly to ensure successful implementation, generalization, and coordination of individualized goals for each student. These meetings include the student’s case manager, lead teacher, speech pathologist, occupational therapist, Director of Education or Supervisor, Transition Coordinator, parents, and outside professionals who work with the student. The school’s curriculum also includes adaptive physical education, music therapy, and nursing services when warranted. [55]
Witness #2 offered testimony describing how the Private School addresses the Student’s educational, behavioral, emotional, communication, sensory, and cognitive needs in a suitable environment. The Student is supported in a small setting and receives individualized programming as well as full-day, individual ABA instruction, modeling, repetition, reinforcement procedures, social interaction through group instruction, practice with daily living skills, academic support, individually tailored academic and therapeutic goals, a behavior intervention plan (“BIP”), and an individually tailored sensory diet along with other sensory integrative techniques so that he can remain regulated and available to learn.[56] Witness #2 testified, that the Student’s 2022-2023 school year classroom contains eight students (Tr. 58), one lead teacher, and three ABA instructors. The classroom staff is supervised by a licensed BCBA.[57] During the 2022-2023 school year, the Student receives five hours of one-to-one and two-to-one individualized ABA instruction and one hour of four-to-one ABA instruction during lunch and leisure skills time, totaling six hours of ABA instruction daily.[58] The Student receives speech-language therapy, a weekly transdisciplinary group with one-to-one support from an ABA instructor, and occupational therapy. The Student’s program is individualized to meet his specific needs and is based on school reports, assessments, and his parents’ input. His curriculum includes functional academics, pre-vocational skills, household skills, self-management, selfregulation, self-care, and community participation. The Student is evaluated through criterionbased assessments throughout his school day across all domains to continuously assess his strengths and deficits and to keep his goals current and accurate.[59] To that end, data is collected, graphed, and analyzed daily. Comprehensive progress reports are generated two times each year. [60]
The Student’s Parents participate in clinical meetings every eight weeks to review his behavior, discuss any issues, and ensure carryover and consistency between home and school. The Student’s parents participate in individualized training and communicate daily with the Private School’s staff (Tr. 77-78). [61]
The Student’s comprehensive BIP at the Private School addresses his maladaptive behaviors. It is implemented throughout his school day, and an emphasis is placed upon minimizing his interfering behaviors such as finger biting, touching others, repeated vocalizations, and aggression resulting from his need for sensory stimulation, frustration, desire for attention, and desire to escape non-preferred demands. Constant implementation of the Student’s BIP has helped him remain regulated, replace, and reduce his problematic behaviors, and has helped him to participate more in learning activities. To address the Student’s maladaptive behaviors, his teachers and staff have successfully added strategies into his curriculum, including functional communication training, “planned ignoring,” a visual schedule, and differential reinforcement of other responses (such as functional communication responses) to increase the frequency of appropriate responses and reduce repeated vocalizations. Differential reinforcement and planned ignoring have reduced the Student’s behavior of touching others. [62]
Witness #2 opined that because of the intensive programming, constant one-to-one support, consistent reinforcement, and modifications instituted by the Private School, the Student has made progress academically. Specifically:
• In mathematics, the Student’s ability to answer written questions relating to charts and graphs, identify equivalent fractions, identify the total amount of money spent, and solve multi-step word problems have all improved. • In reading and writing, the Student has made progress in his abilities to respond to short stories, answer written comprehension questions, make inferences and predictions, as well as generate and write up to five sentences. • The Student’s social skills have improved during the 2022-2023 school year. Specifically, he is now better able to identify appropriate ways to respond to “disguised-mands” or indirect requests. The Student has progressed in his ability to identify and respond to feelings as well as initiate conversations. • Regarding his pre-vocational and household skills, the Student has mastered being able to make single and double-sided copies, scan and send documents to a particular email address, edit his own documents on the computer, and follow an electronic schedule to complete up to four vocational tasks and three household tasks. • Regarding self-care and self-management, the Student has progressed in several areas, including, but not limited to, his ability to clip his own fingernails, understand rules about respect, respond to verbal directions, and raise his hand to answer questions. [63]
The Student receives SLT individually one time per week for 45 minutes, one time per week in a group of two for 45 minutes, and one time per week for 30 minutes during lunchtime. One SLT session per week is co-treated with the Student’s lead teacher or one of his instructors to ensure that services are coordinated across all disciplines. There is also a weekly collaboration with the Student’s transdisciplinary group, which addresses functional, community-based goals and meets one hour per week with one-to-one support for each student.[64] Witness #2 testified that the Student’s SLT sessions have focused on receptive, expressive, and pragmatic speech skills as well as self-advocacy, self-determination, and executive functioning skills. She testified that the Student had made steady progress in following a typewritten task list (with verbal and gestural prompting), identifying a topic of conversation within emails and text messages, and the use of a calendar. With prompting, the Student can participate in one-to-two verbal exchanges with familiar topics. A pacing application on his iPhone is used to help control the speed of the Student’s language.[65] By December 2022, the Student had made progress on receptive and expressive language goals including, but not limited to, following a type-written schedule to complete a series of tasks, understanding temporal concepts related to the calendar, composing a written “to-do” list, pacing his speech, increasing intelligibility, and responding and asking a follow-up question using technology during structured activities. [66]
The Student receives two weekly individual 45-minute sessions of OT and one 30-minute lunchtime OT consultation. Each week, one OT session is co-treated with the Student’s lead teacher or instructor to coordinate services across all disciplines. His OT is also coordinated with his transdisciplinary group. The Student’s OT has focused, in part, on self-regulation, coping skills, and management of his sensory processing deficits, including his sensitivity to visual stimuli (bright lights, videos, and large groups of people) and auditory stimuli (including background noise, verbal directives, and unexpected loud noises), which affects his ability to participate and remain regulated throughout the day.[67] To aid the Student, so he doesn’t become overstimulated, he participates in movement and exercise activities throughout the day to remain regulated. Other strategies include modeling; verbal, visual, and gestural cues; iPhone applications that help identify and address his arousal levels; creating and following a daily calendar on his iPhone; and vibrating prompts on his iPhone. With these strategies, the Student is now able to identify and regulate his own arousal levels and execute appropriate sensory activities to assist him when dysregulated.[68] The Student’s OT also targets self-management skills such as using an electronic calendar and following a daily schedule. Witness #2 testified that the Student has made “steady progress” towards self-management goals regarding his daily schedule and initiating listed tasks independently. His OT therapist reported that he has made “steady progress towards his self-management goals.” [69]
Witness #2 testified that the Student continues to require:
• ABA instruction, one-to-one support, a program designed to meet his individual needs, and research-based tactics to learn. • The systematic fading of prompts within his programming, support to remain on task, redirection, and a dense schedule of reinforcement to maintain focus and engagement. • A program that provides opportunities and one-to-one support to interact with a peer in a structured setting, as is provided at the Private School. • A setting, such as the Private School that conducts and implements a BIP throughout his school day using research-based tactics and daily analysis of his behavioral data [70]
The Student’s progress reports from the Private School also shows his progress since the beginning of the 2022-2023 school year. For example, among other things, at the end of the 2021-2022 school year, the Student required prompts for all steps to use a budget, but by December 2022, he required prompts only for the first four steps and was able to complete the rest independently. Since the end of the 2021-2022 school year, the Student also acquired and mastered new skills such as independently identifying fractions, filling in missing numerators and denominators, providing written responses to money word problems, independently emitting selection-based responses to “disguised-mands,” responding independently to questions on a Level K reader, discriminating between making various types of copies when provided notes on the types and number of copies to make, independently scanning and emailing documents, performing household chores with limited vocal prompts, independently clipping his fingernails, and independently identifying the appropriate person to ask for help in the community - all skills that were not present at the end of the 2021-2022 school year. [71]
DOE cross-examined Witness #2, wherein she confirmed and expanded on that testimony in her affidavit (Tr. 62-98).
Witness #1 testified, via affidavit, that the Student is progressing because of the support provided at the Private School, which is individualized, provides one-to-one support, and utilizes ABA programming. She stated that the Student is improving in terms of his academic, behavioral, social, self-help, ADLs, transitional, communicative, and other skills. Witness #1 stated that the Student has improved in terms of his abilities to communicate his needs and desires and to interact with both adults and peers. She testified that over the 2022-2023 school year, the Student’s self-injurious behaviors have reduced, he is better able to complete tasks, and he has become more independent. Witness #1 opined that the Student has made progress transitioning, traveling, navigating his environment, engaging with his peers, and describing his day. She testified that his self-advocacy skills, reading, writing, and ability to pay attention have all improved over the 2022-2023 school year. Witness #1 stated that the Student has made “significant progress in terms of his self-regulation and gross and fine motor skills.” [72]
I find that based on the testimony of Witness #1 and Witness #2 and Parent’s exhibits, Parent has met their burden in proving that the Private School offers an educational program that meets Student’s needs under Prong II of the Burlington/Carter standard. In reviewing the record, the weight of the evidence establishes that Student’s individual special education needs were addressed by the Private School and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits."[73] The Private School is an appropriate educational placement for the Student for the 2022-2023 school year as it can meet his academic, communication, behavioral, social, self-management, and emotional needs.
Parent has Not Met its Burden with Respect to that Relief which seeks At-home ABA
The DOE is not required to design an educational program to address a student’s difficulties in generalizing skills to other environments outside of the school environment, i.e. athome ABA, particularly where the student is making progress in the classroom. [74]
Courts have generally disfavored services intended to generalize skills outside of the school environment. Several courts have held that the IDEA does not require school districts, as a matter of course, to design educational programs to address a student's difficulties in generalizing skills to other environments outside of the school environment, particularly in cases in which it is determined that the student is otherwise likely to make progress in the classroom.[75] The District is required to provide an appropriate education, not one that maximizes the student’s potential. [76]
Here, the Student attends a Private School which provides ABA services and/or utilizes ABA methodology throughout the school day. The DOE has no obligation to provide for additional at-home ABA unless the service was required for the Student to maintain/retain skills. Parent made no showing that the at-home ABA services were responsible for the Student's progress that was observed in school. Similarly, no evidence was adduced that supported the Student is unlikely to receive educational benefits from his schooling in the absence of home-based ABA services, or the Student is likely to experience regression in the school setting in the absence of home-based ABA services.[77] The fact that the Student may benefit from at-home services in and of itself is not enough to entitle reimbursement for services provided in excess of a FAPE.
As noted by DOE, “Parent failed to provide any testimony or documentary evidence supporting the need/reason for at-home ABA. Parent only provided invoices for the at-home ABA services. There is no evidence as to who provided the ABA, the person’s credentials, benefits, goals, what the services consist of, or that the [Student] will regress if he does not receive at-home ABA services.” [78]
Parent did not present any testimony or documentary evidence showing: (i) To what extent the Private School could not service the student without the athome ABA services.
(ii) That the at-home ABA services were responsible for the Student's progress in the Private School.
(iii) The service was required for the Student to maintain and retain skills.
(iv) The Student is unlikely to receive educational benefits from the Private School in the absence of home-based ABA services.
(v) The Student is likely to experience regression in the Private School setting in the absence of home-based ABA services.
The testimony adduced at the hearing as to the Private School showed the independence and sufficiency of the educational program of the Private School. “The ABA is throughout the entire day. You know, it’s a philosophy, and it’s about how we apply our teaching practices” (Tr. 67-68). According to Witness #2, the Private School can provide 1:1 support, and he made progress academically, in pre-vocational/household skills, and self-care/self-management.[79] The Student maintains those skills previously taught to him (Tr. 76-77). The Private School provides instruction and training to Parents to enable them to address the Student’s behaviors and skills while at home (Tr. 77-78, 101).
Parent has not shown any basis to award the at-home ABA.
Equities
Even if a parent establishes a right to reimbursement under the IDEA, “courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant.”[80] In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. [81]
Here, Parent provided the necessary 10-Day Notice of their concerns with the DOE’s offer of FAPE to the Student for the 2022-2023 school year. Therein, Parent detailed specific concerns.[82] Furthermore, Parent gave the DOE notice of their intention to unilaterally place the Student at the Private School. DOE responded to the 10-Day Notice. [83]
By way of relief, Parent seeks direct funding and reimbursement in the amount of $173,000.00 for the 2022-2023 school year 84 Having reviewed the Private School’s enrollment contracts,[85] and the documents submitted by the Parents,[86] there is no information in the record that shows that Parents do not have the financial wherewithal to fund the tuition and be reimbursed for the tuition costs.
There is no support in the record to find that the tuition associated with the Private School, although substantial, is not reasonable. Moreover, I find that the weight of the evidence establishes that Parent cooperated with the DOE and its CSE’s efforts to develop an IEP and recommend a program and placement for the 2022-2023 school year. Overall and after considering the record at the hearing, I find that the equities support Parent’s claim for reimbursement of the tuition for the 2022-2023 school year.
The undersigned has reviewed the parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
(1) Parent’s claim for tuition reimbursement in the amount of $173,000.00 for the Student’s unilateral placement, is GRANTED for the 2022-2023 school years as follows:
(a) The District shall reimburse the Parent in the amount of $117,000.00, monies paid through 12/30/2022 by Parent toward the Student’s tuition at the Private School.
84 Parent’s Exhibits W and X.
(b) Upon payment by the Parent to the Private School of the remaining $56,000.00 due for tuition, Parent shall be reimbursed for said amount by the DOE.
(2) The District shall pay to the Parent the tuition funds totaling $117,000.00 within 20 days of the date of this decision set forth below.
(3) The District shall pay to the Parent the tuition funds totaling $56,000.00 within 20 days of the date of the submission of an affidavit(s) of payment from the Private School, together with proof of payment.
Dated: March 17, 2023
Michelle S. Babbitt
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.
DISTRICT EVIDENCE
None
PARENT EVIDENCE
A. Impartial Hearing Request 9.22.22 19 pages
B. Findings of fact and decision for hearing no. 204368 (admitted for pendency portion of hearing only) 3.24.22 11 pages
C. Letter to Redacted 6.14.22 6 pages
D. 10 Day Letter 6.17.22 5 pages
E. 10 Day Letter 8.18.22 5 pages
F. DOE Response to Proposed Exhibit E 9.7.22 1 page
G. DOE acknowledgement of receiving the impartial hearing request 10.27.22 1 page
H. Email with attached notice of appearance 11.3.22 2 pages
I. Email from Redacted@schools.nyc.gov 11.4.22 1 page
J. Email to Redacted 11.4.22 1 page
K. IHO’s email ruling on the jurisdictional objection 12.23.22 2 pages
L. Email to seupendency@schools.nyc.gov with attached pendency form 1.3.23 4 pages
N. M Not admitted into evidence Redacted Progress reports 1.20-6.20 11 pages
O. Redacted Progress reports 7.20-12.20 20 pages
P. Redacted Progress reports 1.21-6.21 18 pages
Q. Redacted Progress reports 7.21-12.21 18 pages
R. Redacted Progress reports 1.22-6.22 21 pages
S. Redacted Progress reports 7.22-12.22 19 pages
T. Redacted School’s Upper School Program Description and Features 2022-2023 12 pages
U. Weekly Schedule 2022-2023 1 page
V. Attendance Record 10.4.22 1 page
W. Notarized Tuition Invoice 1.10.23 1 page
X. Tuition Agreement 4.13.22 and 5.11.22 5 pages
AA. Y Invoices for ABA Therapy from Redacted 7.3.22- 17 12.20.22 Z Invoice for ABA therapy from the Redacted 9.14.22- 2 3.29.23 Parent’s spreadsheet listing amounts paid and owed for the Student’s program during the 2022-2023 school year 2022-2023 1 page
BB. Proof of payments made by the Parent toward the Student’s program for the 2022-2023 school year various 7 pages
CC. Affidavit of Redacted 1.13.23 17 pages
DD. Affidavit of Redactedi (redacted in part) 1.12.23 13 pages
IHO EXHIBITS
2. 1 DPCs for case no.204368 (for pendency portion of hearing only) email from DOE re pendency 1.27.23 3 DOE Closing Brief 4 Parent’s Closing Brief APPENDIX Information Term Used In FOFD Redacted Student Redacted, Esq. Parent Attorney/Representative Redacted, Esq., Agency District Attorney Attorney/Representative Redacted Private School Redacted Witness # Redacted, Director of Witness # 2 Education at Redacted 1.27.23 1 page IHO
Footnotes
[1] Parents’ Exhibit B.
[2] Tr. refers to the transcript from the 1.24.23 hearing.
[3] IHO Exhibit 2.
[4] IHO Exhibit 3 (DOE closing brief) and Exhibit 4 (Parent’s closing brief).
[5] Parent’s Exhibits. R17, 19; S8; CC10.
[6] Parent’s Exhibits C3; DD1.
[7] Parent’s Exhibits N2-3; P10; CC4-5; DD1.
[8] Parent’s Exhibits N5-6, 9; O8-9, 11, 17; P8, 10, 14; Q6, 8, 13; R7, 9, 15; S5-8; CC6.
[9] Parent’s Exhibits N5-6, 9; O8-9, 11, 17; P8, 10, 14; Q6, 8, 13; R7, 9, 15; S5-8; CC6.
[10] Parent’s Exhibit CC10.
[11] Parent’s Exhibits O17; P15-16; S18; CC10.
[12] Parent’s Exhibits O17-19; Q16-17; R19-20; S17-18; CC10.
[13] Parent’s Exhibit S17.
[14] Parent’s Exhibits. N10; O18; Q14-16; R17; S16-17.
[15] Parent’s Exhibits N10; O18; Q14-16; R17; S16.
[16] Parent’s Exhibits R17; S16.
[17] Parent’s Exhibits Q16; R19; S17.
[18] Parent’s Exhibit S8.
[19] Parent’s Exhibits Q9; S8.
[20] Parent’s Exhibit S8.
[21] Parent’s Exhibit S11-13.
[22] Parent’s Exhibits O11; R10; S8.
[23] Parent’s Exhibit S8.
[24] Parent’s Exhibits P10; Q8; S8; R10; S11.
[25] Parent’s Exhibit DD-5.
[26] Parent’s Exhibit C; DD9.
[27] Parent’s Exhibit D.
[28] Parent’s Exhibit DD-9.
[29] Parent’s Exhibit E.
[30] Parent’s Exhibit F.
[31] NYS Educ. Law § 4404(1)(c); R.E. v. N.Y.C. Dept. of Educ., 694 F.3d 167, 184-185 (2d Cir. 2012), C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 835-836 (2d Cir. 2014).
[32] 20 U.S.C. § 1400 (d)(1) (A)
[33] 34 C.F.R. § 300.13
[34] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[35] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[36] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359, 370 (1985).
[37] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998).
[38] Gagliardo, 489 F.3d at 112
[39] Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)
[40] Frank G., 459 F.3d at 364-65.
[41] Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115.
[42] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).
[43] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65.
[44] Parent’s Exhibits T2; CC2.
[45] Parent’s Exhibit T2-3.
[46] Parent’s Exhibit T-5.
[47] Parent’s Exhibit T-2.
[48] Parent’s Exhibit CC2.
[49] Parent’s Exhibit T2,4.
[50] Parent’s Exhibits T2-3; CC2.
[51] Parent’ s Exhibit T3.
[52] Parent’s Exhibit T5.
[53] Parent’s Exhibit T12.
[54] Parent’s Exhibit T5-8
[55] Parent’s Exhibits T9-12; CC5.
[56] Parent’s Exhibits S1-5; CC3, 6-7.
[57] Parent’s Exhibit CC3.
[58] Parent’s Exhibit S1.
[59] Parent’s Exhibit CC3-5.
[60] Parent’s Exhibit S1.
[61] Parent’s Exhibits S2; CC5-6
[62] Parent’s Exhibits CC6-8; S5-6.
[63] Parent’s Exhibit CC8-10.
[64] Parent’s Exhibit S1,7.
[65] Parent’s Exhibit CC10-12.
[66] Parent’s Exhibit S15-18.
[67] Parent’s Exhibit S1, 7-8; CC13,
[68] Parent’s Exhibits S8-9,11; CC13-14.
[69] Parent’s Exhibit S9; CC14.
[70] Parent’s Exhibit CC16.
[71] Parent’s Exhibit R2-5; S2-5.
[72] Parent’s Exhibit DD10-11.
[73] Frank G., 459 F.3d at 364.
[74] See Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 [10th Cir. 2008]; Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 [1st Cir. 2001]; Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 [11th Cir. 2001]; JSK v. Hendry County Sch. Bd., 941 F.2d 1563, 1573 [11th Cir 991]. Application of a Child with a Disability, Appeal No. 11-068.
[75] (see, e.g., F.L. v. New York City Dep't of Educ., 2016 WL 3211969, at *11 [S.D.N.Y. June 8, 2016]; L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *8-*10 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100 [2d Cir. Jan. 19, 2017]; P.S. v. New York City Dep't of Educ., 2014 WL 3673603, at *13-*14 [S.D.N.Y. Jul. 24, 2014]; M.L. v. New York City Dep't of Educ., 2014 WL 1301957, at *11 [S.D.N.Y. Mar. 31, 2014]; see also Thompson R2- J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 [10th Cir. 2008]; Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 [1st Cir. 2001]; Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 [11th Cir. 2001]; JSK v. Hendry County Sch. Bd., 941 F.2d 1563, 1573 [11th Cir 1991]).
[76] Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998)), Rowley, 458 U.S.176.t 189, 553 IDELR 656 (1982). The statute ensures an "appropriate” education, "not one that provides everything that might be thought desirable by loving parents." Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted], Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003). School districts are not required to "maximize” the potential of students with disabilities. Bd. of Educ. v. Rowley, 458 U.S. 176, at 189,199,553 IDELR 656 (1982); Grim, 346 F.3d at 379, Walczak, 142 F.3d at 132.
[78] IHO 3-10.
[79] Parent’s Exhibit CC.
[80] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009)
[81] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[82] Parent’s Exhibits D and E.
[83] Parent’s Exhibit F.
[85] Parent’s Exhibits X.
[86] Parent’s Exhibits BB, DD, W, and X.