New York City Department of Education, Impartial Hearing Decision

IHRS or NYC Case Number: 588681-20230731-239828

School District: [REDACTED]

Impartial Hearing Officer: Bruce S. Olinger

Request Date/Date Complaint Filed: 9/30/22

Date of Decision: 7/31/23

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education laws. The New York City Department of Education will be referred to as District or the DOE and the parents as Parents and the child will be referred to as Student.

PROCEDURAL HISTORY

This hearing was requested by a Due Process Complaint on September 30, 2022 by Parent (Parent Ex. A). Parent claims a denial of FAPE for the 2021/22 and 2022/23 school years. Parents advised the DOE in writing on June 15, 2021 (Parent Ex. B), of the intention to enroll Student at Parent’s unilateral placement, a New York State private school, in the event that an appropriate educational placement was not provided for Student for the 2021/22 school year and then again advised the DOE in writing on July 6, 2022 (Parent Ex Q), of the intention to enroll Student at Parent’s unilateral placement, a New York State private school, in the event that an appropriate educational placement was not provided for Student for the 2022/23 school year. By this Due Process Hearing request, Parent seeks funding of tuition for the 2021/22 and 2022/23 school years.

The undersigned was appointed as Impartial Hearing Officer on December 15, 2022.

Hearings were held on numerous dates. An Interim Order on Pendency was issued by the undersigned on December 22, 2022 ordering the funding of Student’s placement at the unilateral placement pending a final determination in this matter (IHO Ex. I). During the course of the hearing, the parties moved as necessary to extend the case compliance date in this matter in order to allow for an examination of all relevant witnesses and documents, and to complete the hearing. In considering such requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delay in the resolution of the matter and the extension of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (IHO Exhibits). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).

The hearing record was closed effective July 29, 2023.

Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

FACTUAL BACKGROUND

Student was, at the beginning of the 2021/22 school year, [REDACTED] year old child known to the DOE as a child with a disability, with a DOE classification of Autism. According to an IEP dated June 23, 2021, which incorporated findings of a neuropsychological evaluation dated May 11, 2021 (not entered into evidence), Student presented with, based on the results of the Wechsler Intelligence Scale for Children – Fifth Edition (WISC-V), a Full-Scale IQ in the extremely low range (66, 1st percentile), a Verbal Comprehension Index score in the low average range (84, 14th percentile), a Fluid Reasoning Index score in the very low range (72, 3rd percentile), a Working Memory Index score in the extremely low range (67, 1st percentile), and a Processing Speed Index score in the extremely low range (56, 0.2nd percentile). Also noted was the development of depressive symptoms which possibly skewered the scores. He also presented with weakness in receptive, pragmatic and expressive language skills, demonstrating difficulty in formulating complete, semantically and grammatically correct spoken sentences of increasing length and complexity, most emphasized in storytelling, written texts, editing text and other literacy activities. He also struggled recalling and reproducing spoken sentences of increasing complexity in meaning and structure. A classroom evaluation, as noted in the IEP, indicated Student’s task avoidance of unwanted activities. At the time of this IEP Student was on a secondgrade reading level (3 years below grade level) and an upper first-grade mathematics level (4 years below grade level). His writing skills were four years below grade level, with noted significant weakness in spelling, grammar and sentence composition. He also displayed significant difficulties involving social and emotional functioning, with ongoing sadness, trouble falling asleep and awakening nightmares, frightening auditory and visual hallucinations, and experiences of bullying, all consistent with a diagnosis of major depressive disorder, single episode, severe with psychotic features. Also noted was Student’s sensory modulation disorder, as well as struggles with struggles with anxiety, distractibility, impulsiveness and dysregulation.

A prior neuropsychological evaluation (Parent Ex. D) included the additional diagnosis of Attention-Deficit/Hyperactivity Disorder and recommended Student’s continued attendance at Parent’s unilateral placement, given his progress attained there, where he received direct 1:1 instruction from educators experienced in behavior modification techniques and Applied Behavior Analysis (ABA) instruction.

The recommended placement, as contained in the June 23, 2021 IEP was a Special (D75) 8:1+1 class for math, ELA, Social Studies and Science, as well as related services of counseling (individual and group), occupational therapy (individual and group), physical therapy (individual and group), speech language therapy (individual and group) and Parent Counseling and Training.

For the 2022/23 school year, there was no IEP presented by the DOE and Parent asserts non-receipt of any placement for the 2022/23 school year.

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

Applicable Legal Standards

Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982) 1.

1. The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

The IDEA requires a school district to have an Individualized Educational Plan (IEP) in effect for each child with a disability at the beginning of each school year. See 20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.323(a); see 71 Fed. Reg. 46682 [stating that the IDEA "is clear that at the beginning of each school year, each [district] must have an IEP in effect for each child with a disability in the agency's jurisdiction. Further, An IEP has to be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(iii).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).

An IEP has to be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(iii). See also 34 C.F.R. §§300.303-300.311, 300.315; 8 N.Y.C.R.R. § 200.4(f). All reevaluations shall be conducted by a multidisciplinary team, including a specialist in the area of the student’s disability. 8 N.Y.C.R.R. § 200.4(b)(4). Children must be assessed “in all areas of suspected disability” using “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information.” 20 U.S.C. §1414(d); 34 C.F.R. § 10.

Parents should be central members of IEP teams. See 20 U.S.C. §§ 1414(a)(1)(A), 1414(c), 1414(d)(1)(B)(i); 34 C.F.R. §§300.15; 300.303. Further, regulations provide that the parent must have an adequate opportunity to participate in the development of the child’s IEP Cerra v. Pawling Cent. School District, 427 F.3d 186, 192 (2d Cir. 2005, requiring that the Parent be properly notified of the IEP meeting and that such meeting be scheduled at a “mutually agreed upon time and place.” 34 C.F.R. § 300.322.

An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 C.F.R. § 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 C.F.R. § 300.320[a][3])

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). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The 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]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).

However, in the recent decision of the United States Supreme Court, Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), argued January 11, 2017, and decided March 22, 2017, the Court held that, while Rowley declined “to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act”, 458 U. S., at 202, it nevertheless still held that “a substantive standard was “implicit in the Act”. Rowley, 458

U. S., at 193, n. 15. It similarly held that “the statement that the Act did not “guarantee any particular level of education” simply reflects the unobjectionable proposition that the IDEA cannot and does not promise “any particular [educational] outcome.” Id.at 192. Rather, the Court in Endrew held that, “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances (emphasis added), as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. . In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth.” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all”. The Court in Endrew further stated that “The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” And although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created”. Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade . . . is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982).

Once a parent consents to a district's provision of special education services, such services must be provided by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR 300.320). The school district must provide special education and related services to a student with a disability in accordance with the student's IEP and must make a good faith effort to assist the student to achieve the annual goals and, if appropriate, short-term instructional objectives or benchmarks listed in the student's IEP. See 8 NYCRR 200.4(e)(7). With regard to the implementation of a student's IEP, a denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way (T.L. v. New York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S., 2011 WL 3919040, at *13; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; see A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205 [2d Cir. 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000]). In order to show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimis failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP (see Houston Indep. Sch. Dist., 200 F.3d at 349; see also Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524–25 [3d Cir. 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho RV Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]). Accordingly, in reviewing failure to implement claims under the IDEA, courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" (A.P., 370 Fed. App'x at 205; see Van Duyn, 502 F.3d at 822 [holding that a "material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled [student] and the services required by the [student's] IEP"]; see also Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D. D.C. 2007] [holding that where a student missed a 'handful' of speech-language therapy sessions as a result of the therapist's absence or due to the student's fatigue, nevertheless, the student received consistent speech-language therapy in accordance with his IEP, and the district's failure to follow the IEP was excusable under the circumstances and did not amount to a failure to implement the student's program]).

Section 504 provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance.” 29 U.S.C. §794(a). Section 504 and the IDEA are often seen as “complementary” statutes that, to a degree, mandate parallel requirements on schools to provide special education and related services. See R.B. ex rel. L.B. v. Bd. of Educ. of City of New York, 99 F. Supp. 2d 411, 419 (S.D.N.Y. 2000) (citations omitted). The Section 504 regulations clarify the nature of the prohibited discrimination. 34 C.F.R. § 104.4(b)(ii)-(iii). In addition, the Section 504 regulations place similar and even parallel requirements on schools to provide a FAPE. See 34 C.F.R. §§ 104.33-104.37.

The burden of proof to establish that a FAPE has been offered to the Student is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if :

1. the services offered by the board of education were inadequate or inappropriate;

2. the services selected by the parents were appropriate; and

3. equitable considerations support the parents' claim. (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

Generally, in applying the three-prong standard in a tuition-reimbursement case enunciated by the Supreme Court of the United States in the Burlington and Carter decisions above-cited, it is necessary, in consideration of the issues presented, to first determine whether or not the School District offered the Student a free, appropriate public education (FAPE). The burden of establishing that it did so rests upon the District (N.Y.S. Education Law§4404). Under the guidelines established by Burlington and Carter, if a determination is made that District did in fact offer the Student a FAPE for the relevant school year, the inquiry into the Parent’s request for tuition reimbursement for the unilateral placement would cease; once a District has offered FAPE, a parent’s right to the requested relief of tuition reimbursement must be denied. Similarly, if it is determined that the District failed to establish that it provided a FAPE to the Student, then a further determination must be made as to the appropriateness of the Parent’s unilaterally-selected school. The burden of establishing such appropriateness falls upon Parent (N.Y.S. Education Law §4404). See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007), which held that “no one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction”. Similarly, Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). Once a unilateral placement has been demonstrated to meet such standards of appropriateness, a review of the equities must be undertaken to determine whether equitable considerations favor an award of relief to the parent, a necessary prerequisite for such an award.

ANALYSIS

As noted above, even in the case where a parent seeks tuition reimbursement for a unilateral placement of a child, the DOE still has the initial burden of proof to establish that a FAPE has been offered to Student for the school year(s) at issue. If such burden is not met, the parent must then prove the appropriateness of the unilateral placement. There must then be an examination of equitable factors before a final determination may be made.

The first area of examination, therefore, is whether the DOE provided a FAPE to Student for the 2021/22 and 2022/23 school years.

In that regard, addressing first the 2021/22 school year, it is noted that the DOE presented no documentary evidence whatsoever in support of its IEP recommendations for the 2021/22 school year. Additionally, no testimony was provided by any of the DOE participants of the CSE team to establish what criteria was utilized in its placement recommendation, or to establish in any other manner that the recommendations contained in the June 23, 2021 IEP were reasonably calculated to allow Student to make progress appropriate in light of his particular circumstances. While the IEP at issue cited a neuropsychological evaluation as being informative of Student’s educational deficits and needs, no testimony was provided to establish how the recommendations as contained in the June 23, 2021 IEP comported with the specific findings and recommendations of such evaluation or addressed Student’s needs as contained in such neuropsychological evaluation report. Nor was any witness testimony presented to establish that the goals as contained in the IEP were appropriate to address Student’s particular educational requirements, particularly in light of the aforementioned neuropsychological evaluation which made specific findings as to Student’s educational needs and which document the DOE specifically cited as being relied upon in the creation of the IEP at issue. Additionally, the DOE failed to present a school location notice for the 2021/22 school year to establish that a placement was provided for Student for the 2021/22 school year, and to the extent that such a placement, not entered into the hearing record, might have otherwise existed, the DOE presented no witness testimony to establish that any such assigned school could implement the IEP as written or even had a seat for Student for the 2021/22 school year. Accordingly, it is determined that the DOE has failed to provide Student a FAPE for the 2021/22 school year.

Regarding the 2022/23 school year, the DOE again presented no documentary evidence whatsoever, nor any witness testimony to establish that an educational placement had ever been created for Student for the 2022/23 school year, and Parent’s assertion that an IEP meeting failed to take place for the 2022/23 school year, and that a school placement was never provided for Student for the 2022/23 school year, is supported by the hearing record’s lack of any documentary or testimonial evidence to the contrary. Nor did the DOE claim that any placement was afforded to Student for the 2022/23 school year.

Accordingly, it is determined that the DOE has failed to provide a FAPE for Student for the 2021/22 and 2022/23 school years.

Regarding Parent’s unilateral placement for both school years at issue, testifying first for Parent was the principal of the unilateral placement, whose direct testimony appeared by affidavit dated May 18, 2023 (Parent Ex. DD), and whose responsibilities included attending meetings to develop IEPs, assisting in writing students’ annual reviews, implementing professional development among school staff, overseeing parent training, reviewing behavior intervention plans (BIPs) and functional behavioral assessments (FBAs), and supervisory responsibility for the school’s teachers, related service providers and support staff (Parent Ex. DD, par. 7). The witness described the unilateral placement as a school in which all students have IEPs, with the vast majority having autism classifications. She stated that the school offers two programs: [redacted] and [redacted], with some students attending a “Blended” class, or a combination of both practices. She described the [redacted] Program as one that builds independence in children by focusing on functional academics and life skills, using Applied Behavior Analysis (ABA), which applies behavioral practices and systematic data tracking to develop language, positive behavior, appropriate play, and social skills, and also reduces self-injurious behavior, tantrums, communication problems, and self-stimulatory behavior that impede learning. It also includes Discrete Trial Teaching (DTT) is an educational strategy based on the principles of ABA that involves breaking down skills into small sub-skills and teaching each sub-skill, intensely, sequentially. It involves repeated practices with prompting and fading of prompts to ensure the child’s success. DTT also uses reinforcement to help shape and maintain positive behaviors and skills. The witness described the [redacted] program as one that combines academics with an emphasis on social thinking and vocational or post-secondary options, with collaborative Problem Solving being the guiding philosophy, emphasizing that challenging behaviors in children occur when demands exceed their adaptive capacity or when specific skills are lacking, and with a goal of identifying and resolving underlying issues that trigger such behaviors rather than modifying behavior through rewards and punishments. The witness stated that the Blended class curriculum combines [redacted] and [redacted] practices and creates customized programs and instruction based on each student’s academic and vocational goals to ensure success, with the potential for acquiring a Regents, local, or Career Development and Occupational Studies (CDOS) commencement credential (Parent Ex. DD, par. 8-12). The witness stated that all school staff undergo continued training in ABA, Discrete Trial Teaching (DTT), collaborative problem solving, and sensory integration, with customized academic, vocational and therapy goals identified and developed to ensure success for each student (Parent Ex. DD, par. 13-15).

Regarding Student in particular, the witness testified that he has attended the unilateral placement since the 2017/18 school year, and was offered re-enrollment for the 2021/22 school year based on his having benefitted from prior school years, with additional review of his end-of-year progress reports from the prior school year [Parent Exs. E, F, G, H, I, J, K, L] (Parent Ex. DD, par. 16-18). She recounted Student’s prior placement in a DOE 12:1:1 class, where he failed to make meaningful progress, experienced regression, engaged in dangerous behaviors such as trying to stab the teachers and classmates, eloped, and presented with sadness, anxiety, distractibility, impulsivity, and inattention. She stated that Student instead required ABA with BCBA supervision, which she described as the best evidence-based approach to teaching students with autism spectrum disorders, and whose principles, which include emphasis on positive reinforcement to increase and encourage learning and social development, is the most thoroughly researched scientific method and successful therapy for autism, particularly for Student, for whom it is essential to have instruction broken into smaller parts, with prompting and reteaching, among other strategies (Parent Ex. DD, par. 20).

The witness testified that, for the 2021/22 school year, Student was enrolled in the Blended program where he received DTT, a teaching technique commonly used in ABA that involves breaking down a complex skill into smaller, discrete steps and teaching each step in a structured and repetitive manner, with the goal of helping him acquire new skills and reinforcing existing skills while providing consistent and accurate feedback on his performance. His classes focused on functional academics, life skills, social skills, and vocational skills. He also received a collaborative problem-solving team approach among teachers and support staff within the school which helped Student, with behavioral challenges, to develop cognitive skills, particularly flexibility, frustration tolerance, and problem-solving, by working collaboratively with the adults in their environment. His class was a 6:1+1 ratio class with peers that had similar cognitive and academic levels as his, with a curriculum that was individualized to meet his unique learning needs (Parent Ex. DD, par. 23-25). The witness further testified that, during the 2021/22 school year, Student made meaningful progress in numerous areas and with numerous goals, citing specific examples such as with his study skills goals using ABA methodologies, having met his reading goals using discrete trial teaching, achieving two of his three writing goals and only needing minimal assistance for the third, having achieved two of his three goals in math, and having achieved all of his social-emotional goals, using social thinking techniques and collaborative problem solving, . The witness further stated that Student made meaningful progress in his related services of speech, occupational therapy, and physical therapy (Parent Ex. DD, par. 33-39).

Concerning the 2022/23 school year, the witness testified that Student was reenrolled by Parent, again in the Blended Program at the unilateral placement, in the absence of an IEP or public school placement from the DOE, where he again made meaningful progress. He was placed in the extended school year program due to his significant regression during holidays and breaks and therefore required a 12-month program. The witness stated that Student’s program during the 2022/23 school year included academic subjects of math, ELA, science, and social studies, plus gym, art, social thinking, class meeting and activities of daily living (“ADL”), during which time he learned such skills as brushing his teeth, washing his hands, eating/feeding and dressing independently. He also received all of his related services of occupational therapy, physical therapy, counseling and speech (Parent Ex. DD, par. 41-44). The witness attributed Student’s meaningful academic, social, and emotional progress during the 2022/23 school year to his program steeped in the principles of ABA and collaborative problem solving, which specifically broke the instruction into small parts, with repetition, prompting, refocusing, one-to-one support, and collaboration among all professionals and paraprofessionals on his team using the same language to support social-emotional development (Parent Ex. DD, par. 45). His progress included the continuation of his forming meaningful friendships with his peers, which he was unable to do prior to entering the unilateral placement, attaining an upper third-grade level in decoding and reading fluency and a third-grade level in reading comprehension, helped by the receipt of repetition, refocusing and prompting, improvement in his writing and understanding of written material, attaining an upper second-grade level in math, a non-preferred subject, where Student responded well to work being broken down, one-to-one attention, re-teaching, and maintenance of skill development, and progress in the social/emotional realm, having utilized social thinking techniques and advocacy by expressing his thoughts and feelings using assertive communication (Parent Ex. DD, par. 47-51). The witness concluded her direct testimony by stating that Student required ABA methodologies and collaborative problem solving to succeed academically, socially, emotionally, and behaviorally, all of which was provided by the unilateral placement for the school years at issue, together with specially designed instruction that he required to meet his unique needs, where he benefitted from the supportive and therapeutic environment provided by the unilateral placement (Parent Ex. DD, par. 52).

On cross examination, the witness stated that students are placed in particular classrooms based on age, academic abilities, verbal abilities and socialization, with evaluations and assessments utilized to ensure appropriate peer groupings (Tr. p. 79).

Parent testified as to Student’s kindergarten placement in a 12:1+1 class, where she stated he experienced regression, hiding underneath the table, being aggressive and acting dangerously, and failing to socialize with peers (Tr. p. 95). Parent recounted having taken Student for a neuropsychological evaluation following his difficulties in kindergarten, which indicated Student’s low scoring in numerous domains and being advised that he would benefit from ABA instruction and Discrete Trials (Tr. p. 96-97). Parent then stated that she had the Student reevaluated the following year after he had attended the unilateral placement and that the neuropsychologist had noticed a dramatic improvement in Student who, while still below age-appropriate development, nevertheless presented with greater cooperation and attending, higher scoring on his testing and improvements in his behavior (Tr. p. 98). Parent stated that after a somewhat difficult two-month transition period upon entering the unilateral placement, Student’s behavior showed significant improvement, helped by the reward system in place, which improved behavior extended to the home, where Student willingly did his homework as opposed to his previous refusals accompanied by crying. Student also would speak about his school day at home and began to have recall of things previously lost to regression, such as shapes and numbers (Tr.

p. 99-102). Parent expressed her opinion that Student made academic, social, behavioral and emotional progress at the unilateral placement during both the 2021/22 and 2022/23 school years and that the unilateral placement was an appropriate educational placement for Student for both such school years, and that if he were not attending there he would regress (Tr. p. 103-106).

Documentary evidence, including Student’s Progress Report for Goals and Objectives (Parent Ex. L), Academic Annual Review February (Parent Ex. R), Functional Behavior Assessment and Behavior Action Plan (Parent Ex. S, T), Speech/Language Therapy Annual Review (Parent Ex. U), Social Emotional Annual Review (Parent Ex. V), Physical Therapy Annual Review (Parent Ex. W), Occupational Therapy Annual Review (Parent Ex. X) and Unilateral Placement Progress Report (Parent Ex. Y) all establish an educational curriculum specifically designed to address Student’s academic, behavior, social/emotional, and language deficits and, in the areas of physical and occupational therapy, to address Student’s deficits in the areas of muscle strength, balance, coordination, motor planning, ADL skills, executive functioning, visual motor skills, and visual perceptual skills, all consistent with the testimony of Parent’s witnesses and, as more fully set forth in the hearing record, need not be reiterated here.

The standards for determining whether a private school placement is “appropriate” under the IDEA closely resemble, but do not mirror, the standards for assessing the adequacy and appropriateness of the proposed public placement. The Second Circuit has explained that “subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.” Gagliardo v. Arlington Central Sch. Dist., 489 F. 3d 105, 112 (2d Cir. 2007) (citation omitted). “The issue turns on whether a placement -- public or private -- is reasonably calculated to enable the child to receive educational benefits.” Id. (citation omitted). “A private placement meeting this standard is one that is likely to produce progress, not regression.” Id. (citation omitted). “Nevertheless, parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education,” and “[a]n appropriate private placement need not meet state education standards or requirements.” Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006) (citation omitted). Moreover, “a private placement need not provide certified special education teachers or an IEP for the disabled student,” and “parents may not be subject to the same mainstreaming requirements as a school board.” Id. (citation omitted).

Therefore, 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. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 102 (2d Cir. 2007, and that “the test for the parent’s private placement is that it is appropriate, not that it is perfect.” See Warren G. ex rel. Tom G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999); Board of Educ. v. Rowley, 458 U.S. 176 at 207 (1982). The hearing record amply demonstrates Parent having met her burden under Prong II.

With regard to the equities, no claim of parental non-cooperation was asserted by the DOE for the 2021/22 school year, and the hearing record is devoid of any such evidence. Regarding the 2022/23 school year, the DOE asserts that equity considerations bar full tuition funding for such school year on the grounds that Parent’s notice to the DOE of her intention to enroll Student at the unilateral placement, dated July 6, 2022, was provided to the DOE in less than the required 10-day notice-requirement period for a private school placement that began July 11, 2022.

Tuition funding/reimbursement may be reduced or denied under the IDEA if parents fail to provide the school district with timely notice of their intent to place their child in a private school at public expense (see 20 U.S.C. § 1412[a][10][C][iii], see also 34 C.F.R. § 300.403[d]). Pursuant to the IDEA, parents may provide notice at the most recent CSE meeting prior to their removal of the child from public school, or by written notice ten business days before such removal (see 20 U.S.C. § 1412[a][10][C][iii][I]). Under this statutory provision, a reduction or denial in tuition reimbursement is discretionary (Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 01-054; Application of a Child with a Disability, Appeal No. 00-027).

The purpose of written notice is to advise the DOE of the disagreement with an IEP recommendation so that the DOE has a reasonable opportunity to address the parental concerns and to remedy them. However, in the absence of a public school placement available and offered to Parent, as was the case here for the 2022/23 school year, parental notice to the DOE is not required. See In M.G. v. District of Columbia, 246 F. Supp. 3d 1, 69 IDELR 246 (D.D.C. 2017), which held that giving a ten-day notice of unilateral placement was not required in the absence of a public school placement. Nor did the DOE convene an IEP meeting for Student upon receipt of such notification. Thus, as the DOE failed to even hold an IEP meeting for Student for the 2022/23 school year, and failed to offer Student a public school placement for the 2022/23 school year, leaving Parent with no other choice but to parentally place Student at his private school, the equities are found to favor the Parent for the 2022/23 school year.

The tuition for the 202/21 school year was $103,000.00 (Parent Ex. N); as of the date of this Decision, Parent has not made any payment (Parent Ex. O). The tuition for the 2022/23 school year was $110,500.00 (Parent Ex. AA); as of the date of this Decision, Parent has not made any payment (Parent Ex. BB). Parent testified that she is unable to afford such tuition for either school year, and remains financially responsible (Parent Ex. N, AA; Tr. p. 116).

A parent has standing to pursue a claim for direct funding of tuition against the DOE when payment of tuition has been deferred pending the outcome of a Due Process Hearing. E.M. v. N.Y.C. Dep't of Educ.,758 F.3d 442 (2d Cir. 2014). See also Connor v. Mills, 34 F.Supp. 2d 795 at 805-806, 132 Ed. Law Rep. 767 (N.D.N.Y), which provides, “Once the Burlington prerequisites relative to a non-approved private school are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of the private placement immediately.” Accordingly, Parent is hereby awarded funding of tuition for the 2021/22 and 2022/23 school years, subject to the directives below.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS

HEREBY ORDERED:

1. The DOE is determined to have denied a FAPE for Student for the 2021/22 and 2022/23 school years, with Student’s 12-month school year unilateral placement determined to have constituted the appropriate educational placement for Student for both such school years.

2. The DOE shall fund Student’s attendance at the unilateral placement for the 12-month 2021/22 school year in the amount of $103,000.00, and fund Student’s attendance at the 12-month unilateral placement for the 2022/23 school year in the amount of $110,500.00, upon Parent furnishing the DOE copies of the 2021/22 and 2022/23 Enrollment Contracts, tuition affidavits verifying the amount owed for the 2021/22 and 2022/23 school years, and proof of Student’s attendance at the unilateral placement for both school years.

3. The DOE shall be credited with payments, if any, made towards Student’s tuition for the 2022/23 school year pursuant to the aforementioned Interim Order on Pendency dated December 22, 2022.

4. The DOE shall comply in all respects with this Decision and Order.

Dated: July 31, 2023

BRUCE S. OLINGER, ESQ.

Impartial Hearing Officer

APPEAL RIGHTS

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 the 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

PARENT

A. Due Process Complaint, dated September 26,2022 (8 pages)

B. Ten Day Notice, dated June 15, 2021 (2 pages)

C. Individualized Education Program, dated June 23, 2021 (38 pages)

D. Neuropsychological-Dr. [redacted], dated April 9, 2018 (10 pages)

E. Academic Annual Review, dated June 17, 2021 (6 pages)

F. Functional Behavior Assessment (FBA), dated June 16, 2021 (3 pages)

G. Behavior Intervention Plan (BIP), dated June 16, 2021 (4 pages)

H. Social Emotional Annual Review, dated June 8, 2021 (3 pages)

I. Speech/Language Therapy Annual Review, dated June 15, 2021 (4 pages)

J. Physical Therapy Annual Review, dated June 17, 2021 (3 pages)

K. Occupational Therapy Annual Review, dated June 6, 2021 (4 pages)

L. Progress Report for Goals and Objectives, 2021-2022, dated June 22, 2022 (10 pages)

M. Student Daily Attendance 2021-22 School Year, dated September 28, 2022 (1 page)

N. Parental Guarantee of Tuition, 2021-22, dated June 23, 2021 (2 pages)

O. Parent’s Tuition Affidavit, 2021-22, dated January 19, 2022 (1 page)

P. Summer Student Schedule, 2022, undated (1 page)

Q. Ten Day Notice, dated July 6, 2022 (2 pages)

R. Academic Annual Review, dated February 27, 2023 (4 pages)

S. Functional Behavior Assessment (FBA), dated April 3, 2023 (4 pages)

T. Action Plan, dated April 3, 2023 (3 pages)

U. Speech/Language Therapy Annual Review, dated November 7, 2022 (3 pages)

V. Social Emotional Annual Review, dated March 20, 2023 (3 pages)

W. Physical Therapy Annual Review, dated March 30, 2023 (5 pages)

X. Occupational Therapy Annual Review, dated February 27, 2023 (3 pages)

Y. [redacted] Progress Report Q3, dated April 4, 2023 (24 pages)

Z. Student Daily Attendance 2022-23 School Year, dated May 11, 2023 (1 page)

AA. Parental Guarantee of Tuition 2022-23, dated July 6, 2022 (2 pages)

BB. Parent’s Tuition Affidavit 2022-23, dated January 4, 2023 (1 page)

CC. Student Schedule 2022-23 (1 page)

DD. Affidavit Testimony-[redacted], dated May 18, 2023 (14 pages)

DEPARTMENT OF EDUCATION

NONE

IMPARTIAL HEARING OFFICER

I. Pendency Order, dated 12/22/22 (4 pages)

II. Extension Orders, various dates (7 pages)