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Case Number: 589398 – NYC: 240448
FINDINGS OF FACT AND DECISION
Student’s Name: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parent”)
Request Date/Date File: 10/14/2022
Impartial Hearing Officer: Joy A. Thompson, Esq.
Date(s) of Hearing: 2/24/2023
Compliance Date: 4/27/2023
Date of Decision: 4/27/2023
Date of Distribution: 4/27/2023
NAMES AND TITLES OF PERSONS WHO APPEARED ON 2/24/2023
For the Student:
Name Title
[REDACTED] Parent Counsel
[REDACTED] Parent
[REDACTED] Spanish-Language Interpreter
For the Department of Education:
Name Title
[REDACTED] District Representative
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on the Parent’s Due Process Complaint (“DPC") filed on 10/14/2022 (Exhibit P-A) [1]. I was appointed to serve as IHO on 1/11/2023. A Pre-Hearing Conference was held on 1/25/2023. A Status Conference was held on 1/31/2023. A Hearing on the Merits was held on 2/24/2023. At the Hearing, the District was represented by [REDACTED] (“District Representative”), and the Parent was represented by [REDACTED] (“Parent Counsel”).
The District Representative offered for submission into evidence 12 items. The Parent Counsel objected to the District’s proposed exhibits on the grounds that all of the disclosures were untimely, at least one of the proposed exhibits was irrelevant to the school year at issue, and several of the items were duplicative of the Parent’s proposed exhibits (Transcript 13-14). I overruled the Parent Counsel’s objections on the record (Tr. 20-23) for the reasons explained in the analysis of this decision, and admitted the following District exhibits: D-1, D-3, D-7, D-8, D-9, D-10, and D-11. I admitted the Parent’s Exhibits P-A through P-U2 into evidence without objection. (See Appendix B.)
The District Representative and Parent Counsel made opening statements. The District did not present any witness testimony. The Parent Counsel provided affidavit testimony from [REDACTED], the Student’s parent, (“Parent”) (Ex. P-S); [REDACTED], principal and executive director (“Principal”) of the [REDACTED] (“Private School”) (Ex. P-T); and [REDACTED], behavior analyst (“Behavior Analyst”) with [REDACTED] (“Psychologists”)
2 Upon review of the Parent’s exhibits after the hearing, I noticed that the documents were inaccurately labeled and contained at least one document that was not admitted into evidence on 2/24/2023. I alerted Parent Counsel to the discrepancies in an e-mail dated 3/28/2023 (Ex. IHO-II). The Parent Counsel provided corrected exhibits via e-mail on 3/29/2023 (id.). (Ex. P-U). The District Representative did not cross-examine any of the Parent’s witnesses and waived making a closing statement. The Parent Counsel made a closing statement. [REDACTED], a Spanish-language interpreter, translated into Spanish the parties’ opening and closing statements for the Parent, who attended the hearing.
JURISDICTION
The due process hearing was held and this decision is rendered pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq.; and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND
The Student is an [REDACTED]-year-old child, who is classified by the District as a student with Autism. In the DPC, the Parent alleges that the District failed to provide the Student with free and appropriate public education (“FAPE”) (Ex. P-A1). Specifically, the Parent alleges that on 11/8/2021, the Committee on Special Education (“CSE”) met to create an Individualized Education Program (“IEP”) for the Student. However, the 11/8/2021 IEP was provided to the Spanish-speaking Parent in English only. The District recommended a public school; however, the Parent did not receive a school location letter, and no public school reached out to the Parent for the 2022-2023 school year. The Parent further alleges that the District failed to develop an appropriate program for the Student, despite having 2021 Independent Educational Evaluation (“IEE”) reports that provided the District with the necessary evaluative data to develop an appropriate program. The District also failed to recommend any Applied Behavior Analysis (“ABA”) interventions or a specialized program to provide needed behavioral supports for the Student, and the District decreased Speech-Language Therapy services from three (3) times per week on the March 2020 IEP to two (2) times per week on the11/8/2021 IEP. In June 2022, the Parent submitted a letter to the District objecting to the recommendations of the 11/8/2021 IEP and informing the District that the Parent would be re-enrolling the Student in the Private School for the 2022-2023 school year. Accordingly, the Parent are seeking a declaratory finding that the District failed to provide the Student with a FAPE, and an order directing the District to fund the Student’s Private School tuition for the 2022-2023 school year; fund 10 hours per week of home-based ABA therapy services for the Student; translate into Spanish all educational documents, including meeting invitations, IEPs, evaluation reports, progress reports, notices, and other educational documents pertaining to the Student; provide the Parent with all Spanish-translated documents to be used in IEP meetings at least five (5) days in advance of the IEP meetings; and provide the Parent with all documents, such as finalized IEPs and Prior Written Notices, translated into Spanish no later than five (5) days following the IEP meetings. [3]
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Five (5) Business Day Disclosure Rule
Pursuant to 8 NYCRR § 200.5(j)(3)(xii), “[e]ach party shall have the right to prohibit the introduction of any evidence the substance of which has not been disclosed to such party at least five business days before the hearing.” See also 34 C.F.R. § 300.512(a)(3) (Any party to a due process hearing has the right to “[p]rohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five business days before the hearing”). Further, at least five business days in advance of a hearing, each party shall disclose evaluations and recommendations they intend to use at the hearing (8 NYCRR § 200.5[j][3][xii][a]). An IHO may bar the evaluation and recommendations if the other party does not consent to the late disclosure (id.; 34 C.F.R. § 300.512[b]).
Over the years, recognizing an IHO’s discretion, courts have elected not to strictly enforce the five-day disclosure rule. IHOs have considered factors such as “the conditions resulting in the untimely disclosure, the need for a minimally adequate record upon which to base a decision, the effect upon the parties’ respective right to due process, and the effect upon the timely, efficient and fair conduct of the proceedings” (In re: Student with a Disability, 121 LRP 24164 [June 1, 2021], citing New Milford Bd. Of Educ. v. C.R., 431 Fed. App’x 157, 161 [3d Cir. 2011]; L.J. v. Audobon Bd. Of Educ., 2008 WL 4276908 [D.N.J. 2008], aff’d 373 Fed. App’x 294 [3d Cir. 2010]; Pachl v. Sch. Bd. of Indep. Sch. Dist. No. 11, 2005 WL 428587 [D. Minn. 2005]; Letter to Steinke, 18 IDELR 739 [OSEP 1992]; Dell v. Bd. of Educ., 32 F.3d 1053, 1061 [7th Cir. 1994] [noting the objective of prompt resolution of disputes]).
Here, I clearly communicated to both parties at the 1/25/2023 Pre-Hearing Conference and 1/31/2023 Status Conference and in my 2/13/2023 e-mail to both parties that disclosures were due on 2/16/2023. The Parent submitted disclosures well before the due date. (See Ex. IHOI.) The District submitted disclosures on 2/17/2023, one day after the 2/16/2023 due date (id.). When asked to explain the late disclosure, the District Representative stated that an attempt to e-mail the documents on 2/16/2023 failed because the file was too large (Tr. 16-17). However, when asked to provide proof of the attempt to e-mail the disclosures on 2/16/2023, the District Representative stated that a copy of the failed e-mail could not be provided because it had been deleted (Tr. 18). The District Representative consented to withdrawing the duplicative exhibits and the exhibit described as being outside of the scope of the relevant school year (Tr. 16). The District Representative argued that the late disclosure of the rest of the exhibits did not cause any prejudice to the Parent (id.).
Upon considering the factors used to relax the disclosure rule, I find that the need for a minimally adequate record upon which to base a decision applies here. As I stated on the record (Tr. 22-23), the District’s remaining disclosures appear on their face to be relevant to the issues in this matter. The documents consist of an Individualized Education Plan (“IEP”) and evaluations pertaining to the school year in question. I am also mindful that the District did not present witnesses (Tr. 35) or opt to cross-examine the Parent’s witnesses in this case (Tr. 36). The District’s documents might bear on the Parent’s burden regarding the appropriateness of the unilateral placement and the equities. Therefore, relaxing the disclosure rule to enable the record to be complete and allow me the opportunity to fully consider the weight of the evidence is appropriate.
Regarding the effect on the parties’ respective right to due process, I find that due process is still served by allowing the District’s untimely disclosed documents to be admitted into evidence. As the District Representative noted (Tr. 16), the disputed documents likely would have been already received by the Parent.[4] Further, the Parent Counsel conceded that the Parent was not objecting to the District’s remaining documents on the ground of relevance (Tr. 21). Therefore, there is no demonstrated prejudice to the Parent. (See In re: Student with a Disability, Appeal No. 22-105 [NY SRO Oct. 3, 2022] [stating that “[o]ther than the technical defect, the parent has failed to articulate sufficient prejudice as a result of the IHO's discretionary determination to allow the district's documents into the hearing record as evidence” and citing Jusino v. NY City Dept., 2016 US Dist LEXIS 203006, at 17-18 [EDNY July 14, 2016] ["Like all procedural rules and deadlines, those set in this sort of administrative proceeding were set to ensure a fair and expedited process, not a summary 'gotcha' game. No prejudice from the failure to notice . . . testimony five days before the hearing (as opposed to the four days' notice given before her testimony) was articulated"]). Accordingly, Exhibits D-1, D-3, D-7, D-8, D-9, D-10, and D-11 were admitted into evidence, and having reviewed all of the evidence, I will give these documents the weight they deserve (Tr. 22).
I also note that in the DPC, the Parent asks for a declaratory finding that the District failed to provide the Student a FAPE for both the 2021-2022 and 2022-2023 school years (Ex. P-A4-A7). However, the evidence in the record demonstrates that a previous IHO determined that the District failed to provide a FAPE for the 2021-2022 school year (Exs. P-A4 and P-S2; Tr. 31). So, further discussion of the 2021-2022 school year here is unnecessary. Applicable Standards
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a 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 (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that an “IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]).
While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an IHO may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). 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 adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 388).
Additionally, the statute ensures only 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). 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). Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement’” (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances”]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (“LRE”) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).
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]), 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]). The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP “must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives” (Endrew F., 580 U.S. at 402).
A school district may be required to reimburse parents for their expenditures for private educational services obtained for a student by the parents, if the services offered by the school district were inadequate or inappropriate, the services selected by the parents were appropriate, and 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).
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 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 (NYS Educ. Law § 4404(1)(c)).
FAPE
Here, the District Representative conceded that the District failed to provide the Student with a FAPE for the 2022-2023 school year (Tr. 10-11). While the District submitted documents into the record (see Appendix B), a review of same offers no explanation as to how the CSE made its recommendations, how the IEP appropriately describes the Student, or whether the IEP is meaningfully calculated to confer educational benefit. The District also failed to present any witnesses who may have been able to provide such an explanation. In short, the District declined to “offer a cogent and responsive explanation for [its] decisions” in creating that IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child” (Endrew F., 580 US 386, 391).
Moreover, the weight of the evidence supports the conclusion that the District failed to offer the Student an educational program reasonably calculated to offer the Student a FAPE for the 2022-23 school year. It is uncontested that the District failed to contact the Parent to schedule an annual IEP meeting prior to the 2022-2023 school year (Ex. P-S2). The Student’s school year began in July 2022, because according to the 11/8/2021 IEP, the student is eligible to receive services for 12 months, i.e. July and August (Ex. P-B33). In a letter to the District dated 6/17/2022, the Parent objected to the recommendations of the 11/8/2021 IEP (Ex. P-F) and noted that the District failed to recommend a placement for the Student prior to the start of the 2022-2023 school year. After the Parent finally received a school location letter, dated 6/27/2022 (Ex. P-G), the Parent tried to contact the recommended public school on multiple occasions to learn more about the public school’s program. However, the Parent received no response (Ex. P-S2). So, the Parent re-enrolled the Student in the Private School for the 2022-2023 school year. The District also failed to timely hold an annual IEP meeting for the 2022-2023 school year. It is well settled that “[a]t the beginning of each school year, each public agency must have in effect, for each child with a disability within its jurisdiction, an IEP” (34 CFR § 300.32[a], 8 NYCRR 200.4[e][1][ii]). Here, the Student’s annual IEP meeting did not take place until 10/11/2022, approximately three (3) months after the Student began the 2022-2023 school year (Ex. P-S2; see also the 10/11/2022 IEP [Ex. P-C]).
Meanwhile, the District impeded the Parent’s meaningful participation in the Student’s educational planning. The Parent’s native and primary language is Spanish, and the Parent has limited ability to read and write in English (Ex. P-S1). However, despite the Parent’s repeated requests that the District provide documents translated into Spanish, the District failed to do so (Ex. P-S2-S3). It is well settled that a district must take whatever action is necessary to ensure that the parent understands the proceedings of the IEP team meeting, including arranging accommodations for whose native language is other than English (34 CFR 300.322 [e]). Here, by not providing documents translated into Spanish, the District failed to take necessary actions to ensure the Parent’s meaningful participation in the decision-making process regarding the provision of a FAPE to the Student (See 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245). Therefore, I find that the District failed to offer the Student FAPE for the 2022-2023 school year. Unilateral Placement
A private school placement must be “proper under the Act” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offers an educational program that meets the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by a school district in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]).
Here, documentary evidence and witness testimony demonstrate that the Private School developed a program for the Student that was appropriate and “specifically designed to meet the unique needs” of the Student (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). The Student is diagnosed with, among other things, Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder, Post-Traumatic Stress Disorder, and Learning Disorders (Exs. P-A2 and P-C4 and Tr. 31). The Student presents with “significant deficits in many areas, including but not limited to academics, sensory skills, fine motor skills, speech language skills, social-emotional skills, behaviors” (Tr. 31). The Student’s behavioral challenges are well document in the 11/8/2021 IEP: “At school, [the Student] can lose focus and needs redirection. . . . [The Student also] suffers from anxiety and PTSD. . . . At home the parent reports that [the Student] can display some aggressive behaviors and is hard to calm down and control. [The Student] has previously attempted to take [the Student’s own] life and was hospitalized” (Ex. P-B3]). The 10/11/2022 IEP states that the Student “can be aggressive with new people” (Ex. P-C7). The Student “has been known to push and demonstrate otherwise physically or verbally aggressive behavior. [The Student] has a history of challenging behavior” (id.). The 10/11/2022 IEP also notes that the Private School “reported that [the Student] does not demonstrate this behavior at school” (id.)
According to the Student’s Independent Applied Behavior Analysis Skills Assessment Report (“ABA Report”) and Independent Functional Behavior Assessment and Behavior Plan (“FBA and BIP”), both dated 2/22/2021 and conducted by the Behavior Analyst, the Student’s previous placement at a public school was inappropriate (See Exs. P-D and P-C). The Behavior Analyst testified via affidavit that while in public school, the Student’s behaviors were “chronically mismanaged” (Ex. P-U1). “As a result of my evaluations, I recommended, among other things, a specialized school program that utilizes ABA, as well as 10 hours per week of home-based ABA therapy . . . to ensure extinction of [the Student’s] interfering behaviors and to contribute to . . . [the Student’s] educational progress (Ex. P-U2).
The Private School Principal’s testimony and the Parent’s documentation demonstrate that the Private School and its instructors are qualified to educate children such as the Student (Exs. P-H and P-O). The Private School’s Principal testified via affidavit that the Private School “is a small nonpublic school for children ages 7 to 21 with autism and other learning needs” (Ex. P-T2; see also Ex. P-H, the description of the Private School). The Private School “incorporates the DIR Floortime model and ABA therapy into the school day, which are specifically designed to meet the needs of students with Autism” (Ex. P-T2.). The Principal is familiar with the Student, who has been attending the Private School since 2021 (Ex. P-T3). The Principal stated that Student “continues to be a good fit for our mode of education and as a peer with students we serve” (id.).
The evidence in the record shows that as a result of the Private School’s program and home-based ABA therapy, the Student has made progress academically, behaviorally, socially, and emotionally. At the Private School, the Student’s class comprises “six students, a licensed special education teacher and two classroom assistants” (Ex. P-T4). The Student receives Counseling twice per week for 30 minutes, Occupational Therapy twice per week for 30 minutes (individual), and Speech-Language Therapy four times per week, in a combination of individual and a group (Ex. P-T3). These services are consistent with the related services recommended in the 11/8/2021 IEP and 10/11/2022 IEP (Exs. P-B31-B32 and P-C32-C33). The Private School’s academic curriculum is tailored to meet the Student’s needs (Ex. P-T4-T5). The Parent testified that the Student is now performing academic tasks that the Student was unable to perform at the beginning of the school year, i.e. reading and writing letters and numbers, solving mathematical problems, and using three- to four-word sentences (Ex. P-S3). The Student’s Classroom, Speech, Counseling, and Occupational Therapy Progress Reports, dated October 2022, demonstrate that the Private School’s 12-month program is helping the Student make meaningful gains academically, socially, and emotionally (See Exs. P-K, P-L, P-M, and P-N).
The evidence in the record further demonstrates that the Student’s behavior has improved since the start of the 2022-2023 school year. The Parent testified that the Student “has improved [the] ability to cope more when angry or frustrated” (Ex. P-S3). The Student also has “gained skills in coping mechanisms, such as telling someone that [the Student] needs in order to calm down” (id.). The Behavior Analyst testified that through the ABA home-based therapy, the Student is increasing the “ability to follow simple verbal directions . . . remaining seated and on task for longer periods of time, increasing independent and interactive play skills, demonstrating appropriate behaviors” (Ex. P-U2). The Student’s ability to perform daily life skills, such as showering, eating, dressing, etc. also has improved (id.). (See also the Behavior Analyst’s Progress Report, Ex. P-R). The Behavior Analyst recommends the continuation of the 10 hours per week of at-home ABA services to reinforce the progress the Student is making at the Private School (Exs. P-R8 and P-U3).
The weight of the evidence demonstrates that the Parent’s placement of the Student at the Private School, along with the at-home ABA based therapy services, was proper.
Equitable Considerations
The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on the parents’ cooperation with the CSE. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]).
With respect to equitable considerations, the IDEA provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412 [a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L. v Scarsdale Union Free Sch. Dist., 744 F3d 826, 840 [2d Cir 2014] [noting that “[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA”]).
Reimbursement may also be reduced or denied if parents do not provide notice of the unilateral placement at the most recent CSE meeting prior to their removal of the student from public school, or by written notice 10 business days before such removal. Parents must inform the District "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 14129[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v Bd. of Educ., 459 F3d 356, 376 [2d Cir 2006]; Voluntown, 226 F.3d at 68). Parents of students enrolled in private school are not exempted from 10-day notice requirements (S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-63 [S.D.N.Y. 2009]).
Here, the District did not raise any issues that would limit or preclude tuition reimbursement. In fact, it did not oppose tuition reimbursement on equitable grounds. Meanwhile, the documentary evidence and testimony make clear that the Parent provided the District with timely written notice of the unilateral placement of the Student at the Private School (Ex. P-B). The documentary evidence establishes that the Parent is responsible for the Student’s Private School tuition for the 2022-2023 school year in the amount of $112,000 (Exs. P-J and P-S3). It is uncontested that the Parent cannot afford to pay the tuition (Ex. P-S3). Accordingly, I find that the District should fund the Student’s Private School tuition for the 2022-2023 school year.
Related Services
Under the IDEA, courts can “grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act” (Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 [2d Cir. 2015] [citation omitted]). See also Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993), citing Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 374 (1985) (“‘[E]quitable considerations are relevant in fashioning relief,’ and the court enjoys ‘broad discretion’ in doing so”). Although an award of damages is not available under the IDEA (see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 [2d Cir. 2002]), “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” (Doe v. East Lyme, 790 F.3d at 454).
With regard to the Parent’s request for funding for related services, specifically 10 hours per week of home-based ABA therapy, the weight of the evidence in the record demonstrates that such services are appropriate to meet the Student’s unique needs. The 4/23/2021 Neuropsychological Evaluation refers to the 2/22/2021 ABA Report (Ex. D-3-22) and recommends that “the behavior intervention plan set forth by the most recent ABA skills evaluation be implemented” (Ex. D-3-27-28). Both the 11/8/2021 IEP and 10/11/2022 IEP refer to the 4/23/2021 Neuropsychological Evaluation (Exs. P-B1 and P-C1). However, neither IEP recommends ABA therapy.
The Student has a history of behavioral challenges and receiving home-based services. For example, the 4/23/2021 Neuropsychological Evaluation states that the Student becomes “aggressive when triggered” (Ex. D-3-6). In the past, the Student’s home attendants had to be replaced because the Student “was violent (biting, kicking, etc.)” (Ex. D-3-5). A previous home-based occupational therapist described the Student as “paranoid,” “screaming,” “does not like to be touched and demands a great deal of attention” (Ex. D-3-7).
The Behavior Analyst, who conducted the Student’s 2/22/2021 ABA Report, FBA, and BIP, testified via affidavit that the Student “presents with a number of behavioral challenges that impeded . . . . learning every single day” (Ex. P-U2). The Behavior Analyst recommended that the Student continue to receive 10 hours per week of home-based ABA therapy to maintain and reinforce the skills the Student is learning in the Private School (Ex. P-U2- U3). The Behavior Analyst is qualified and certified in providing ABA services, and has been providing the Student with such home-based ABA therapy since 2021 (Exs. P-P and P-T2). According to the Psychologists’ Rate Sheet, the $330-per-hour cost for individual ABA therapy reflects “the market rate for the New York City area” (Ex. P-Q). The District Representative did not raise any issues that would limit or preclude funding for at-home ABA therapy for 10 hours per week. Accordingly, for the 2022-2023 school year, I find that the District should fund the cost of at-home ABA therapy for 10 hours per week at the New York City market rate.
Other Relief
Other than the relief set out in the Order below, no basis and/or evidence in the record supports any additional relief.
ORDER
In light of the above findings of fact, IT IS HEREBY ORDERED THAT: 1) The District shall fund the Student’s 2022-2023 tuition at the Private School in an amount not to exceed $112,000; 2) The District shall fund the cost of 10 hours per week of home-based ABA therapy services for the Student by a provider of the Parent’s choosing at a market rate not to exceed $330 per hour for the 2022-2023 school year; 3) The District’s Implementation Unit shall authorize any payments for tuition and services within 15 days of the date of this Order and issue payment to the Private School and/or provider within 30 days of receipt of the invoice and/or proof of payment; 4) The District shall translate into Spanish all of the Student’s prior special educational records, including meeting invitations, IEPs, evaluation reports, progress reports, notices, and any other documents considered by the CSE when making educational recommendations; 5) The District shall provide the Parent with Spanish-translated copies of all documents to be used in IEP meetings at least five (5) days in advance of such meetings; and
6) The District shall provide the Parent with all documents, such as finalized IEPs and Prior Written Notices, translated into Spanish no later than five (5) days following the IEP meetings.
SO ORDERED.
Dated: 4/27/2023
Joy A. Thompson
Joy A. Thompson, Esq.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
ENTERED INTO THE RECORD
DISTRICT EVIDENCE
1. Individual Education Plan 6/7/2021 25 pages DOE
3. Neuropsychological Evaluation 4/23/2021 29 pages DOE
7. Bilingual Speech and Language Evaluation 3/6/2021 18 pages DOE
8. Physical Therapy Evaluation 3/12/2021 14 pages DOE
9. Assistive Technology Evaluation 4/2/2021 12 pages DOE
10. Occupational Therapy Evaluation 3/12/2021 24 pages DOE
11. Feeding and Swallowing Evaluation 8/6/2021 10 pages DOE
PARENT EVIDENCE
A. Parent’s Hearing Request 10/13/22 8 pages
B. Individualized Education Program 11/08/21 42 pages
C. Individualized Education Program Independent Applied Behavior Analysis (ABA) Skills Assessment 02/22/21 20
D. Report by [REDACTED] Independent Functional Behavior Assessment and Behavior 02/22/21 20 E Intervention Plan by [REDACTED] 10/11/22 40 pages
F. Ten-Day Notice Letter with Delivery Receipts 06/17/22 5 pages
G. Prior Written Notice and School Location Letter 06/27/22 14 pages
H. [REDACTED] Program Description Undated 1 page
I. [REDACTED] Enrollment Contract 03/18/22 2 pages
J. [REDACTED] Tuition Affidavit 07/21/22 1 page
K. [REDACTED] Classroom Progress Report Oct. 2022 4 pages
L. [REDACTED] Speech Progress Report Oct. 2022 6 pages
M. [REDACTED] Counseling Progress Report 10/12/22 2 pages
N. [REDACTED] Occupational Therapy Progress Report 10/12/22 4 pages
O. [REDACTED] Resume Undated 2 pages
P. [REDACTED] Resume Undated 2 pages
Q. [REDACTED] Group Rate Sheet 01/01/23 2023 2 pages
R. [REDACTED] Progress Report by [REDACTED] 01/27/23 8 pages
S. [REDACTED] Affidavit 02/02/23 4 pages
T. [REDACTED] Affidavit 02/09/23 6 pages
U. [REDACTED] Affidavit 02/09/23 6 pages
IHO EXHIBITS
I. E-mail Correspondence regarding District’s Disclosures 3/28/2023 – 2/17/2023 12 pages
II. E-mail Correspondence regarding Parents’ Disclosures 3/30/2023 15 pages
Footnotes
[1] Exhibits shall be referred to as follows: “P” for the Parent’s exhibits; “D” for District’s exhibits; and “IHO” for IHO’s exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.
[3] In the DPC, the Parent also requested “transportation and any other costs and expenses” for the 2022- 2023 school year (Ex. P-A7). However, these specific remedies were not requested at the hearing (Tr. 44-45), and no evidence in the record, including the Parent’s affidavit testimony (Ex. P-S), supports a finding for the funding of such costs and expenses. See Exs. P-A through P-U.
[4] The Parent Counsel did not dispute that the Parent already had received the documents.