NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CASE NUMBER: 589828 - NYC: 240837
FINDINGS OF FACT AND DECISION
Case Number: 240837
Student's Name: [REDACTED]
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Requested By: Parent
Date of Hearing: 01/09/2023 Pre-Hearing Conference
01/19/2023 Pendency Hearing
01/24/2023 Pendency Hearing
02/07/2023 Status Conference
03/03/2023
04/04/2023
05/01/2023
05/03/2023
05/22/2023
06/06/2023
06/15/2023
Actual Record Close Date: 06/27/2023
Decision Date: 06/28/2023
Hearing Officer: Daniel Ajello Esq. Hearing Officer‘s Finding of Fact & Decision
NAMES AND TITLES OF PERSONS WHO APPEARED ON 01/09/2023
(All present by video or telephone)
NONE — Student
NONE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON 01/19/2023
(All present by video or telephone)
NONE — Student
NONE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON 01/24/2023
(All present by video or telephone)
[REDACTED], Attorney — Student
NONE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON 02/07/2023
(All present by video or telephone)
[REDACTED], Attorney — Student
NONE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/03/2023
(All present by video or telephone)
[REDACTED], Attorney — Student
[REDACTED], ESQ., District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON 04/04/2023
(All present by video or telephone)
[REDACTED], Attorney — Student
[REDACTED], ESQ., District Representative — DOE
Hearing Officer‘s Finding of Fact & Decision — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON 05/01/2023
(All present by video or telephone)
[REDACTED], Attorney — Student
[REDACTED], ESQ., District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON 05/03/2023
(All present by video or telephone)
[REDACTED], Attorney — Student
[REDACTED], ESQ., District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON 05/22/2023
(All present by video or telephone)
[REDACTED], Attorney — Student
[REDACTED], ESQ., District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON 06/06/2023
(All present by video or telephone)
[REDACTED], Attorney — Student
[REDACTED], Special Education Teacher — Student
[REDACTED], ESQ., District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON 06/15/2023
(All present by video or telephone)
[REDACTED], Attorney — Student
[REDACTED], — Parents
[REDACTED], ESQ., District Representative — DOE
Hearing Officer‘s Finding of Fact & Decision — DOE
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
Entered 01/24/2023
A. Due Process Complaint (DPC), 10/25/2022, 14 pages
B. Findings of Fact and Decision (FOFD), Case 216245, 09/20/2022, 45 pages
C. Pendency Implementation Form, 10/27/2022, 2 pages Entered 05/01/2023 Ex Document Date Page(s) D Ten Day Notice 08/23/2022 13 E Determination Report 09/15/2022 2 F Preschool Student Evaluation Summary Report 05/01/2019 26 G Psychological Evaluation by
[REDACTED], M.Ed., Psy.D. 08/28/2018 8
H Psychological Re-evaluation by
[REDACTED], M.Ed., Psy.D. 04/14/2019 6
I Neuropsychological Evaluation by
[REDACTED], Ph.D. 02/07/2021 13
J School / Classroom Evaluation by
Alexandra DeGeorge, M.Ed., Psy.D. 01/08/2020 3 K [REDACTED] 2022-2023 Contract 05/02/2022 1 L [REDACTED] 2022-2023 Calendar 2022-2023 1 M [REDACTED] 2022-2023 Attendance 2022-2023 1 N Parent September Bank Statement
Showing Proof of Payment 09/30/2022 4 O Parent October Bank Statement
Showing Proof of Payment 10/31/2022 6 P Parent November Bank Statement
Showing Proof of Payment 11/30/2022 4 Q Parent December Bank Statement
Showing Proof of Payment 12/30/2022 4 Hearing Officer‘s Finding of Fact & Decision
R Parent January Bank Statement
Showing Proof of Payment 01/31/2023 4 S Parent’s Payments to [REDACTED] Printed on 02/10/2023 2 T Excluded U Excluded V Excluded W [REDACTED] Progress Report 03/21/2023 4 X [REDACTED] Report Cards 2022-2023 6 Entered 06/15/2023 Y Resume of [REDACTED] undated 1 Z Affidavit of [REDACTED] 06/15/2023 6
DEPARTMENT OF EDUCATION (DOE)
NONE
Hearing Officer‘s Finding of Fact & Decision
IMPARTIAL HEARING OFFICER
Entered 01/24/2023 I Notice of Appointment, 12/23/2022, 4 pages Entered 02/07/2023 II Pendency Order, 01/24/2023, 8 pages III Notice of Appearance, 02/23/2023, 1 page Entered 05/03/2023 IV Proposed subpoena for [REDACTED] Inc., unidentified date, 3 pages V Proposed subpoena for [REDACTED] Support, unidentified date, 3 pages Entered 06/06/2023 VI Signed Subpoena, [REDACTED], 05/03/2023, 3 pages VII Signed Subpoena, [REDACTED] Inc, 05/03/2023 3 pages Entered 06/15/2023 VIII [REDACTED] Contract, 07/01/2022, 3 pages Entered 06/26/2023 IX Proposed Relief, undated, submitted 06/26/2023, 2 pages Entered 06/27/2023 X Consolidation Order, 06/23/2023, 3 pages Hearing Officer‘s Finding of Fact & Decision
INTRODUCTION
On 12/23/2022, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.
Pre-Hearing Conference was set, for 01/09/2023.
The Impartial Hearing Office failed to set the Pre-Hearing Conference up on the schedule.
A Pendency Hearing was set, for 01/19/2023.
The IHO logged onto the Hearing, on 01/19/2023. However, none of the Parties appeared.
Another Pendency Hearing was set, for 01/24/2023, which did take place.
Hearing continued, on 02/07/2023. Parent Attorney advised the IHO that settlement was not moving forward and: “the only thing we'd be looking for in this case at this point is a finding that there was no FAPE. And if you issue the decision before the school year ends, then we would need the pendency program to continue till the end of the school year. If the decision comes out at the end of the school year, all we'll really need is compensatory education, the difference between the mandate and what was delivered, which is going to chiefly be the hours of ABA and the supervision and some related services.” (T 39)
Additional information, provided by the Parent Attorney, included that the family was moving out of the District, at the end of the current school year. (T 40-41)
Hearing date, of 03/03/2023, was set to allow the DOE an opportunity to defend against the allegations contained in the DPC. (Ex A)
Appended to the record are lists of persons in attendance and the documents received in evidence.
Due Process Complaint (DPC) alleges a failure of the DOE to provide an appropriate IEP and placement for the 2022-2023 school year. (Ex A 2)
Parent allegations include:
- the DOE failed to conduct timely and appropriate evaluations of the Student (Ex A 2, Ex A 8-9);
- failed to create an appropriate Individualized Education Program (IEP) (Ex A
2, Ex A 9-10);
- failed to implement the Student’s IEP (Ex A 2); Hearing Officer‘s Finding of Fact & Decision
- Student is diagnosed with Autism and has significant delays and challenges which include tantrums and self-stimulation behavior (Ex A 3);
- On September 20, 2022, and Order was issued which included a Finding that the DOE denied a FAPE to the Student for the 19-20, 20-21 and 21-22 school years; and that the student required push-in 1:1 ABA, a small class with access to typical peers, ABA supervision, parent training and home-based ABA, and transportation for an extended school year (Ex A 7);
- On August 23, 2022, the Parents filed a Ten-Day Notice advising the DOE of their concerns, and issues and claims that were raised in the prior hearing, which lead up to the Parent’s assertions that the DOE has denied a FAPE to the Student for the 2022-2023 school year (Ex A 7 & Ex D);
- The DOE did not offer the Student a placement for the 22-23 school year (Ex
A 7);
- An IEP meeting was held, on 09/30/2022, where Parent asked for 1:1 services, ABA in school and extended day services consistent with the evaluations. The
DOE representative told parent and the Board Certified Behavior Analyst (BCBA) that attended the meeting that the DOE does not offer ABA but he could record the recommendations for ABA and the parents’ requests on the IEP (Ex A 7); and
- The parent asked for transportation, but the DOE representative told the parent that they had to obtain their own evaluation and request transportation as an accommodations. Thus, the IEP did not include transportation, even though the Student should be entitled to transportation. (Ex A 8)
Parent seeks a variety of forms of relief to remedy the alleged failure, including:
a. A declaratory judgment in favor of the Parents that the DOE has denied the Student a FAPE the school year (SY) at Issue and violated the laws as alleged herein; Hearing Officer‘s Finding of Fact & Decision
b. Immediate implementation of pendency as per the FOFD Issued in Case No.
216245. (Resolved via Order IHO Ex II);
c. The DOE should fund a full-day, push-in 1:1 program in a small inclusion setting including tuition for the program, with related services and a home-based program of after-school 1:1 services to work on feeding, behavior, ADL skills and self-regulation. This should include increased SLT and OT, as well as PT and transportation, all for a 12-month extended school year;
d. The DOE shall fund (or at the Parents’ election, provide) compensatory education for the denial of FAPE to restore the Student to the position that the Student would have been in had FAPE not been denied, as well as for any failure to implement pendency. Appropriate compensatory education should and/or may include a bank of 1:1 instruction; additional SEIT; 1:1 instruction with a research-based strategy, such as Applied Behavior Analysis, executive functioning support, tutoring, behavior therapy, services to improve executive functioning, related services (such as occupational therapy, physical therapy, speech therapy, counseling, social skills training) as well as any other services recommended as a result of independent evaluations;
e. The DOE should reimburse the Parents for any out-of-pocket expenses relating to the Student’s special education needs (if any) including but not limited to payment for transportation, tuition, evaluations, ABA, Floortime, evaluations and any services that they purchase during the school years (Sys) at Issue and the pendency of this hearing (Ex A 12);
f. Any services ordered should be delivered by providers of the Parents’ choice for “enhanced market rates” that are necessary to ensure that the Student works with appropriate providers and consistent with the rates paid by the DOE’s Impartial Hearing Implementation Unit to the providers pursuant to hearing orders (Ex A
12-13); and
Hearing Officer‘s Finding of Fact & Decision
g. All other relief that is appropriate as of the time that the IHO is ready to issue a final order, but which may not have been known to the Parents as of the time this hearing was filed. As the Student has not been appropriately and thoroughly evaluated, and has not received appropriate services, it is not possible to identify every potential remedy that may be warranted to place the Student in the position he would be in, had he not been subjected to the deprivations described herein.
(Ex A 13)
Parent Attorney summarized sought after proposed relief in document entered as IHO Ex IX.
Regarding Pendency, Order has been issued. (IHO Ex II)
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
THE POSITION OF EACH PARTY
Pendency Order was issued, on 01/24/2023, which identified Pendency through a FOFD, of 09/20/2022 (Ex B), as reflected on Pendency Implementation Form (Ex C), commencing on 10/27/2022, of:
Tuition:
- [REDACTED] (UP), 10 months
Reimbursement to Parent Services:
- Occupational Therapy, Ratio and Frequency 2 x 30, 10 months, via Related
Service Authorization (RSA)
- Speech-Language Therapy, Ratio and Frequency 1x30 1:1, 10 months, via Related Service Authorization (RSA) Hearing Officer‘s Finding of Fact & Decision
- Speech-Language Therapy, Ratio and Frequency 1x30 Group, 10 months, via
Related Service Authorization (RSA)
- 1:1 Special Education Teacher Services, 10 hours per week, 10 months, Payment
Direct
- 1:1 ABA, 25 hours per week in school - ABA Supervision, 2 hours per week,
Payment Direct
- Transportation, Private, Reimbursement to Parent.
(IHO Ex II 6)
At Hearing, of 02/07/2023, the DOE appeared, and noted it would not be presenting a case defending against the allegations, contained in the DPC, though it did reserve the right to challenge the appropriateness of the Parent engaged services. (T 52)
At Hearing, of 04/04/2023, information was received that settlement negotiations were stalled. (T 82-85)
Parent had received a letter, from the DOE, indicating a desire, on the part of the DOE, to perhaps settle the matter. (Ex E)
The DOE Representative advised the record that even though Parent received a Settlement Notice, settlement was not ongoing. (T 85)
At Hearing, of 05/01/2023, Parent Attorney set fort the Parent’s position, and relief sought.
Parent essentially seeks continuation of the current appropriate Student program, which the Parent assembled in light of the DOE’s failure to offer a FAPE for several years, and compensatory services. (T 104-106)
Parent seeks to be reimbursed for Student UP tuition and transportation costs; a bank of hours for the services the Student should have received, namely the push-in 1:1 ABA, 25 hours weekly; and one-to-one special education teacher services ten hours a weekly. (T 106-107)
Parent Attorney notes the Student services should be based upon a 12 month school year. (T 114, Ex B 32)
Findings of Fact and Decision, of 09/20/2022, includes: “the program that Student received in 2021-22 was an appropriate program for him, except that DOE, not private Hearing Officer‘s Finding of Fact & Decision insurance, should have provided Student’s in-school ABA services, and the services should have been provided year-round.” (Ex B 32)
The Findings of Fact and Decision includes reference to evidence indicating the Student showed significant regression, in the past. (Ex B 12, 18-19)
A unique characteristic of the case, from the Parent perspective, is that the prior Order (Ex B) assumed the DOE would be providing in school ABA services, and the Parent would provide at home services via insurance. The DOE never implemented the Ordered services, and the Parent was left to utilize the insurance for whatever hours could be implemented. (T 109-110, Ex B 32)
The DOE position generally noted that if the Student did not receive Ordered services, the District seems not to have much of an argument. (T 113)
The DOE raised concerns regarding the Particular provider delivering services to the Student. The IHO noted that any DOE dispute with a particular provider, does not alter the right of the Student to a particular service he or she may be entitled to under a previous Order, or as may arise under the current Case. The IHO continued that the Parent is not seeking an Order for any particular provider. (T 119-120, 123-124, 127-128 & 132)
Discussions at Hearing came to center around the DOE seeking Subpoenas for various documents and information. (T 124-160) Discussions resulted in a Hearing being set to discuss the anticipated Subpoenas coming from the DOE.
Hearing was held, on 05/03/2023, and subpoenas were issued. (T 124-IHO Ex VI & VII)
At Hearing, the Parent supported its position via Documentary Evidence and Oral Testimony. The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below.
The Parent Attorney reviewed the sought after relief, and submitted a proposed Order to ensure the record was clear regarding specifics of this unique case. (T 315-317, IHO Ex IX)
The DOE Attorney offered a closing statement, on the record, at Hearing, of 06/15/2023.
The DOE Attorney argues that entities, beyond the UP, do not have privity of Hearing Officer‘s Finding of Fact & Decision contract with the Parent, and therefore should not be entitled to DOE funding.
Regarding [REDACTED]:
“…it's the District's position that because it admits the material term price, that it's not really a enforceable contract. And for that reason, we ask that anyone -- that the Parent does not have an enforceable contract with the -- any relief you order be on a reimbursement basis rather than a direct payment basis pursuant to the E.M. case.” (T 321)
The DOE Attorney ads that, regarding a 10 or 12 month program: “Based on the parent's affidavit in this case, my understanding is that except for compensatory services related to certain ABA services, that they are waiving reimbursement or the claim for a 12-month program for the summer of 2022… So on that basis, I would ask that while, as has been discussed, there is some indication in the prior FOFD and the parent's testimony in this matter about regression, it appears to me that, at least for 2022 except for the ABA services, that that claim has been waived. And further, I'd just ask that Your
Honor consider all the evidence and enter an order appropriate based on the evidence and testimony in the case.” (T 322)
Discussions ensued regarding the alluded to [REDACTED] Contract, which was ultimately provided, and entered, as IHO Ex VIII. (T 323-330)
[REDACTED], Special Education Teacher
Student’s special education teacher provided Testimony that included:
- Her qualifications and experience as a classroom teacher and Special Education Itinerant Teacher (SEIT) (T 230-233;
- Familiarity with the Student, being his SEIT provider (later clarified to mean one- to-one special education teacher services) for the past two and a half years, via
Agency [REDACTED] (T 232-233 & 274);
- Last year and since the 19-20 school year, works with the Student, at the UP (T
233);
- Student is currently in the [REDACTED] and Witness provides ten weekly SEIT hours, to the Student (T 234 & 267);
- Witness provides the Student with one-to-one special education services (T 274); Hearing Officer‘s Finding of Fact & Decision
- Witness describes her services: “I try to provide him with additional support. I try to keep him within the classroom and help him stay with the group and do the group activities, and however I can facilitate him maintaining attention to the classroom teacher better, however I can facilitate him understanding what the teacher is talking about so he can be part of the group better…Sometimes, it's, you know, he needs more sensory work to help him sit and attend better. Sometimes, he needs more explanations. Sometimes, he needs more positive reinforcement.
Sometimes, he needs some negative reinforcement. He --sometime, he needs a reminder of the rules, a reminder of the directions, extra visuals.” (T 277);
- Witness assists the Student with ELA skills (T 277-279);
- Student also receives 20 ABA hours and SLT and OT services (T 234);
- Witness believes the ABA is funded via Medical insurance (T 234);
- Student class has 20 students, in an integrated program, which has some student with and some without IEPs; and the class has one teacher and three assistants (T
235);
- Witness provides services to other Students in the classroom (T 235-236);
- A review of the Student’s typical daily schedule, with includes ten minutes each day of prayer., academics and a toileting schedule (T 236-238);
- Details regarding Student services, such as communicating with the Student’s ABA provider and BCBA (T 238-240);
- Details regarding coordination with Student’s BCBA (T 239-240);
- Student receives occupational therapy, twice weekly for 30 minute sessions to develop fine motor skills (T 240);
- Student receives SLT twice weekly for 30 minute sessions to work on eye contact, answering questions, staying on task and staying on topic when talking to somebody (T 241);
- A review of Student challenges, which include: following directions, executive functioning, focus, and behaviors (T 242);
- Progress related to socialization for the 22-23 school year (T 243-244);
- Very little progress with improving self-stimulatory behavior (T 244);
- Executive functioning progress (T 245-246); Hearing Officer‘s Finding of Fact & Decision
- Progress with paying attention (T 246-247:
- Strategies employed when is resistant to new material and behaviors interfere with learning (T 248-249);
- Behavior plans and rewards strategies have been utilized with the Student (T 249-
250);
- Student struggles during lunch, and his feeding skills have improved (T 252-253)
- A review of Student academic progress, in areas of: decoding, reading skills (T
253-254, 256-257); writing (T 254); math (T 254-256); Hebrew language skills (T
256); listening comprehension (T 256); and play skills (T 257);
- Strategies observed that the ABA provider uses sensory work to assist the Student
(T 259); and
- Student would not be able to attend the UP without the services provide by the
Witness. (T 279-280)
[REDACTED], Parent
The Student’s father provided Testimony via Affidavit (Ex Z), and at Hearing.
Testimony, at Hearing, included:
- [REDACTED] session rate is $[REDACTED] per hour (T 293-294);
- Regarding regression, over the summer 2022, the Student reading skills lapsed, and he was estimated to require seven to eight weeks before getting put to the “correct reading group” (T 300-301); and
- Student transportation, to and from the UP, is via bus, paid for by the Parent, in the amount of $[REDACTED] monthly. (T 303-305)
A. Due Process Complaint (DPC), 10/25/2022
Details allegations of the Parent of a denial of FAPE, for the 22-23 school year, and outlines sought after relief.
B. Findings of Fact and Decision (FOFD), Case 216245, 09/20/2022
Decision found the DOE denied the Student a FAPE, for the 21-22 school year, and identified an appropriate Student program, for said school year. (T B 32-33) Hearing Officer‘s Finding of Fact & Decision
This Decision was determined to be the basis of the Pendency Order. (IHO Ex II)
D Ten Day Notice 08/23/2022
Parent notifies the DOE of: the allegations related to a denial of FAPE, for the 2223 school year; failure of the DOE to properly evaluate the Student; failure of the DOE to implements Student IEPs (Ex D2); a review of the Student’s educational history (Ex D 310); and Parent will be seeking relief that includes continued funding of the Student’s program and services, including attendance at the UP. (Ex D 12-13)
F Preschool Student Evaluation Summary Report 05/01/2019
Confirms areas of Student delay and the need for special education services.
G Psychological Evaluation by [REDACTED], M.Ed., Psy.D. 08/28/2018
Confirms Student requires special education services, noting the need for 25 weekly hours of ABA services. (Ex G 6)
H Psychological Re-evaluation by [REDACTED], M.Ed., Psy.D. 04/14/2019
Confirms Student requires special education services, noting the need for 25 weekly hours of ABA services, and related services. (Ex H 5-6)
I Neuropsychological Evaluation by [REDACTED], Ph.D. 02/07/2021
Confirms Student requires special education services, noting a diagnosis of Autism. (Ex I 9)
Recommendations include:
- A program that includes 30 to 45 weekly hours of ABA services, via a combination of school and home services;
- Speech Language Therapy;
- Parent Education and Training (Ex I 10); and
- Classroom accommodations. (Ex I 11)
J School / Classroom Evaluation 01/08/2020 Hearing Officer‘s Finding of Fact & Decision
Confirms Student need for a variety of special education services.
K [REDACTED] 2022-2023 Contract 05/02/2022
Student Tuition is set forth as including: $[REDACTED], for [REDACTED], $[REDACTED] registration fee, and a $[REDACTED] supply fee. Total:
$[REDACTED]. (Ex K 1)
The Contract also includes a $[REDACTED] scholarship contribution, which does not seem to be part of the Student’s Tuition, but actually a contribution, since it is noted as tax deductible. (Ex K 1)
The Contract also notes that any needed paraprofessional will be provided by the Parent directly, and not the UP. (Ex K 1)
L [REDACTED] 2022-2023 Calendar 2022-2023
UP 22-23 school calendar.
M [REDACTED] 2022-2023 Attendance 2022-2023
Student attendance records evidence attendance at the UP, during the 22-23 school year.
N Parent September Bank Statement Showing Proof of Payment 09/30/2022
Presented as evidence of Parent payments to the UP, related to Student 22-23 Tuition.
O Parent October Bank Statement Showing Proof of Payment 10/31/2022
Presented as evidence of Parent payments to the UP, related to Student 22-23 Tuition.
P Parent November Bank Statement Showing Proof of Payment 11/30/2022
Presented as evidence of Parent payments to the UP, related to Student 22-23 Tuition. Hearing Officer‘s Finding of Fact & Decision
Q Parent December Bank Statement Showing Proof of Payment 12/30/2022
Presented as evidence of Parent payments to the UP, related to Student 22-23 Tuition.
R Parent January Bank Statement Showing Proof of Payment 01/31/2023
Presented as evidence of Parent payments to the UP, related to Student 22-23 Tuition.
S Parent’s Payments to [REDACTED] Printed on 02/10/2023
Presented as evidence of Parent payments to the UP, related to Student 22-23 Tuition.
W [REDACTED] Progress Report 03/21/2023
Reviews Student Strengths and Weaknesses, and presents Student levels of academic achievement for Reading as beginning [REDACTED], and Math as Kindergarten. (Ex W 1-2)
Provides details as to the need for continued SEIT support: “needs continued 1:1 SEIT support so he can acquire grade level phonemic awareness, decoding and comprehension skills, and continue to progress to master grade level reading goals.” (Ex W 1)
Notes a variety of Student needs and supports, which include: 10 weekly hours of SEIT; when without the SEIT full time 1:1 ABA support (Ex W 1); motivational rewards; visuals; repetition; and manipulatives. (Ex W 2)
A review of the Student’s negative behaviors relating to Social Development, including tantrums, obsessions and singing repetitive songs to himself. (Ex W 2-3)
A review of the Student’s Physical Needs, relating to Handwriting, Mobility, Balance, Coordination, and Overall Health Issues. (Ex W 3)
Management needs included:
- a small classroom where he has access to typical peer models
- 1:1 instructional support in the form of ABA therapy
- ABA therapy is recommended in both the school and home setting, as he Hearing Officer‘s Finding of Fact & Decision needs 1:1 instruction and ABA (35-40 hours per week depending on the length of the school day)
- a formal FBA and BIP performed by a BCBA/LBA that includes both the home and school setting to address the function of his behaviors
- related services to address his related delays.
(Ex W 3)
X [REDACTED] Report Cards 2022-2023
Evidences overall success, at the UP, in areas of Academics.
Y Resume of [REDACTED] undated
Qualifications of Student’s 1:1 special education service provider.
Z Affidavit of [REDACTED] 06/15/2023
Parent provides uncontroverted and credible Testimony that includes:
- Student diagnosed with Autism in August 2018;
- A second opinion was obtained from a psychologist who confirmed the diagnosis and recommended twenty-five (25) hours per week of ABA;
- Student received Early Intervention (EI) services of occupational therapy (OT), speech and language therapy (SLT), physical therapy (PT) and 25 weekly hours of 1:1 ABA;
- From September 2018, Student received ABA and related services in a typical nursery school, and 5 hours of weekly ABA, at home;
- Student made progress, improving his play and social skills through modeling, and he had emerging language;
- At home, the Student was engaging in tantrums and had difficulty transitioning, issues that the ABA services were targeting;
- When the Student transitioned to preschool, via the preschool Committee on Preschool Special Education (CPSE), Parents were told by the CPSE administrator that ABA was not available through the CPSE;
- Parents believed the Student would automatically lose ABA and the only option would be a special education class, based on what the administrator shared (Ex Z 1); Hearing Officer‘s Finding of Fact & Decision
- Parent reviewed the CPSE process, revealing a lack of options and a lack of availability of ABA;
- Student was recommended to a special class (12:1:2) with OT and SLT, where he regressed and developed increased physical self and vocal stimulation;
- Parents raised concerns and another IEP meeting took place, where continued lack of ABA availability was communicated to he Parents, by the DOE;
- Parent arranged for ABA via insurance;
- Student was supposed to return to his private nursery school at the end of March 2020 with five hours of SEIT and his insurance-funded ABA, but COVID shut down the schools;
- Student many of his services during COVID, which were the subject of another hearing;
- Having been offered no other program, in September 2020, Student was enrolled, at the
UP: in a small class (16-18) students, with one lead teacher, and two teaching assistants; with insurance-funded ABA of 22-25 hours per week;
- In approximately November 2020, the DOE started to provide SEIT (5 hours), OT and
SLT;
- Parents paid for ABA copays and, as of October 2020, a monthly tuition at UP, as well as costs of transportation as of February 2021 (Ex Z 2);
- Student, in January and February 2021, underwent a neuropsychological evaluation, which made a variety of recommendations (Ex I);
- Parent requested an increase in SEIT and summer services, which was supported by his SEIT and the school, and in February 2021, the DOE agreed to ten weekly SEIT hours but did not agree to any summer hours; - In spring 2021, Student was recommended to obtain a vision and hearing evaluation and Floortime therapy, and ultimately Vision therapy was recommended; - Turning five IEP meeting was held, on 06/02/2021, and Parent participated by phone; - Parent raised the need for a PT evaluation, which prompted an email to the chairperson; - In the summer of 2021, Student attended day camp with his ABA provider, and he seemed more engaged and socially motivated; - For the 21-22 school year the Student returned to the UP, where he made some progress from the end of the year into the summer; Hearing Officer‘s Finding of Fact & Decision
- Parent did not pay any deposit, to the UP, until July 7, 2021, and we did not make an initial tuition payment until September 2021, at which time Parent’s filed for an Impartial Hearing; - Student received services via Pendency, including 10 hours per week of SEIT, OT and SLT, and Parents continued the push-in ABA via insurance; - Parent paid for Student to participate in Floortime therapy from August 2021 to December 2021, at our own expense; - Parent became familiar with the curriculum at UP and the academic aspect of the program because “I helped [Student] with his homework, which involved reading, math, writing and object identification.”; - Student’s 20-21 UP class had 16 children, with one teacher and two assistant teachers, as well as three SEITs in the classroom, along with peer models and other support staff;
- In 2020-2021, Student was taught Hebrew, and 15 minutes per day were spent on prayer;
- Compared to his classmates, Student’s skills were average for reading, slightly less for math, and he is the most reluctant writer. He was the most impaired socially, with respect to expressive and receptive language, and play skills (Ex Z 3);
- Parent saw Student progress during the 21-22 school year (Ex Z 4);
- On 05/02/2022 Parent registered the Student for the UP, though if the DOE offered an appropriate program the Student could have ben removed from the UP;
- Parent details the Status of his child’s education and the Parent’s understanding of how the Hearing process was moving along: “Since I had been arguing in the prior hearing that my son needed summer services (which the prior hearing officer finally awarded in terms of ABA), I believed that the DOE should have offered my son an appropriate IEP before July 1, 2022. However, by August 2022, when we were still in the hearing, I knew that would not likely be the case. Thus had been reconfirmed through the hearing, as the DOE does not offer ABA or any inclusion class smaller than a regular public school ICT class, which could exceed 30 children. We were still in litigation about this in July and August of 2022, and the DOE did not show any indication that it was changing its position on those issues.” (Ex Z 4);
- Student did not receive an IEP or placement, for the 22-234 school year (Ex Z 4);
- Student had severe regressions during school breaks, affecting reading, focus and Hearing Officer‘s Finding of Fact & Decision behavior (Ex Z 4);
- Student was provided with summer 2022 camp and some educational services, paid for by the Parent (Ex Z 4-5);
- For the 22-23 school year:
o The Student returned to the UP in September of 2022;
o Student has made slow progress at the UP;
o Parent Paid for Student bussing to and from the UP;
o This year he is struggling significantly with his focus, working in groups, listening attentively, adapting to new routines, and building relationships with peers (Ex Z 5);
- “Student requires ABA hours at home, after school, to assist with homework, and in school so he can gain socially and academically. We should have been able to use our home-based ABA hours funded by our insurance at home and in the community to work on these major areas of delay. Instead, like last year, we have had to use those hours in school, instead of being able to have them at home, because the DOE did not implement the mandate to provide ABA even after it was ordered.” (Ex Z 5);
- “My wife and I continue to struggle with [Student’s] behavior at home and we need those
ABA hours and the parent training so we can improve his communication, manage tantrums and address [Student’s] perseverative behaviors.” (Ex Z 5);
- Pendency has paid for some Student services, though a gap exists between September 20, 2022, and October 25, 2022, when Pendency was not in place (Ex Z 5-6);
- Parent review of invoices from [REDACTED] show there were approximately 20 hours of 1:1 special education teacher services delivered to [Student] during that month that were not covered by pendency, for which aren’t is responsible (Ex Z 5-6);
- [REDACTED] services are invoiced at $195.00 per 1:1 service (Ex Z 6);
- Parent believes there were 8 sessions of speech and 8 sessions of OT owed during those four weeks, if pendency is 2x30;
- The DOE should have provided ABA on a year-round basis, as, according to the prior
- hearing officer, my son should have had year-around ABA services from the DOE;
- With regard to reimbursement, I am requesting that the IHO award me and my son the
- following: Hearing Officer‘s Finding of Fact & Decision o (a) reimbursement to me for the full cost of [REDACTED] and transportation;
o (b) direct payment to any pendency provider of 1:1 teacher services and related services who delivered services to [Student] in 2022-2023; o (c) payment to the agency that delivered the 1:1 teacher services provided between September 21, 2022 and October 24, 2022, as well as any related services that were provided;
o 59. In addition, I am requesting that the IHO award my son a bank of 25 hours of 1:1 ABA per week as well as a bank of 2 hours per week of supervision from July 1, 2022, up until the IHO makes his decision. (Ex Z 6)
Regarding the Tuition, paragraph 48 sets forth UP Tuition as including $[REDACTED], $[REDACTED] registration fee, and $[REDACTED] supply fee. (Ex Z 5).
Affidavit also includes $[REDACTED] scholarship contribution, which does not seem to be part of the Tuition, but actually a contribution, since it is noted as tax deductible. (T 340)
Parent Attorney stated that there would be no objection to not including the $[REDACTED], in the UP Tuition amount. (T 340)
Student bussing is paid at a cost of $[REDACTED] monthly. (Ex Z 5)
VIII [REDACTED] Contract, 07/01/2022, 3 pages
Contract between Parents and [REDACTED] for delivery of special education services.
Agreed to service rate is set forth as: “enhanced market rates…in the invoices being processed.” (IHO Ex VIII 2)
Though the services may be paid via the DOE, the Parents remain ultimately responsible for payment, under the Contract. (IHO Ex VIII 2-3)
FINDING OF FACTS AND DECISION
Purposes of the Individuals with Disabilities Education Act (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]Hearing Officer‘s Finding of Fact & Decision
[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. 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 CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; 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. Florida 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]). 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., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).
Under the IDEA, if procedural violations are alleged, an administrative officer 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; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 Hearing Officer‘s Finding of Fact & Decision
[2d Cir. Aug. 19, 2008]).
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 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). 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]; Perricelli, 2007 WL 465211, at *15). 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 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; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
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. Dep't 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, Hearing Officer‘s Finding of Fact & Decision 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]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
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., 137 S. Ct. at 1000).
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 the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (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).
The burden of proof 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 Hearing Officer‘s Finding of Fact & Decision
184-85). 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 offered an educational program which met 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 the State 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]). "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'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). 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" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (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]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
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 benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances Hearing Officer‘s Finding of Fact & Decision 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. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; 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 also 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., 744 F.3d at 840 [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 be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "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 Hearing Officer‘s Finding of Fact & Decision expense" (20 U.S.C. § 1412[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., 459 F.3d at 376; Voluntown, 226 F.3d at 68).
DOE offer of FAPE for the 2022-2023 School Year
At Hearing, of 02/07/2023, the DOE appeared and noted it would not be presenting a case defending against the allegations contained in the DPC, though it did reserve the right to challenge the appropriateness of the Parent engaged services. (T 52)
The DOE did not present a defense to the Parent’s allegations.
The DOE has not evidenced development of an appropriate IEP for the commencement of the 22-23 school year.
The DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 22-23 school year.
I find the DOE failed to offer the Student a FAPE for the 22-23 school year.
UP Placement for the 22-23 School Year
Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 22-23 school year.
The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. I find that the documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent.
Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex F, G, H, I, J, W, X & Z and T 252-253, 277-279, 236-238, 238240, 241-24, 245-247, 252-253, 259, 279-280) Hearing Officer‘s Finding of Fact & Decision
I find that the UP provides special education services specifically tailored to meet the needs of the Student.
I find UP provides an appropriate education and program for the Student for the 22-23 school year.
TUITION FUNDING 2022-2023 School Year
I find the Parent is entitled to Student’s UP Tuition funding, via the DOE, for the UP, 2223 school year.
Parent provided appropriate Ten Day Notice. (Ex D)
The DOE has denied a FAPE to the Student for the 22-23 school year.
The UP, 2022-2023 Contract, sets forth Student Tuition as including:
o $[REDACTED], for [REDACTED]
o $[REDACTED] registration fee, and
o $[REDACTED] supply fee.
Total: $[REDACTED]. (Ex K 1)
The Contract also notes that any needed paraprofessional will be provided by the Parent directly, and not the UP. (Ex K 1)
Student, is evidenced to have attended the UP, during the 22-23 school year. (Ex M)
Parent has been making payments, to the UP, for Student 22-23 Tuition. (Ex N through S)
In this matter the Parents choose to continue Student placement at UP, without any appropriate DOE alternative.
I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to direct DOE funding of the UP tuition, for the 22-23 school year.
I find the Parent is entitled to DOE, UP funding, as Ordered below.
COMPENSATORY SERVICES
Parent seeks an Order for compensatory services:
“The DOE shall fund (or at the Parents’ election, provide) compensatory education for the denial of FAPE to restore the Student to the position that the Student would have been in had
Hearing Officer‘s Finding of Fact & Decision
FAPE not been denied, as well as for any failure to implement pendency. Appropriate compensatory education should and/or may include a bank of 1:1 instruction; additional SEIT; 1:1 instruction with a research-based strategy, such as Applied Behavior Analysis, executive functioning support, tutoring, behavior therapy, services to improve executive functioning, related services (such as occupational therapy, physical therapy, speech therapy, counseling, social skills training) as well as any other services recommended as a result of independent evaluations.” (Ex A 12)
Considering the DOE failure, the Parent specifically seeks a reasonable array of Student services, via Parent chosen provider(s) at prevailing market rate:
a. 1000 hours of ABA (25 x 40 weeks);
b. 80 hours of ABA supervision (2x40 weeks);
c. 400 1:1 special education teacher services, less any 1:1 special education teacher services provided (10 hours x 40 weeks);
d. 40 hours of OT, less the number of OT sessions the Student received since July 1, 2022 (2x30x36 weeks); and
e. 40 hours of SLT, less the number of SLT sessions the Student received since July
1, 2022. (IHO Ex IV 1-2)
Parent Attorney argued throughout the Hearing that the Student was denied services found to be appropriate for the Student; and that those services continue to be appropriate for the Student. This includes ABA services Ordered previously, which the DOE did not facilitate and deliver for the Student. (T 104-107, Ex B 32)
As noted above, a unique characteristic of the case, from the Parent perspective, is that the prior Order (Ex B) assumed the DOE would be providing in school ABA services, and the Parent would provide at home services via insurance. The DOE never implemented the Ordered services, and the Parent was left to utilize the insurance for whatever hours could be implemented. (T 109110, Ex B 32)
The DOE position generally noted that if the Student did not receive Ordered services, the District seems not to have much of an argument. (T 113)
Compensatory education is an equitable remedy that is tailored to meet the unique Hearing Officer‘s Finding of Fact & Decision circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100).
The nature and extent of compensatory education services that courts have recognized varies according to the facts and circumstances of a given case; however, as a remedy that arises out of the equitable jurisdiction of 20 U.S.C. §1415, courts will craft compensatory education relief that “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” Reid, 401 F.3d, at 516; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)(same); see, e.g., G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student.”); see also Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994)(Noting that “it may be a rare case when compensatory education is not appropriate” to remedy an IDEA violation.).
In determining a compensatory award, most courts seek to ascertain the child’s needs at the time the relief is sought.10 Reid, 401 F.3d 516; see, e.g., Streck, 2010 WL 4847481, at *2 (Court awarded compensatory education relief that required the school district to “open and maintain for 3 years, an escrow account,” which will be used to pay for student’s reading instruction at Landmark College and assistive technology supports.); Woods v. Northport Pub. Sch., 487 Fed. Appx. 968, 2012 WL 2612776, at *978-79 (6th Cir. July 5, 2012) (upholding IHO award of 768 hours of compensatory tutoring as “reasonable recover” for a lengthy denial of FAPE; given the student’s age, the “window of opportunity to become usefully literate ha[d] begun to close.”).
If Student is found to be entitled to compensatory education under applicable law; compensatory education is an equitable remedy that arises out of the jurisdiction of 20 U.S.C. § Hearing Officer‘s Finding of Fact & Decision
1415; equitable factors do not bar relief here and no inequitable conduct was established on the part of the parents. N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Dist. of City, No. 07 Cv. 9648 (BSJ), 2009 WL 874061 (S.D.N.Y. Mar. 31, 2009) (Reversing the SRO and upholding the award; Court found that it is well established that, in the absence of evidence demonstrating that the parents failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim for tuition.); Wolfe v. Taconic Hills Cent. Sch. Dist., 167 21 F.Supp.2d 530 (N.D.N.Y. 2001)( the equities—requires a balancing of both parties’ conduct and interest—not merely the actions of the parent). There are no facts established here that show that the parent failed to cooperate or acted inequitably to interfere with the DOE’s ability provide FAPE.
A FAPE has already been found to have been denied the Student for the 22-23 school year.
The Parent has established the basis of an appropriate Student program, for the 22-23 school year.
Parent evidences a reasonable basis for award of compensatory services, in light of the DOE failure, as Ordered below.
PROGRAM AND PLACEMENT
When determining an appropriate placement on the educational continuum, a CSE should first determine the extent to which the student can be educated with nondisabled peers in a public school setting before considering a more restrictive nonpublic school option (see E.F. v New York City Dept. of Educ., 2013 WL 4495676, at *15 [E.D.N.Y. Aug. 19, 2013] [explaining that "under the law, once [the district] determined that [the public school setting] was the least restrictive environment in which [the student] could be educated, it was not obligated to consider a more restrictive environment, such as [the nonpublic school]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *8 [finding that "[o]nce the CSE determined that [public school setting] would be appropriate for the [s]tudent, it had identified the least restrictive environment that could meet the [s]tudent's needs and did not need to inquire into more restrictive options such as nonpublic programs"]). An IHO Order that the CSE refer the student to the CBST for placement in a nonpublic school, particularly when read in conjunction with his order that the CSE reconvene to consider the results of the various ordered evaluations of the student, would Hearing Officer‘s Finding of Fact & Decision violate the CSE's duty to first determine if the student can be educated in a public school setting, and, as such, is premature (see Cooke Center for Learning and Dev. v. Mills, 19 A.D.3d 834, 836 [3rd Dep't 2005] ["The federal law prefers a 'public' education, where a 'child is educated in the school that he or she would attend if nondisabled,' if possible"]; Matter of Pelose, 66 A.D.3d 1342, 1344 [4th Dep't 2009] ["Indeed, the central purpose of the IDEA …and article 89 of the Education Law is to afford a 'public' education for children with disabilities"]).
Presently, the 22-23 school year has ended, without an offer of FAPE from the DOE, leaving a Student program to be identified via the Hearing process.
Regarding Student transportation, this services is already Ordered for the Student via reimbursement to the Parent. (IHO Ex II)
The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). In addition, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]).
Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 16¬035). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]).
Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot Hearing Officer‘s Finding of Fact & Decision access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).
In this case the evidence continues to support the need for DOE funded transportation.
The DOE raises no objection to continuing special education transportation.
I find evidence supports the provision of a special education transportation for the Student for the 22-23 school year.
Testimony includes, Student bussing is paid at a cost of $370.00 monthly. (Ex Z 5)
Parent Attorney seeks the Student be established as being entitled to a 12 month school year. (Ex A 7)
Pursuant to State regulation, a 10-month school year from September through June consists of at least 36 weeks, and a 12-month school year from June through July would generally consist of 42 weeks. This is based on the 180 instructional days in a 10-month school year, plus an additional 30 days during the 12-month portion of the school year that occurs over a summer, typically during a six week program (see Educ. Law § 3604[7]; 8 NYCRR 200.1[eee])
Generally, a student is eligible for a 12-month school year service or program "when the period of review or reteaching required to recoup the skill or knowledge level attained by the end of the prior school year is beyond the time ordinarily reserved for that purpose at the beginning of the school year" ("Extended School Year Programs and Services Questions and Answers," VESID Mem. [Feb. 2006], available at http://www.p12.nysed.gov/specialed/applications/ESY/2014-QA.pdf). Typically, the "period of review or reteaching ranges between 20 and 40 school days," and in determining a student's eligibility for a 12-month school year program, "a review period of eight weeks or more would indicate that substantial regression has occurred" (id.; see D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *15-*16 [E.D.N.Y. Sept. 2, 2011]; see also F.L. v. Bd. of Educ. of Great Neck Union Free Sch. Dist., 274 F. Supp. 2d 94, 125 [E.D.N.Y. 2017]).
Presently, evidence supports the Student receiving 12 month services.
Student has historically, and presently evidenced significant regression, when there have Hearing Officer‘s Finding of Fact & Decision been breaks in Student services. (Ex B 12, 18-19, T 300-301, Ex Z 4)
Evidence presented establishes an appropriate Student program, as borne out via the Pendency Order, with the notable exception of not specifically addressing Student entitlement to a 12 month school year. (Ex B & IHO Ex II)
Appropriate program is found to be delivered at the UP, for the 22-23 school year, to the extent the UP is able to deliver the services which comprise the Student’s appropriate program, without appropriate engagement by the DOE.
Evidence supports the services and program received by the Student. This includes ABA services, and supports, detailed throughout the evidence. (Ex G, H, I, Z 5 & W)
Appropriate Student program includes:
- A 12 month Extended School year;
- Occupational Therapy, Ratio and Frequency 2 x 30, 10 months, via Related Service Authorization (RSA);
- Speech-Language Therapy, Ratio and Frequency 1x30 1:1, 10 months, via Related Service Authorization (RSA);
- Speech-Language Therapy, Ratio and Frequency 1x30 Group, 10 months, via Related Service Authorization (RSA);
- 1:1 Special Education Teacher Services, 10 hours per week, 10 months, Payment
Direct;
- 1:1 ABA, 25 hours per week in school;
- ABA Supervision, 2 hours per week, Payment Direct; and
- Transportation, Private, Reimbursement to Parent.
(IHO Ex II 7)
Relief in the form of IEP amendments and prospective placement of the student in a nonpublic school is not appropriate in this instance as it would tend to circumvent the statutory process, under which the CSE is the entity tasked with reviewing information about the student's progress under current educational programming and periodically assessing a student's needs (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"]; see Hearing Officer‘s Finding of Fact & Decision also Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 [E.D.N.Y Oct. 30, 2008] [noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year"]).
However, at this point, the 2022-2023 school year is at an end, and the DOE has not evidenced any attempt to formulate an appropriate Student program.
This Order is not calling for any amendment to an IEP. Either Party is free to call for an IEP meeting at anytime.
This Order is also not Ordering a prospective placement.
The Order is intended to establish an appropriate Student program which is capable of offering a FAPE.
Obviously, this Order will likely serve as the Student’s Pendency moving forward, considering the 12 month school year is about to commence.
RATE OF FUNDING FOR SERVICES PROVIDED
Regarding the rate of payment for Student services, Parent seeks an Order that includes:
“Any services ordered should be delivered by providers of the Parents’ choice for “enhanced market rates” that are necessary to ensure that the Student works with appropriate providers and consistent with the rates paid by the DOE’s Impartial Hearing Implementation Unit to the providers pursuant to hearing orders.” (Ex A 12-13)
Regarding rates for services, reasonable market rates are Ordered below, which has served to ensure reasonable payment to each of the Students service providers.
Parent did engage [REDACTED], via Contract, to deliver 1:1 Special Education services, at an enhanced market rate. (Ex VIII)
This rate was eventually identified as $195.00 per session. (Ex Z 6)
Hearing Officer‘s Finding of Fact & Decision
ORDER
1. The Department of Education (DOE) failed to offer the Student a FAPE for the 2022- 2023 school year.
2. An appropriate Student program, for the 22-23 school year, includes, a 12 month school year, and unless otherwise noted, direct funding by the DOE, inclusive of:
a. [REDACTED] ([REDACTED]/UP), 10 month program, via reimbursement to Parent;
b. Occupational Therapy, Ratio and Frequency 2 x 30, 10 months, provided by district and/or arranged for by district at [REDACTED] (UP)/or via
RSA;
c. Speech-Language Therapy, Ratio and Frequency 1x30 1:1, 10 months, provided by district and/or arranged for by district at [REDACTED]
(UP)/or via
RSA;
d. Speech-Language Therapy, Ratio and Frequency 1x30 Group, 10 months, provided by district and/or arranged for by district at [REDACTED] (UP)/or via RSA;
e. Transportation, to and from [REDACTED] (UP), with Reimbursement to Parent – 10 month school year;
f. 1:1 Special Education Teacher Services, 10 hours per week, 12 month school year;
g. 1:1 ABA, 25 hours per week– 12 month school year;
h. A BA Supervision, 2 hours per week, - 12 month school year.
3. The DOE shall fund compensatory services for the Student, to be utilized by 12/31/2024, via Parent chosen provider(s), at reasonable market rate(s), as detailed below.
The DOE shall have until 07/14/2023 to provide Parent Attorney with a calculation of sessions and services provided to the Student since 07/01/2022, and if not provided Hearing Officer‘s Finding of Fact & Decision shall authorize the entirety of services as detailed below, including at c, d & e:
a. 1000 hours of individual ABA services (25 x 40 weeks);
b. 80 hours of ABA supervision (2x40 weeks);
c. 400 1:1 special education teacher services, less any 1:1 special education teacher services provided, since July 1, 2022 (10 hours x 40 weeks);
d. 40 hours of Occupational Therapy (OT), less the number of OT sessions the Student received since July 1, 2022 (2x30x36 weeks); and
e. 40 hours of Speech Language Therapy (SLT), less the number of SLT sessions the Student received since July 1, 2022.
4. The DOE shall reimburse Parent for the cost of Student 22-23 Tuition, for attendance at [REDACTED] ([REDACTED]/UP), in the amount of $[REDACTED];
5. The DOE shall provide Parent with any documents or forms necessary to facilitate
Student services and payment under this Order, within ten days of the date of this
Order.
6. This decision is subject to appeal and review by the State Review Officer.
DATED: 06/28/2023
DANIEL AJELLO
DANIEL AJELLO
Impartial Hearing Officer Hearing Officer‘s Finding of Fact & Decision
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.