NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 241110
Student’s Name: REDACTED
Date of Birth: REDACTED
District: REDACTED
Region: REDACTED
Hearing Requested By: Parents
Dates of Hearing: January 3, 2023
February 7, 2023
March 8, 2023
March 29, 2023
April 7, 2023
April 19, 2023
May 31, 2023
June 27, 2023
June 29, 2023
August 9, 2023
Actual Record Close Date: October 1, 2023
Hearing Officer: Maria R. Dispenza, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
January 3, 2023
For the Student:
REDACTED Parent Attorney/Paralegal
For the Department of Education:
REDACTED DOE District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
February 7, 2023
For the Student:
REDACTED Parent Attorney/Paralegal
For the Department of Education:
REDACTED DOE District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
March 8, 2023
For the Student:
REDACTED Parent Attorney/Paralegal
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
March 29, 2023
For the Student:
REDACTED Parent Attorney/Paralegal
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
April 7, 2023
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
April 19, 2023
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE Attorney
REDACTED CPSE Administrator
NAMES AND TITLES OF PERSONS WHO APPEARED
May 31, 2023
For the Student:
REDACTED Parent Attorney
REDACTED Parent/Mother
REDACTED Parent/Father
REDACTED REDACTED
REDACTED REDACTED
REDACTED Educational Director@ REDACTED
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
June 27, 2023
For the Student:
REDACTED Parent Attorney
REDACTED Parent/Father
REDACTED Educational Director @REDACTED
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
June 29, 2023
For the Student:
REDACTED Parent Attorney
REDACTED Parent/Father
REDACTED Parent/Mother
REDACTED Administrator, REDACTED
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
August 9, 2023
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE Attorney
INTRODUCTION
On December 28, 2022, New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] (“IDEA”) by the parent (Parent) of REDACTED (REDACTED) for the school year 2022/23. The Parent requested the hearing by filing an impartial hearing request with the DOE on or about October 31, 2022. The DPC is carried under New York City (“NYC”) Case No: 241110. The impartial hearing was held over a series of dates, to complete the record on August 9, 2023. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on October 1, 2023. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.
BACKGROUND AND POSITIONS OF THE PARTIES
For the 2022/23 school year REDACTED was a REDACTED year-old classified as “a preschool student with a disability” (Exhibits 1 and 2). He is diagnosed with Autism Spectrum Disorder and Expressive Language Disorder, presents with significant delays in fine motor and gross motor skills, presents with some delays in receptive language, displays with significant delays in expressive communication and communicated largely nonverbally, or by using vowel vocalizations (Exhibits A and 5).
In March, 2022 REDACTED was evaluated at the REDACTED. Said evaluation contained no recommendations for learning supports that would be appropriate and/or necessary for REDACTED, thus the parents also had him evaluated at the REDACTED. Those later findings indicated REDACTED to require individualized support including ABA throughout the school day in a school for students with Autism to make meaningful educational progress as well as parental training with ABA (Exhibits A and 5). Initially Prior to an IEP meeting held on May 12, 2022, Parents shared a copy of the summary letter with the CPSE (Exhibit D). The DOE developed an Individualized Education Program (“IEP”) for REDACTED and recommended that he be placed in a Special 12:1:2 Class, along with related services of Speech Language Therapy (3x30 1:1), Occupational Therapy (3x30 1:1) and Physical Therapy (3x30 1:1) (Exhibit 1). Parents allege that instead of a prior written notice or an official school location letter, they then started receiving calls from different preschool placements and further represent they engaged in conversations and/or visitations of said placements (Exhibits A and II). Subsequently Parents held numerous concerns regarding the recommended placements and as such notified the Department via letter dated July 21, 2022 (Exhibit B) that they intended to place REDACTED at REDACTED (REDACTED) and would be seeking funding and/or reimbursement for the cost of any programming, supports, or services that REDACTED would be receiving privately, unless the Department provided the Parent with an appropriate program and placement before the start of the 2022/23 school year. Therein, the Parent also requested that the Department set up appropriate transportation with all necessary accommodations, including limited travel time and door-to-door transport in a bus with a lift, commencing on the first day of school. The Parents advised the Department that they would seek reimbursement for any transportation costs incurred if the Department failed to provide appropriate transportation (Exhibit A). On September 28, 2022, the Parent provided the DOE with a full copy of REDACTED’s evaluation report from the REDACTED (Exhibit 5), which recommends a full-time ABA program, frequent and intense Speech Language Therapy, Occupational Therapy, Parent Counseling and Training, and substantial 1:1 support in the classroom. At that time, the Parent requested a reconvene of REDACTED’s IEP meeting and one was scheduled for October 13, 2022. During the October 2022 IEP meeting, the Parent and staff from REDACTED’s current placement discussed his needs. The Parents emphasized his need for 1:1 ABA, PROMPT-based Speech Language Therapy (5x45), and Occupational Therapy (5x45) as recommended on the REDACTED’s report. The CPSE recommended the same special education program consisting of 12:1:2 special education classroom with increased Speech Language Therapy (4x30, 1:1), and maintained Occupational Therapy (3x30, 1:1), Physical Therapy (3x30 1:1) and Parent Counseling and Training (1x60,1:1). The Parent and School expressed their disagreement with this program during the October 2022 IEP meeting and thereafter on October 19, 2022 (Exhibits B, N and II), re-emphasizing that REDACTED required full time 1:1-ABA based instruction to address his behavioral needs. Parent alleges the DOE failed to offer REDACTED a Free and Appropriate Public Education (FAPE”) for the 2022/23 school year in that it failed to adequately address REDACTED’s educational needs and failed to provide him with an appropriate program and placement for the 2022/23 school year. Parents filed a DPC and now seek the following relief, including but not limited to: (1). an order that the DOE provide direct and/or prospective funding for any amounts owed to REDACTED, including tuition, related services, and other related costs or fees, at enhanced rates where applicable as a result of REDACTED’s attendance at REDACTED during the 2022/23 school year; (2). an order that the DOE reimburse and/or directly fund the cost of the REDACTED Evaluation Report; and (3). an order that the DOE provide appropriate transportation to and from the REDACTED for as long as may be necessary until such time as the DOE offers an appropriate program and placement, and/or provide reimbursement and/or prospective funding for any private transportation expenses, including expenses for a travel companion, incurred as a result of the DOE’s failure to set up appropriate transportation in a timely manner (Exhibits A and IHO-2).
In an effort to support its allegations, the parent provided thirty-six (36) pieces of evidence (Exhibits A-JJ) and presented five (5) witnesses: REDACTED, Educational Director at REDACTED, REDACTED Administrator at REDACTED, REDACTED, Speech-Language Director at REDACTED, REDACTED, BCBA at REDACTED, and REDACTED, REDACTED’s mother.
The DOE held the position that a FAPE was offered to REDACTED for the 2022/23 school year in that the CPSE convened and held an IEP review (Exhibit 1); the team was properly composed (Exhibit 1); the IEP team relied on a psychological evaluation, a speech-language evaluation, social history, occupational therapy evaluation, and a physical therapy evaluation (T @ 56); the CPSE sought a placement for REDACTED for the 2022/23 school year (T 51-52) and the Parents visited several schools; and the CPSE reconvened on October 13, 2022 at Parent’s request. Based upon the foregoing, the DOE contended it offered an appropriate program for REDACTED.
In effort to support its allegation, the DOE submitted a documentary exhibit package consisting of seven (7) exhibits and presented one (1) witnesses, REDACTED, CPSE Administrator.
FINDINGS OF FACT AND DECISION
The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) was enacted with the primary purpose to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). It is clear that the legislative intent of 20 US Code Section 1412 of the IDEA is to provide a FAPE to all children with disabilities so that these individuals may ultimately lead productive independent lives as adults, to the maximum extent possible (20 U.S.C. Sx 1400[d][1][A]; see Mrs. W v. Tirozzi, 832 F.2d 748 [2nd Cir. 1987]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22). An IEP is designed as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]). A FAPE is offered to a student when the board of education (a) complied 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 (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]). The IDEA mandates that a student with a disability be provided with a FAPE tailored to meet his unique needs and one that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___, 137 S.Ct.988, 999 (2017). A focus on the particular child is at the core of the IDEA. Endrew F., 137 S.Ct. at 999. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child’s strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student’s requirements and needs, the team must review and consider evaluations, assessment and information provided by the child’s parents, teachers and service providers and thereon determine the type of program required for the child. A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank R. and Dianne R. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank R.,2007 WL 2982269 [Oct. 15, 2007].
The case at hand is a tuition reimbursement case and is therefore governed by the holding of the U.S. Supreme Court in Burlington School Comm. v. Dept of Education (471 U.S. 359 [1985]). That case set forth a three-prong test for determining if tuition reimbursement is warranted: (1) were the services offered by the school district inadequate or inappropriate; (2) where the services selected by the parents appropriate; and (3) do equitable considerations support the parents’ claim. Recently enacted state legislation puts the burden of proof for the first prong on the school district and for the second prong on the parent (Chap. 583 of Laws of 2007).
Prong I:
An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs. Application of a Child with a Disability, Appeal No 93-12; Application of a Child with a Disability, Appeal No 93-9; Application of a Child with a Handicapping Condition, Appeal No 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487, March 11, 1983. Children must be assessed “in all areas of suspected disability” using “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information.” See 20 U.S.C. §1414(d); 34 C.F.R. § 10 (emphasis added). “An observation of the student in the student’s learning environment ... to document the student’s academic performance and behavior in the areas of difficulty” is also required (see 8 N.Y.C.R.R. § 200.4[b][1][iv]; 20 USC § 1414(b)(3)(ii)). In interpreting evaluation data for the purpose of determining if a student is a student with a disability ... the committee on special education and other qualified individuals must draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the student’s physical condition, social or cultural background, and adaptive behavior; and ensure that information obtained from all these sources is documented and carefully considered (see 8 N.Y.C.R.R. § 200.4[c][1] (emphasis added)). In the case of a student whose behavior impedes his or her learning or that of others, the CSE is required to consider strategies, including positive behavioral interventions, and supports and other strategies to address that behavior (see 8 N.Y.C.R.R. § 200.4[d][4]).
In the instant matter, the DOE presented one witness REDACTED, CPSE Administrator in an effort to support a provision of FAPE to REDACTED for the 2022/23 school year. REDACTED testified in support of the DOE’s position that the IEP team made an appropriate recommendation with appropriate goals for REDACTED based on the evaluations; however, she could not address upon inquiry on cross-examination as to how the recommendation would address his educational needs and weaknesses (T @ 55-58). REDACTED further explained that ABA was not included in the IEP because it is a methodology, not a service (T @ 65) in support of the DOE’s contention that while an IEP must provide for specialized instruction in a student’s areas of need, the IDEA does not explicitly require a CSE to specify methodology on an IEP, and the precise teaching methodology to be used by a student’s teacher is generally a matter to be left to the teacher. Application of a Student with a Disability, Appeal No. 12-020; Application of a Student with a Disability, Appeal No. 12-017; Application of a Child with a Disability, Appeal No. 07-052. In addition, REDACTED testified that the team considered a classroom of 8 students but rejected it because it was too “small” or “restrictive” (T @ 50, 58-59). She explained that the evaluations used to create REDACTED’s IEP suggested his skills were appropriate for a classroom of 12 (T @ 58-59); however, she also admitted to reviewing an evaluation report which specifically recommended “a full-day intensive and high-quality one-to-one program” (T @ 66-67, Exhibit 5). REDACTED acknowledged the team also reviewed the finalized report (Exhibit L) (T @ 66-67) which explicitly states that “regardless of the setting”, REDACTED’s early intervention program must include: ABA, Speech Language Therapy, Occupational Therapy, and 1:1 support (Exhibit. L); that the Parents emailed her multiple times about the need for ABA (T @ 63) and submitted a diagnostic report from a developmental pediatrician recommending a speech and language therapy increase and recommending ABA before the October 2022 IEP reconvene meeting (T @ 64).
While Parent acknowledged that as long as any methodologies referenced in a student's IEP are "appropriate to the [student's] needs," the omission of a particular methodology is not necessarily a procedural violation (R.B., 589 Fed. App'x at 576 [upholding an IEP when there was no evidence that the student "could not make progress with another methodology"], citing 34 CFR 300.39[a][3] and R.E., 694 F.3d at 192-94), Parent contended that where the use of a specific methodology is required for a student to receive an educational benefit, the student's IEP should so indicate (see, e.g., R.E. v. NYC Department of Education, 694 F.3d 167, 194 (2012) [finding an IEP substantively inadequate where there was "clear consensus" that a student required a particular methodology, but where the "plan proposed in [the student's] IEP" offered "no guarantee" of the use of this methodology]) (IHO-2). If the evaluative materials before the CSE recommend a particular methodology, there are no other evaluative materials before the CSE that suggest otherwise, and the school district does not conduct any evaluations "to call into question the opinions and recommendations contained in the evaluative materials," then, according to the Second Circuit, there is a "clear consensus" that requires that the methodology be placed on the IEP notwithstanding the testimonial opinion of a school district's CSE member (i.e. school psychologist) to rely on a broader approach by leaving the methodological question to the discretion of the teacher implementing the IEP (A.M. v. New York City Dep't of Educ., 845 F.3d 523, 544-45 [2d Cir. 2017]). The fact that some reports or evaluative materials do not mention a specific teaching methodology does not negate the "clear consensus" (R.E., 694 F.3d at 194) (IHO-2).
Herein, Parent witness REDACTED, Educational Director at REDACTED testified to corroborate that REDACTED requires motivation through ABA otherwise he engages in maladaptive behaviors to include throwing things, frustrations and flopping (T @ 241). Herein, Parent alleges that despite the clear consensus by all experts, REDACTED and the IEP team, none of whom had ever met the student or interacted with REDACTED, opted against recommending ABA as part of his program because it is a “methodology” and they “do not put it on the IEP” as it’s a “strategy a school can use but it is not a service” (T @ 65). The IEP team did not recommend ABA and 1:1 instruction and support despite a consensus indicating that it was necessary for REDACTED to learn and progress (T @ 246). The record and DOE testimony fail to indicate the IEP team conducted or relied on any other evaluative data to make recommendations for the 2022/23 school year.
Parent further alleges and the record supports REDACTED also needed PROMPT-based Speech and Language Therapy because his mouth is very low toned and his speech “fully unintelligible” (T @ 249) and that despite REDACTED’s intense expressive language needs, the IEP team did not recommend any specialized form of Speech and Language Therapy for him. Parent highlights that once again this decision was made not because the student did not need it or because the DOE had some conflicting evaluation report that contradicted this need.
Lastly, the record reflects that while the Parent received calls from several preschools which they explored, no school location letter was ever issued (Exhibit II). The Parents notified the DOE of their concerns with the placements they reviewed/visited (Exhibits F, G, H, I, J and K) particularly that the recommended pre-schools did not use ABA, nor did they provide 1:1 attention and supervision which were deemed essential for REDACTED (Id. and T @ 52).
Upon due consideration of the aforementioned, I find the DOE failed to meet its burden of showing it provided a FAPE to REDACTED for the 2022/23 school year by providing an appropriate IEP and placement for REDACTED, resulting in a finding of a FAPE denial. The Parents have met the first of the three Burlington/Carter criteria for tuition reimbursement.
Prong II:
Having determined that the DOE did not offer the student a FAPE for the 2022/23 school year, I now proceed to evaluating the appropriateness of the parents’ unilateral placement of the student at REDACTED. The parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch Dist Four v. Carter 510 U.S. 7 [1993]). The private placement need not employ certified special education teachers, Carter, supra. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of the 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 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 documentary evidence and testimony in this case establishes that REDACTED is a small private institution dedicated to the education of children with Autism Spectrum Disorder who require highly individualized, ABA-based instruction in order to learn and is used to deliver the entire curriculum ( Exhibit. Q). REDACTED testified that according to research, ABA is the only evidence-based practice for children on the autism spectrum where significant behavioral, social, academic, or adaptive changes occur stating:
“With children diagnosed with autism, the research shows -- and one of the only evidence-based practices used for children on the autism spectrum, according to the research, is applied behavior analysis, where you see the most significant changes of a child or person's life behaviorally, socially, academically, adaptive skills” (T @ 240); further asserting:
“So as of right now, the methodology for him has been successful. He is learning using ABA” (T @ 241).
According to the testimony of REDACTED, REDACTED created an individualized program tailored on REDACTED’s particular needs, including social and receptive aspects, teaching expressive language, play skills, group skills.
In the case at hand, the DOE cross-examination of parent witnesses did not generate a material challenge to parent assertions as to the appropriateness of the student’s unilateral placement. Contrarily, the evidence and testimony presented by the parent supports that REDACTED provided a rich supportive environment that correlated well with REDACTED, that the curriculum was specifically tailored to meet REDACTED’s needs and that he received a highly individualized instruction that enabled him to make appropriate progress. I find that REDACTED made meaningful progress at REDACTED for the 2022/23 school year across the board: academically, socially and emotionally. The evidence and testimony presented by the parent supports that REDACTED was an appropriate placement for REDACTED during the 2022/23 school year and was “specifically designed to meet the unique needs” of the student Frank G, supra and that REDACTED has made progress therein (Exhibits CC-FF and II, T @198-219).
However, the DOE did generate a material challenge as to the accuracy of the records as to REDACTED’s attendance correlating to billing for services allegedly rendered (Exhibits S, T and IHO-1, T @ 259-263, 295-296). The DOE brought forth that the cost for REDACTED operated on a center-based, fee-for-service financial model during the 2022/23 school year (T @ 250-251). REDACTED, Administrator at REDACTED, testified that the average monthly cost for REDACTED is $26,215.90 (T @ 284, Exhibit JJ). The DOE established that Parent’s own documents contained multiple inconsistencies in the services records. For instance: REDACTED was marked absent on July 22, 2022 and the session logs contain two entries for services (Exhibit T and S); REDACTED was marked absent August 12, 2022 and the session logs contain seven entries for services (Exhibit T and S); REDACTED was marked absent on October 21, 2022 and the session logs contain nine entries for services (Exhibit T and S); additionally, the Parent’s own records indicate the student went home early on March 14, 2023 and yet, there is a session logged after the student left early (Exhibit X and S). While the DOE contends these are only the discrepancies that were easily identified it is entirely possible there are other discrepancies in the records and zero guarantee as to the accuracy of the billing or service records (IHO-1), none other were brought forth in an evidentiary manner at hearing.
REDACTED, acknowledged issues with billing during his testimony (T @ 281-296). Subsequent to resting the presentation of its case at hearing, Parent offered an additional affidavit of REDACTED explaining costs for the 2022/23 school year and correcting the previously noted inconsistencies. However, the DOE representative’s objection to the admission of this document was sustained. Said subsequent affidavit is not deemed credible.
In consideration of the foregoing, I find that the award issued Parent is to be reduced to account for the aforementioned proven discrepancies as the DOE is to only fund REDACTED’s services upon proof of actual services rendered to REDACTED.
Neuropsychological Evaluation: The DPC also sought relief to include funding for an independent neuropsychological evaluation. Parent alleged the CSE team failed to collect adequate and appropriate data on which to base its recommendations for the 2022/23 school year and that the Parent obtained and provided the team with an independently obtained neuropsychological evaluation (Exhibits A, 5, and II, T @ 272-273). A parent has the right to request an independent educational evaluation (“IEE”) at public expense if the parent disagrees with the school district’s evaluation. 34 CFR 300.502(b)(1); 8 NYCRR 200.5(g). If a parent requests an IEE at public expense, the school district must, without any unnecessary delay, either (1) initiate a hearing under 34 CFR 300.507 to show that its evaluation is appropriate, or (2) ensure that an IEE is provided at public expense. 8 NYCRR 200.5(g)(1)(iv).
Herein, the DOE failed to raise any dispute to said requested reimbursement relief and as such, same is granted.
Transportation
Parent requested the DOE provide appropriate transportation to and from the REDACTED for as long as may be necessary until such time as the DOE offers an appropriate program and placement, and/or provide reimbursement and/or prospective funding for any private transportation expenses, including expenses for a travel companion, incurred as a result of the DOE’s failure to set up appropriate transportation in a timely manner.
Herein, the DOE failed to raise any dispute to said requested reimbursement relief and as such, same is granted.
Prong III:
Having found REDACTED an appropriate placement, I now consider equitable considerations, the final criterion for a reimbursement award. In weighing the equities, “the critical consideration, as the Court sees it, is whether they have cooperated in good faith to attempt to develop an IEP to the maximum extent possible, Schaffer, supra. Herein, the DOE argues the equities do not favor the parent as they have alleged no facts, nor provided evidence or testimony, which would support any relief or decision in their favor as an equitable matter and that in fact, the equities favor the DOE (Exhibit IHO-1).
I find that indications are that the Parent cooperated with the DOE and did not interfere with the DOE’s obligation to provide a FAPE for the 2022/23 school year. Particularly, the Parents initiated for and attended two IEP meetings for the 2022/23 school year and indicated their intent on exploring DOE ABA programs with 1:1 instruction (Exhibit II). REDACTED staff provided REDACTED’s updated progress reports and goals (Exhibit CC, EE). The Parent contacted and/or visited the preschools suggested by the DOE and determined same not appropriate and/or unable to implement the recommended program (Exhibit II). While parents expressed disagreement with the CSE program recommendation for the 2022/23 school year, that alone does not constitute bad faith. Further, Parent provided timely notice that they were rejecting the DOE’s program and enrolling REDACTED at REDACTED (Exhibits B and N).
This case involves a situation where the Parent’s financial circumstances limit their ability to make payment to REDACTED (Exhibits HH and II). Established case law warrants a finding that under such circumstances a school district must pay the monies owed, assuming parent’s claim is meritorious with regard to the three Burlington factors. In Conners v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y.) at 805, the court reasoned:
“By prohibiting prospective placement, Defendants would deny assistance to families that are not able to front the cost of a private, non-approved school, without exception…Given the fragile state of many disabled children, and their dire need for constant and consistent care, even brief periods of inappropriate schooling could lead to tremendous educational, social, emotional and psychological deterioration. Families of greater economic means would not be faced with such a grim prospect. It simply cannot be the case that an act designed to grant “all” disabled children access to needed services could undermine that very goal by making such access dependent upon a family’s financial situation.”
I find (1). that the DOE failed to offer the student a FAPE for the 2022/23 school year, (2). that the unilateral placement of the student at REDACTED was appropriate (3). that the program at REDACTED was “reasonably calculated” to provide REDACTED with meaningful educational benefits and (4). that equitable considerations weighed in favor of the parents’ request for reimbursement of actual costs associated with the placement of the student at the REDACTED for the 2022/23 school year.
ORDER
Therefore, it is hereby ordered
1. Within thirty (30) days of receipt of this Order the Department of Education shall, upon proof of services rendered to the student, directly fund/reimburse the costs for services actually rendered to the student at REDACTED for the 2022/23 school year at reasonable market rates. The award is to take into account the aforementioned proven discrepancies in record keeping;
2. The DOE shall within 30 days provide reimbursement for the cost of the neuropsychological evaluation of the student conducted at the REDACTED in the amount of $6,420.00 (Exhibit KK); and
3. The Department of Education shall provide appropriate transportation to and from the REDACTED.
All reimbursements and direct funding shall be supported by the presentation of appropriate documentation.
Dated: October 4, 2023
Maria R. Dispenza
MARIA R. DISPENZA, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
PLEASE TAKE NOTICE
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
DOCUMENTATION ENTERED INTO THE RECORD ON April 19, 2023
1. DOE: IEP, 05/12/22 –18pp DOE
2. IEP, 10/13/22 –18pp DOE
3. Prior Written Notice, 10/13/22 -3pp DOE
4. Final Notice of Recommendation, 10/13/22 –1pp DOE
5. REDACTED Evaluation, 08/10/22 –28pp 6. SESIS Events Log, 04/26/22 to 3/29/22 –5pp DOE
7. Email Parent to CPSE, 09/07/22 –1pp DOE
DOCUMENTATION ENTERED INTO THE RECORD ON May 31, 2023
A. Parent: Due Process Complaint, 10/31/22 -12pp
B. Ten Day Notice with CSE 7 & 6 Confirmations, 07/21/22 -5pp
C. DOE IEP, 05/12/22 -18pp
D. Letter to CPSE/ REDACTED Report Summary, 06/08/22 - 6pp
E. Emails with CPSE re: IEP Scheduling & Pre-k Placement, Various -5pp F. Emails - CPSE & Brooklyn Daily Discovery re: Pre-K Placement, 05/16/22 -2pp
G. Further Emails with CPSE re: IEP Scheduling & Pre-k Placement, 06/12/22 -2pp H. Emails with CPSE re: REDACTED, 07/07/22 -2pp I. Emails with CPSE re: REDACTED, July 2022 2pp J. Emails with CPSE re: Placements w/ ABA, 07/29/22 -2pp K. Emails with CPSE & Pre-K Center re: Placement & Need for ABA & PROMPT - SLT; Various -3pp
L. Email to CPSE re: REDACTED Full Evaluation Report and Request for IEP Reconvene, 09/28/22 -29pp
M. DOE IEP (Reconvene), 10/13/22 -18pp
N. Prior Written Notice, 10/13/22 -3pp
O. Letter to CPSE + CSE re: IEP Concerns, 10/19/22 -3pp
P. REDACTED Enrollment Contract, 2022/23 -8pp
Q. REDACTED Program Description, 2022/23 -1pp R. REDACTED Service Affidavits for July 2022 – April 2023, 2022/23 -10pp S. REDACTED Session Logs for July 2022 – April 2023, 2022/23 -26pp
T. Attendance Record, 05/23/23 -1pp
U. Class Schedule, 2022/23 -1pp
V. REDACTED Educational Assessment via ACE 7 Core Skills, 2022/23 -7pp
W. REDACTED Student Program Document: Behavioral Intervention Plan, 2022/23 -2pp
X. REDACTED Student Program Document: Daily Data on Behaviors, 03/13/23 -2pp
Y. REDACTED Student Program Document: Teacher Schedule Data Sheet, March 2023 -1pp
Z. REDACTED Student Program Document: Toileting Data January/February, 2023 -1pp
AA. REDACTED Student Program Document: Plans, 2022/23 -79pp
BB. REDACTED Student Program Document: Data, 2022/23 -89pp
CC. REDACTED Student Program Document: Educational Progress Report, 2022/23 -10pp
DD. REDACTED Student Program Document: Occupational Therapy Evaluation 2022/23 -12pp
EE. REDACTED Student Program Document: Occupational Therapy Progress Report, March 2023 -3pp
FF. REDACTED Student Program Document: Language Therapy Evaluation 2022/23 -11pp HH. Parent Federal Tax Return (1040), 2021 -3pp
II. Affidavit of REDACTED, 05/23/23 -5pp
JJ. Affidavit of REDACTED, 05/24/23 -4pp
KK. REDACTED Evaluation Invoice, 05/24/23 -1pp
DOCUMENTATION ENTERED INTO THE RECORD ON August 9, 2023
IHO:
IHO-1. DOE Closing Brief, 08/09/23 -10pp
IHO-2. Parent Closing Brief, 08/09/23 -13pp
Footnotes
[279] and model forms are available at http://www.sro.nysed.gov.