New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 590337 - NYC: 241268

FINDINGS OF FACT AND DECISION

Case Number: 241268

Student’s Name: [redacted] (“Student”)

Date of Birth: [redacted]

School District: REDACTED

Hearing Requested by: [redacted] (“Parent”)

Request Date/Date Complaint Filed: 11/02/2022

Date(s) of Hearing: 12/14/2022

12/27/2022

01/11/2023

Actual Record Closed Date: 01/19/2023

Date of Decision: 01/24/2023

Date of Distribution if Different than Decision Date: same

Hearing Officer: Andrea R. Cohen, Esq.

NEW YORK CITY DEPARTMENT OF EDUCATION

IMPARTIAL HEARING OFFICE

In the matter of

Student, [redacted], a minor, by and through the Student’s Parents,

Petitioners,

- against –

New York City Department of Education

Respondent.

IHO Case No. 241268

Final Decision and Order

Andrea R. Cohen

Impartial Hearing Officer

Greetings:

JURISDICTION

This Final Decision And Order in the matter of [redacted] (“Student”) by and through his Parent against the New York City Department of Education is rendered upon consideration of Petitioner’s Due Process Complaint (“Complaint”); prior proceedings in this matter and the federal Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

• • INTRODUCTION AND PROCEDURAL HISTORY
• • INTRODUCTION

This matter was commenced on behalf of Student, a student with a disability, by and through his Parent, on 11/02/2022 by filing the Compliant against the DOE pursuant to the IDEA and New York Law.

Student and his Parent will be referred to collectively as “Petitioners.” The New York City Department of Education will be referred to “Respondent,” “District,” or “DOE”.

Petitioners’ allegations and requests for remedies in this matter relate to the 2022/2023 extended school year (“ESY”). Petitioners allege that the DOE failed to provide Student with a FAPE in that it failed to appropriately evaluate Student; failed to provide a translator for Parent, thus denying Parent an opportunity to participate is Student’s IEP; and failed to provide a free and appropriate ESY placement and location for Student. Parent asserts that, because of these failures, Parent enrolled student in the [Private School] (“Private School”). Parent seeks remedy of, inter alia, evaluations, and direct payment of tuition and transportation.

DOE made no response to Petitioners’ Complaint. It failed to file a notice of appearance and failed to appear on any of the hearing dates.

PROCEDURAL HISTORY

This Hearing Officer was appointed to preside over this case on 09/10/2021.

I convened a hearing on 12/14/2022 to determine the education and services to be provided during the pendency of this matter and issued a Decision on Pendency dated 12/15/2022 in which I held that:

• • The educational plan set forth in the unappealed 10/11/2022 FOFD in case # 226247, dated 10/11/22, is the educational plan to be followed during the pendency of this matter; ^[1]
• • The 10/11/2022 FOFD does require the DOE to provide to Student:
• • funding for REDACTED tuition at [Private School] for the 10-month 2021/2022 school year, including paraprofessional services, at a rate not to exceed $112,300
• • The DOE is required to provide these services to Student during the pendency of this dispute, retroactive to November 2, 2022, (the date Parent’s Complaint was filed).

Hearing on the merits commenced on 12/27/2022 and concluded on 01/11/2023. It was a closed hearing. The DOE failed to provide an interpreter which had been requested at the time the matter was set for hearing. Parent agreed to go forward with her daughter, REDACTED, as Interpreter.

The DOE filed no notice of appearance and failed to appear on each date.

Petitioners entered Exhibits A-ZZ into evidence on 01/11/2023 and submitted a Closing Brief on 01/17/2022.

The DOE never appeared and entered no exhibits into evidence. No post-hearing papers were received from the DOE.

All hearings were conducted remotely and Covid-19 protocols were observed.

The record was closed on 01/19/2023.

• • Background The Student is an REDACTED year-old boy diagnosed with Autism Spectrum Disorder, Level 3 (Severe), Social Pragmatic Language Disorder, Attention Deficit/Hyperactivity Disorder, and Specific Learning Disorders with impairment in reading and written expression (Severe). (Ex. T 25). He has been determined to be eligible for special educational services for several years and continued to be eligible during the pendency of this dispute.

Student attends Private School. He attended Private School for the 2019/2020, 2020/2021, and 2021/2022 school years and, for each of those years, the DOE has been Ordered to fund Student’s attendance for an ESY at Private School.^[2]

This dispute relates to the 2022/2023 school year.

Petitioners’ Position, Relief Sought And Evidence For the 2022/2023 school year:

• • The DOE failed to provide Student with a FAPE in that it:
• • failed to appropriately evaluate Student;
• • failed to provide a translator for Parent, thus denying Parent an opportunity to participate is Student’s IEP; and
• • failed to provide a free and appropriate ESY placement and location for Student.
• • Because of these failures, Parent enrolled student in Private School; Private School has provided Student with an appropriate education.
• • Equitable considerations favor Petitioners. There is no cause for a reduction of remedy.
• • Petitioners seek the following remedies:
• • a DETERMINATION that (1) the New York City Department of Education failed to offer and to provide to the Student a free appropriate public education for the 2022-2023 school year; (2) the [Private School] program in which the Parent placed the Student for the 2022- 2023 school year was appropriate; and (3) there exists no equitable bar to full and direct payment to [Private School] of the Student’s non-public school tuition for the 2022-2023 school year;
• • an ORDER directing the Department of Education to pay directly to [Private School] the Student’s tuition for the 2022-2023 school year and to make such payment directly for the now completed Summer 2022 and Fall 2022 program within sixty (60) days of its receipt of the Hearing Officer’s decision; and an order directing payment for the remainder of the 2022-2023 school year.
• • an ORDER directing the Department of Education to continue to provide to the Student transportation between home and school as a related service through the end of the2022- 2023 school year.
• • an ORDER requiring the Department of Education to complete an adaptive physical education evaluation; to complete such evaluations within sixty (60) days of receipt of the Hearing Officer’s decision;
• • an ORDER requiring the Department of Education to convene a meeting of the Student’s IEP team to consider the above-mentioned adaptive physical education evaluation, the May 2, 2022, neuropsychological evaluation, and all current evaluations, in order to develop an IEP that addresses the Student’s current educational needs.
• • An ORDER directing the Department of Education to provide the services of a Spanish- English interpreter to facilitate the Parent’s participation in the IEP meeting ordered above in item 5.
• • An ORDER directing the Department of Education to provide to the Parent a Spanish-language translation of the IEP developed at the IEP meeting ordered above in item 5.

Exhibits

A-ZZ, entered into evidence on 01/11/2023.

Witnesses –

Parent, [redacted], provided testimony by affidavit (Ex. VV, dated 12/29/2022) and was available for cross examination on 01/11/2023. Ex. VV is comprised of certified copies of Parent’s affidavit translated into Spanish and English. (Ex. VV, p. 4).

Petitioners produced two additional witnesses, each of whom was available for cross examination on 01/11/2023:

Principal of Private School (“Principal”), [redacted], testified by affidavit, Exhibit XX, dated 12/20/2022.

The Psychologist (“Psychologist”), who conducted Student’s 05/02/2022 Neuropsychological Evaluation, [redacted], Ph. D., testified by affidavit, Exhibit YY, dated 01/03/2023.

The DOE’s Position, Relief Sought And Evidence

DOE made no response to Petitioner’s Complaint. It failed to file a notice of appearance and failed to appear on any of the hearing dates.

It presented no witnesses, exhibits, arguments or closing brief to rebut Petitioners’ assertion that the DOE failed to provide Student with a FAPE during the 2021/2022 school year.

• • Issues

Whether or not:

• • The DOE provided Student with a FAPE for the 2022/2023 extended school year;
• • Private School can provide an appropriate education to Student;
• • Petitioners are to be granted an award of reimbursement/direct payment of Student’s tuition and Student’s transportation costs relating to Student’s attendance at Private School.
• • Equitable considerations support a reduction of any remedy awarded.
• • Statement of Law
• • FAPE
• • FAPE - GENERALLY

The Individuals with Disabilities Education Act (“IDEA”) provides that a child with a disability is entitled to a free and appropriate public education (“FAPE”), and ensures that included special education and related services are designed to meet “their unique needs to prepare the child for further education, employment, and independent living.” ^[3] The FAPE providing this individualization must also conform to an individualized education program (“IEP”). ^[4]

The DOE bore the burden of production and persuasion to establish that it provided the Student with a FAPE for all of the school years at issue, as well as all other issues alleged in the DPC, except for the appropriateness of the private school, to which the Parent bore the burden of proof. ^[5]

A student is provided a FAPE when (a) the board of education complies with the IDEA’s procedural requirements, and (b) provides an IEP that is: “’likely to produce progress, not regression’ and if the IEP affords the student with an opportunity greater than ‘mere trivial advancement.’” ^[6]; is substantively appropriate – i.e., it is reasonably calculated to enable the child to receive educational benefits.^[7]

A district court in evaluating whether a district has met its obligation, must examine the record for “objective evidence” of whether a child is likely to progress or regress under a proposed plan. ^[8]

Under the IDEA, a district may be required to consider special factors in the development of a student’s IEP, including whether behavior impedes his learning or that of others. ^[9] Where such behavior may impede learning, the district may consider having a functional behavior assessment (“FBA”) conducted and a behavioral intervention plan (“BIP”) developed for a student. ^[10]

The IEP must be reviewed periodically, but not less than annually, to determine whether the annual goals for the child are being achieved. ^[11] The IEP must be revised to address: 1) any lack of expected progress toward the annual goals and in the general education curriculum, if appropriate; 2) the results of any reevaluation; 3) information about the child provided to, or by, the parents; the child’s anticipated needs; or other matters. ^[12]

The LEA must ensure that the IEP team revises the IEP, as appropriate, to address any lack of expected progress toward the annual goals and to address the results of any reevaluation or information about the child provided to, or by, the parents. ^[13]

It is the DOE’s statutory obligation to provide appropriate placement and services recommendations in the IEP. Moreover, it is the DOE’s responsibility to procure the recommended services for the student and offer an actual spot in a specified classroom. ^[14]

The Supreme Court has found that, while deference is due to decisions of school authorities, “A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” ^[15]

An IEP, on its own, does not establish that a FAPE has been offered to a student; instead, “testimony may be received that explains or justifies the services listed in the IEP.” ^[16] A district does not meet its burden of proof to demonstrate that sufficient evaluative material was relied upon in creating the student’s educational program without testimony presented to that effect. ^[17]

• • FAPE - EVALUATIONS

An evaluation means procedures used in accordance with 34 C.F.R. §§ 300.304 through 300.311 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs.^[18]

In conducting the evaluation, the district must use a variety of tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the parent, to determine whether the child is eligible and, if so, the content of the child’s IEP. ^[19] The evaluation must be sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category. ^[20]

As noted above, under the IDEA, a district may be required to consider special factors in the development of a student’s IEP, including whether behavior impedes his learning or that of others. ^[21] Where such behavior may impede learning, the district may consider having a functional behavior assessment (“FBA”) conducted and a behavioral intervention plan (“BIP”) developed for a student. ^[22]

A reevaluation must occur at least once every three years, unless the parent and the LEA agree that a reevaluation is unnecessary. ^[23] A reevaluation of a child with a disability must occur when conditions warrant or if the parent or teacher requests a reevaluation. ^[24]

The LEA must ensure that the IEP team revises the IEP, as appropriate, to address any lack of expected progress toward the annual goals and to address the results of any reevaluation or information about the child provided to, or by, the parents. ^[25]

The IDEA mandates that an IEP be based on the results of the most recent evaluation of a student.^[26]

If the parent obtains an independent educational evaluation (“IEE”) at public expense, or shares with the public agency an evaluation obtained at private expense, the evaluation (1) must be considered by the LEA if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child; and (2) may be presented by any party as evidence at a hearing on a due process complaint under subpart E of this part regarding that child. 34 C.F.R. § 300.502(c)

Under federal and state regulations, if a parent requests an IEE at public expense because the parent disagrees with the school district’s evaluation, the school district must, without unnecessary delay, either (1) file a due process complaint to request a hearing to show that its evaluation is appropriate or (2) ensure that the requested IEE is provided at public expense, unless the district demonstrates at an impartial hearing that the evaluation obtained by the Parent did not meet the district’s criteria.^[27] Where the DOE fails to take any action, the parent has the right to seek reimbursement for the requested evaluations. ^[28]

A student is entitled to only one independent educational evaluation at public expense each time the DOE conducts an evaluation with which the family disagrees. ^[29]

• • FAPE - RELATED SERVICES

The Individuals with Disabilities Education Act (“IDEA”) provides that a child with a disability is entitled to a free and appropriate public education (“FAPE”), and ensures that included special education and related services are designed to meet “their unique needs to prepare the child for further education, employment, and independent living.” ^[30] The FAPE providing this individualization must also conform to an individualized education program (“IEP”). ^[31]

• • Under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400- 1482, related services are defined as:

20 U.S.C. § 1401(26) Related services (A) In general The term “related services” means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.

The definition is not meant to be exclusive and may cover unlisted services such as music therapy. Letter to Farbman, 34 IDELR 7 (OSEP 2000).

• • RELATED SERVICES: TRANSPORTATION

Appropriate transportation can be an essential element of an IEP. The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400- 1482, sets forth a broad spectrum of services and as well as a definition of Related Services, specifically including transportation:

• • Under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400- 1482, related services are defined as:

20 U.S.C. § 1401(26) Related services (A) In general The term “related services” means transportation, …

• • RELIEF/REMEDIES
• • REMEDIES - GENERALLY

In any action brought under the IDEA, the trier of fact “shall grant such relief as the court determines is appropriate.” ^[32] The relief must be appropriate in light of the purpose of the Act. A court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies. ^[33]

“In enacting the IDEA, Congress did not intend to create a right without a remedy.” ^[34] “Courts retain broad discretion in fashioning an award, restrained only by the Supreme Court’s directive that ‘the relief is to be “appropriate” in light of the purpose of the Act.’” ^[35]

OSEP advises that, “based upon the facts and circumstances of each individual case, an impartial hearing officer has the authority to grant any relief he/she deems necessary, inclusive of compensatory education, to ensure that a child receives the FAPE to which he/she is entitled.” ^[36] New York law provides that a state-approved nonpublic school is a permissible placement for a school district to make on a student’s IEP upon a showing of, inter alia, detailed evidence of the student's lack of progress in previous less restrictive programs and placements. ^[37]

• • REMEDIES - TUITION REIMBURSEMENT

The United States Supreme Court established a three pronged test to determine whether school district may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent: (1) were the services offered by the board of education inadequate or inappropriate, (2) are the services selected by the parent appropriate, and (3) do equitable considerations support the parent's claim. ^[38]

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate.” ^[39]

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). Parents “are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education.” Frank G., 459 F.3d at 364 (citing 20 U.S.C. § 1401(9)); see also Carter, 510 U.S. at 12-14. An appropriate private placement need not meet state education standards or provide certified special education teachers or prepare its own IEP for the student. (see Frank G., 459 F.3d at 364; Carter, 510 U.S. at 13 (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). See Application of a Student with a Disability, Appeal No. 11-041).

In order to meet this burden, parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G. v. Bd. of Educ., 459 F.3d 356,364 [2d Cir. 2006]).

When determining whether the parents’ unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefit,” ^[40] i.e., whether it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” ^[41] In the Second Circuit, no single factor is dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Rather, the totality of circumstances must be reviewed and assessed in determining whether a placement reasonably serves a child’s individual needs. ^[42]

• • REMEDIES - RELATED SERVICES

The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400- 1482, sets forth a broad spectrum of services and as well as a definition of Related Services, including transportation:

20 U.S.C. § 1401(26)

Related services (A) In general The term “related services” means transportation, and such developmental, corrective, and other supportive services … as may be required to assist a child with a disability to benefit from special education ….

EQUITABLE CONSIDERATIONS

To prevail on a claim for tuition reimbursement, “equitable considerations [must] support the parents’ claims.” Burlington, 471 U.S. at 370, 374; Carter, 510 U.S. at 16. Tuition reimbursement may be “reduced or denied... upon a judicial finding of unreasonableness with respect to actions taken by the parents.” 20 U.S.C. § 1412(a)(10)(c)(iii)(III).

Case law in New York has applied a balancing of the equities in terms of reducing or eliminating an award in cases of net unreasonable parental conduct.^[43]

The IDEA provides that the private school costs may be reduced or denied if (1) at the most recent IEP meeting, the parents did not inform the District that they rejected the District’s proposed IEP and intended to enroll their child in a private program, (2) did not provide notice to the District at least 10 business days before removing their child from the public school that they disagreed with the IEP and intended to place their child privately, (3) if the District asked the parents to evaluate during the “notice period” and the Parents’ refused or (4) if the Court finds that the parents acted unreasonably in the process. 20 U.S.C. 1412(a)(10)(C)); 34 CFR 300.148[d]. See also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246– 47, 129 S. Ct. 2484, 2496, 174 L. Ed. 2d 168 (2009) (finding “[C]ourts retain discretion to reduce the amount of a reimbursement award if the equities so warrant—for instance, if the parents failed to give the school district adequate notice of their intent to enroll the child in private school.”) “Important 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.” C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014). The Second Circuit has also found, “in making that equitable determination, the district court may consider many factors, including, inter alia, whether [parent’s] unilateral withdrawal of her child from the public school was justified, whether [parent’s] provided the [the district] with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether [parent] should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the [district], or whether the arrangement with the school was fraudulent or collusive in any other respect.” E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

• • Findings of FACTS The findings set forth below are based upon my review and analysis of the testimony and exhibits presented and the relevant law.

Background

Student is an REDACTED-year-old boy who resides with Parent (his grandmother and legal guardian) in the Bronx. He is diagnosed with Autism Spectrum Disorder, Level 3 (Severe), Social Pragmatic Language Disorder, Attention Deficit/Hyperactivity Disorder, and Specific Learning Disorders with impairment in reading and written expression (Severe). (Ex. T, p. 24).

The DOE has determined Student to be eligible for special educational services for several years and Student continued to be eligible during the pendency of this dispute. Student attended Private School for the 2019/2020, 2020/2021, and 2021/2022 school years and, for each year, the DOE has been Ordered to fund Student’s attendance for an ESY at Private School pursuant to an IHO FOFD.^[44]

The present matter relates to the 2022/2023 ESY. Student has continued to attend Private School during the pendency of this dispute and, by my Order on Pendency dated 12/15/2022, the DOE has continued to fund Student’s tuition and related transportation costs.

ISSUE 1 - FAPE

The DOE never appeared and presented no prong one case under Burlington-Carter.

The most recent IEP entered into the record is dated 12/10/2021 and was to be implemented 12/24/2021. (Exhibit H). On June 24, 2022, Parent sent a TDN to the DOE advising she continued to disagree with the recommendations set forth in the 12/10/2021 IEP; that the DOE had failed to conduct the adaptive physical education evaluation requested in March 2021 (Ex. KK); and that she was enrolling Student in Private School and would seek public funding for such placement. (Ex. OO). The TDN was acknowledged as received by the DOE on 6/24/2022. (Ex. QQ).

There is nothing in the record that casts any doubt as to the validity of Petitioners’ allegations.

ISSUE 2 - APPROPRIATENESS

Petitioners provided three witnesses by affidavit; the Psychologist who conducted Student’s 05/02/2022 Neuropsychological Evaluation (Ex. YY); the Principal of Private School (“Principal”), (Ex. XX); and Parent, (Ex. VV). Each witness was available for cross-examination on 01/11/2023.

Psychologist’s testimony as to her education and professional experience showed her to have the appropriate expertise and competency for testifying in this matter. Psychologist testified credibly and knowledgeably her familiarity with Student. She conducted Student’s neuropsychological report on 4/11/2022, 4/22/2022, and 4/25/2022 and issued a Report dated 5/2/2022. (Ex. T).

Principal’s testimony as to her education and professional experience showed her to have the appropriate expertise and competency for testifying in this matter. Principal testified credibly and knowledgeably as to the educational programs offered at Private School, her familiarity with Student and his records and performance, and her direct contact with his teachers.

Parent testified credibly and knowledgeably as to her familiarity with Petitioner and his performance in school; her participation in his education; and the education provided by Private School.

Psychologist’s Evaluation Report has been entered into the record as Exhibit T; Her affidavit has been entered as Exhibit YY.

Psychologist conducted several assessments, and a classroom observation. She found Student to have above average non-verbal reasoning skills and intelligence skills. (Ex. T, p. 23, 24; Ex. YY, ¶8). However, as Psychologist noted throughout the Neurological Report and her testimony, Student’s symptoms of autism are “quite severe” and “substantial,” and are the greatest barriers interfering with his ability to access his education. (e.g. Ex. T, p. 24; Ex. YY, ¶¶8, 15, 19, 24, 27.).

Student is “extremely difficult to manage in the classroom” (Ex. T, p.24; Ex. YY, ¶31); he is highly distractible, is frequently distracted by both external and internal stimuli, and he demonstrates significant and severe self-stimulatory behaviors (Ex. YY ¶15, 18). Student is rigid and presents with significant behavioral dysregulation, experiencing extreme distress even at small changes in routine. (Ex. T, p.23; Ex. YY, ¶28, 30). His speech is disordered and often unintelligible (Ex. T, p.24); he demonstrates echolalia, tunes out, rocks and self-stimulates (Ex. YY ¶16).

Student’s severe ASD and substantial disabilities exert a generalized negative affect on his learning and his functioning in the world at large. Ex. YY ¶8, 20, 24, 27. The Student has significant behavioral dysregulation consistent with ASD which prevents him from reaching a level of independence in the learning environment appropriate to his age and grade. (Ex. T, p. 23, 25). He has delays in sharing with other children and in group play and has difficulty reading social cues and does not learn by observing what others are doing. His learning is negatively affected by Autism Spectrum Disorder (“ASD”). (Ex. T, p.23). His overall level of adaptive functioning is well below the normative mean, with an overall percentile rank of <1. His communication domain and socialization domain percentile ranks are <1 and his daily living skills domain percentile rank is 3. (Ex. T 15). He is bright and has discrete educational skills which can be accessed in a 1:1 paradigm. (Ex. T, p.25).

Psychologist set forth numerous, extensive, detailed recommendations in her Report. ^[45] (Ex. T, p. 25-27; see also, Psychologist Affidavit, Ex. YY, ¶¶ 32-46.). Psychologist determined that, in order to rise to the level of independence appropriate to his age and ability, Student requires, inter alia, a placement in a specialty non-public school program which addresses the total educational needs of bright children with significant symptomology of ASD, whose behavioral issues interfere with their ability to access their educational program. (Ex. T, p. 25).

The evaluator concluded that Student requires 1:1 intensive instruction implementing a researched-based, structured program of Applied Behavioral Analysis (“ABA”) which has been shown to be effective for children with autism. She advised that ABA will decrease intermittent and unwitting reinforcement of inappropriate behaviors, increase the frequency of appropriate replacement behaviors, increase activities of daily living skills (“ADL”), improve pragmatic language and social skills, and decrease maladaptive behavior. (Ex. T, p.26). The evaluator also determined that the Student continues to require a functional behavior analysis (“FBA”) by a licensed behavior analyst (“BCBA”) and needs a behavior intervention plan (“BIP”) developed and implemented under the auspices of a BCBA. (Ex. T, p.26).

Psychologist determined that Student continues to need a 1:1 paraprofessional to help regulate his behavior (Ex. T, p.26), and an Extended School Year (12 month) program due to the propensity of regression during school break in order not to lose progress made during the school year. (Ex. T, p.27).

Private School Principal testified as to the program offered by Private School as well as the challenges faced by student and the many ways Private School has individualized Student’s educational program and monitored Student’s progress. (Ex. XX). Her testimony was mirrored in the Progress reports submitted by Petitioners. (Ex. Z-DD).

Private School specializes in the education of students with ASD, many of whom are diagnosed with additional disorders and impairments. (Ex. XX, ¶6). Private School offers a twelve-month special education program with related services that address the academic, social/emotional, and behavioral needs of the students. (Id.).

Private School’s teachers are certified, or are college graduates pursuing certification, as teachers of special education. (Id. ¶14). The faculty and staff receive ongoing monthly training in ABA, Collaborative Problem-Solving and non-violent crisis intervention. (Id. ¶14). Private School is a New York State approved provider for “Training in the Needs of Children with Autism,” a professional development program. (Id. ¶9). The School’s therapeutic team includes certified social workers and guidance counselors as well as full-time on-site Board Certified Behavior Analysts who collaborate with classroom teachers and staff (Id. ¶20).

Students’ are assessed before admission and again within the first 45 days of attendance. Student’s assessments continue and quarterly progress reports are provided to parents (Id. ¶21, 22,24).

The school conducted a functional behavioral assessment and developed and implemented a behavior intervention plan to address targeted behaviors; the school’s board-certified behavior analyst conducted the FBA and developed the BIP. Ex. L.

Student attends Private School’s 12 month program for students who require a high degree of individualized attention and treatment. (Id. ¶11). Student is placed in a class with children of similar profiles who are within 36 months in age of each other. (Id. ¶10). He is in a class of 6 students and two instructors as well as his 1:1 paraprofessional.

Principal set forth details of the intensive program of ABA methodology and services and highly individualized instructional and behavioral support provided to Student. (Ex. XX, ¶ 13; see also EE; GG). Principal also provided details as to the program of Collaborative Problem-Solving (“CPS”) Private School uses to address Student’s significant behavioral challenges. ((Id. ¶16).

Student’s class schedule includes daily instruction in the activities of daily living, science, social studies, math, ELA, music, art, gym, and social thinking, and related services including occupational therapy (“OT”), speech-language therapy (“SLT”), and physical therapy (“PT”). (Ex. FF; HH; XX 7).

In preparation for annual reviews of Student’s program by his IEP team, the school staff prepares annual review reports of his progress in academics (Ex. Z), OT (Ex. AA), SLT (Ex. BB), PT (Ex. CC). Additionally, the school issues quarterly reports of his progress toward each of his annual goals in all areas of services. Ex. DD. These reports attest to his achievement of goals and objectives in numerous areas, e.g., greeting “his peers individually, while making eye contact”, following “a visual schedule to complete his daily routine”, unpacking his belongings independently, reading “sentences with 4- 5 words in them”, adding “double digit numbers up to 25 using manipulatives”, writing “his personal information with a visual model”, and “identifying components of a book.” Ex. DD,

Principal has interacted with Student and has observed him in class and interacts with his teachers from both the 2022/2023 and the prior school year. (Id. ¶33). She is familiar with all his records, and progress reports, including those entered as exhibits in this present dispute. (Id. ¶33-38). In Principal’s professional opinion, Private School can and does provide Student with the ABA methodology, discrete trial teaching in a structured educational environment where he can receive individualized teacher directed instruction, guidance, redirection and reinforcement that Student needs. (Id. ¶60)

Significantly, Psychologist was also familiar with the programs provided at Private School. In her opinion, “the environment at [Private School] seems very appropriate in that the environment is quiet and designed to circumvent sensory defensiveness which leads to behavioral outbursts.” (Ex. T, p. 25). The evaluator personally observed the Student at Private School and noted that “his behavior was managed on the classroom environment” with 1:1 intensive instruction implementing a researched based, structured program of ABA. (Ex. T, p. 25). Psychologist testified that Student’s behavior is managed at Private School through the supports provided, which include ABA, 1:1 intensive instruction, and a 1:1 paraprofessional. (Ex. YY, ¶ 22,) For example, during Psychologist’s observation, Student experienced a distracted and distractive self-stimulatory episode which was immediately and successfully addressed by his teacher who was able to coax Student to re-engage with her. (Ex. YY, ¶17; Ex. T).

Also of significance, Petitioners filed similar complaints for prior years, each of which resulted in an FOFD, (issued as recently as June 2022 and October 2022), in which the IHO determined that Private School provided a program for the Student which was designed to meet his special educational needs. (Ex.’s TT and UU).^[46]

ISSUE 3 - EQUITIES

There are no allegations, and the record contains no evidence suggesting that Parent’s conduct calls for a reduction in any remedy awarded.

• • CONCLUSIONS of law and Discussion
• • For the 2022/2023 school year, DOE failed to provide Petitioner with a FAPE in that the DOE failed to appropriately evaluate Student and failed to provide an appropriate placement and appropriate services to Petitioner.

As noted above, the DOE bore the burden of production and persuasion to establish that it provided the Student with a FAPE for the school year at issue.^[47] Here, the DOE failed to satisfy its burden. The DOE never responded to Petitioners’ Complaint; it produced no witnesses, exhibits, arguments or closing brief to rebut Petitioners’ assertion that the DOE failed to provide Student with a FAPE during the 2022/2023 school year.

• • Private School is an appropriate placement for Petitioner.

An individualized, appropriate education is one that would enable this Student, with his challenges, to access and benefit from that education. The evidence here shows that the education developed by Private School for this Student has done that.

Transportation to and from Private School to be a related service necessary to enable student to access and take advantage of his education at Private School.

• • Equitable considerations support a full award of remedies sought.

Parent has been cooperative in all dealings with the DOE. There is nothing in the record that calls for a reduction of any remedy awarded. Accordingly, equitable considerations support a full award of remedies sought.

• • FINAL ORDER:

Upon consideration of the Findings and Conclusions noted above:

• • The DOE is Ordered to reimburse Parent for all tuition costs incurred in association with Student’s attendance at Private School for the 2022/2023 school year and/or to make direct payment to Private School for any such tuition costs that remain outstanding or are incurred for the 2022/2023 school year.
• • The DOE is Ordered to reimburse Parent for all Student’s transportation costs incurred in association with Student’s transportation to and from Private School for the 2022/2023 school year and/or to make direct payment to transportation provider for any such costs that remain outstanding or are incurred for the 2022/2023 school year.
• • The DOE is Ordered, upon receipt of billing statements from Private School, and transportation provider, or upon receipt of proof of payment by Parents, to rapidly complete all administrative/bookkeeping procedures and promptly issue such payment and/or reimbursement check.
• • The DOE is Ordered to complete an adaptive physical education evaluation; to complete such evaluation within sixty (60) days of receipt of the Hearing Officer’s decision;
• • The DOE is Ordered to convene a meeting of the Student’s IEP team to consider the above-mentioned adaptive physical education evaluation, the May 2, 2022 neuropsychological evaluation, and all current evaluations, in order to develop an IEP that addresses the Student’s current educational needs.
• • The DOE is Ordered to provide the services of a Spanish- English interpreter to facilitate the Parent’s participation in the IEP meeting ordered above in item 5.
• • The DOE is Ordered to provide to the Parent a Spanish-language translation of the IEP developed at the IEP meeting ordered above in item 5.

SO ORDERED

This 24th day of January 2023

By: ________________________________

Hearing Officer Andrea R. Cohen, Esq.

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.

Footnotes

[1] The present matter was filed 11/02/2022 while the 10/11/2022 FOFD was still within the appeal period. The appeal period has ended and the 10/11/2022 FOFD now stands as the last current educational placement as of 10/11/2022.

[2] See prior FOFD’s: Ex.TT, the 6/20/2022 FOFD issued in Case # 207558; and Ex. UU, the 10/11/2022 FOFD issued in Case 226247, dated 06/20/2022.

[3] U.S.C. § 1400(d)(1)(A).

[4] C.F.R. § 300.320.

[5] N.Y. Educ. Law §4404(1)(c). M.H. v. New York City Dept. of Educ., 685 F.3d 217, 225 (2d. Cir. 2012).

[6] Walczak, 142 F.3d at 130 (quotations omitted). Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005)

[7] Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982); Cerra v. Pawling Cent. Sch. Dist., 427 F.3f 186, 192 (2d Cir. 2005); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting Rowley, 458 U.S. 176, 207).

[8] Cerra v. Pawling, 427 F.3d 186 (2005) at 195, the Second Circuit, citing Walczak, 142 F.3d at 130 and Mrs. B., 103 F.3d at 1121.

[9] See 20 U.S.C. 1414(d)(3)(B)(i).

[10] See 8 NYCRR 200.4(d)(3)(i).

[11] C.F.R. § 300.324(b)(1)(i); 8 NYCRR § 200.4(f).

[12] C.F.R. § 300.324(b)(1)(ii); 8 NYCRR § 200.4(f)(2).

[13] C.F.R. § 300.324 (b)(1).

[14] see Educ. Law 3602-c[2][a]). NYSED; State Review Office; March 31, 2014 No. 14-022; Justyn P. Bates, S.R.O.

[15] Endrew F., 137 S. Ct. at 1002.

[16] R.E., 694 F.3d at 185Id. at 185-86.

[17] See L.O. v. New York City Dep’t of Educ., No. 15-1019, 2016 WL 2942301, at *9 (2d Cir. 2016).

[18] C.F.R. § 300.15; see also 8 NYCRR § 200.1(aa).

[19] C.F.R. §300.304(b)(1); 8 NYCRR §200.4(b)(1).

[20] C.F.R. § 300.304© (6); 8 NYCRR § 200.4(b)(6)(ix).

[21] See 20 U.S.C. 1414(d)(3)(B)(i).

[22] See 8 NYCRR 200.4(d)(3)(i).

[23] 34 C.F.R. § 300.303(b)(2); 8 NYCRR §200.4(b)(4).

[24] C.F.R. §300.303(a); 8 NYCRR §200.4(b)(4).

[25] C.F.R. § 300.324(b)(1)(i); 8 NYCRR § 200.4(f); 34 C.F.R. § 300.324(b)(1)(ii); 8 NYCRR § 200.4(f)(2).

[26] C.F.R. §§ 300.324(a)(1) and (2); see also 8 NYCRR §§ 200.4(d)(2) and (3).

[27] NYCRR 200.5(g); see also 34 C.F.R. § 300.502; 20 U.S. C. § 1415 (b)(1) and (d)(2)(A).

[28] See Evans v. Dist. No. 17 of Douglas County, 841 F.2d 824, 830 (8th Cir. 1988); Bd. of Educ. of Murphysboro Cmty. Unit Sch. Dist. v. Ill. St. Bd. of Educ., 41 F.3d 1162 (7th Cir. 1994); Breanne C. v. Southern York C’nty. Sch. Dist., 732 F.Supp.2d 474, 489 (M.D. Pa. 2010).

[29] C.F.R. § 300.502(b)(5)

[30] U.S.C. § 1400(d)(1)(A).

[31] C.F.R. § 300.320.

[32] U.S.C. § 1415(i)(2)(C)(iii).

[33] Doe v. E. Lyme Bd. of Educ., 790 F.3d 440 (2d Cir. 2015) (internal citations omitted).

[34] Streck v. Bd. of Educ. of the E. Greenbush Cent. Sch. Dist., 408 F. App’x 411, 415 (2d Cir. 2010).

[35] L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 125 (2d Cir. 2016).

[36] (Letter to Kohn, 17 IDELR 522 (OSEP 1991). See also Letter to Riffel, 34 IDELR 292 (OSEP 2000) (discussing a hearing officer’s authority to grant compensatory education services).

[37] N.Y.C.R.R. § 200.6(j)(iii)(c).

[38] (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. Sept. 28, 2005]).

[39] (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 at 112 [2d Cir. 2007]).

[40] (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112),

[41] (Gagliardo, 489 F.3d at 365).

[42] (Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 364-65).

[43] See, e.g., French v. New York State Educ. Dep’t, 476 F. App’x 468 (2d Cir. 2011); J.G. v. Kiryas Joel Sch. Dist., 777 F. Supp. 2d 606 (S.D.N.Y. 2011); N.Y. SRO Decision No. 11-027 (Apr. 29, 2011).

[44] See the two prior FOFD’s: Ex.TT, the 6/20/2022 FOFD issued in Case # 207558; and Ex. UU, the 10/11/2022 FOFD issued in Case 226247, dated 06/20/2022.

[45] These recommendations are set forth in full in an Appendix hereto.

[46] Ex.TT, the 6/20/2022 FOFD issued in Case # 207558; and Ex. UU, the 10/11/2022 FOFD issued in Case 226247, dated 06/20/2022.

[47] N.Y. Educ. Law §4404(1)(c). M.H. v. New York City Dept. of Educ., 685 F.3d 217, 225 (2d. Cir. 2012).