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Case Number: 593959 – NYC: 244153
FINDINGS OF FACT AND DECISION
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., District # [REDACTED]
Impartial Hearing Officer: Roberta Wolf
Date of Filing: 12/21/2022
Hearing Requested by: Parent
Date of Hearing: 03/09/2023
Record Close Date: 04/05/2023
Date of Decision: 04/05/2023
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 9, 2023:
For the Department of Education:
[REDACTED], Representative
For the Student:
[REDACTED], Representative
[REDACTED], Law Clerk
[REDACTED], Parent Student
BACKGROUND
On December 21, 2022, the Parent, by and through her attorney’s law firm, filed a due process complaint (DPC) against DOE on behalf of the Student, under Case No. 244153, pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1415(f)) and Section 4404(1) of the New York State Education Law (Education Law). [1]
In the DPC, the Parent asserts that DOE failed to provide the Student with a free appropriate public education (FAPE) for the 2022-2023 school year when its Committee on Special Education (CSE) created a substantively and procedurally insufficient Individualized Education Program (IEP) with inadequate related services, and when DOE never provided the Student with a permanent school placement to implement the IEP.[2] Additionally, DOE failed to provide the related services mandated by the IEP while the Student remained in a temporary school placement.[3] The Parent thereafter unilaterally placed the Student in the Private School and now seeks tuition funding, transportation, and compensatory education for missed services for the 12-month, 2022-2023 school year. [4]
I was appointed impartial hearing officer (IHO) on January 31, 2023; held a prehearing conference on February 17, 2023; and adjudicated a due process hearing on March 9, 2023. DOE did not hold a resolution meeting or file a due process response. At the hearing, DOE did not present a case, waived its opening statement and closing argument, raised no objections to the Parent’s proposed exhibits, and declined to cross-examine her affiants. The Parent provided documentary and testimonial (affidavit form) evidence, a list of which is appended to this Order.
FINDINGS OF FACT
The Student is [REDACTED] years old and his eligibility for special education supports and services is not in dispute. He is classified by DOE with autism[5] and presents with delays in receptive language, expressive language development, gross and fine motor skills, sensory processing, and speech and language functioning.[6] The Student also displays physical impulsivity and aggression (kicking, screaming, using foul language, throwing objects, flipping over a table, throwing himself on the floor) [7], which requires management by a one-to-one paraprofessional[8] and a behavior modification plan. [9]
When the CSE convened on June 17, 2022, to create the Student’s IEP for the 2022-2023 school year, the Student scored at a Kindergarten level for reading, English/Language Arts and Math.[10] The CSE recommended a 8:1+1 special class for four subjects, with varying numbers of weekly sessions, plus counseling, occupational therapy (OT), parent counseling and training (PCAT), physical therapy (PT), speech-language therapy (SLT), applied behavior analysis (ABA) instruction, a full-time paraprofessional, and transportation (door to door from the closest safe curb) for the extended, 12-month school year.[11] The CSE acknowledged that the Student needed for a behavioral intervention plan (BIP) to address aggressive behaviors.[12] With respect to a placement, the CSE authorized a NYSED-approved non-public day school.[13] The Parent agreed to temporarily place the Student in an 8:1+1 community school until DOE located a non-public school; however, DOE never provided that placement.[14] Additionally, DOE did not temporarily place the Student in an 8:1+1 community school as the Parent had agreed, but instead maintained the Student’s placement in a 12:1:1 classroom[15] as mandated by his prior IEP; however, DOE already conceded that that IEP denied the Student a FAPE in another due process hearing. [16]
On October 13, 2022, the Parent notified DOE that she had not received a non-public day school placement, nor had DOE provided the PCAT, ABA, or a full-time paraprofessional as mandated by the Student’s June 17, 2022, IEP. 17 DOE did not respond to the Parent’s notice. On December 5, 2022, the Parent again notified DOE that she had not received a non-public day school placement, nor had DOE provided the ABA, OT, SLT, or PCAT services mandated by the June [17], 2022, IEP; therefore, she intended to unilaterally place the Student in the Private School and seek public funding.[18] DOE again did not respond to the Parent’s notice. On January 9, 2023, the Parent contacted DOE a third time to notify it that the transportation route it used to drive the Student to and from the Private School exceeded four hours round-trip, which negatively impacted him.[19] DOE again did not respond to the Parent’s notice.
The Private School is a full-time, 12-month, special education program for students on the autism spectrum.[20] It uses ABA in a highly structured learning environment with individualized attention on each student.[21] Classes have a student-to-staff ratio of 6:1:1 and all staff are trained in ABA methodologies.[22] The Private School employs certified special education teachers, certified school psychologists, licensed clinical psychologists, licensed speech-language therapists and occupational therapists, board-certified behavioral analysts (BCBA), teaching assistants, one-to-one aides, and state-certified social workers.[23] BCBAs conduct functional behavioral assessments (FBA) and develop BIPs for students with behavioral issues. [24]
To create and implement an individualized education program for the Student, the admissions team reviewed the Student’s IEP and prior evaluations, and assessed his academic performance, abilities, and socio-emotional and behavioral needs.[25] The Student was placed in a special education class with students exhibiting similar learning impairments and language limitations, and with behavioral needs that resulted from their inability to communicate.[26] The Student’s classroom consisted of six students (including him), a certified special education teacher, and an assistant teacher.[27] A BCBA completed an FBA and BIP to address the Student’s aggressive behaviors and the Private School assigned a full-time, one-to-one paraprofessional to help the Student mitigate those behaviors.[28] The Student receives OT, SLT, and counseling services and the Parent receives PCAT.[29] The Student has progressed academically (full grade levels in reading and math), socially, and behaviorally. [30]
ANALYSIS
The IDEA and the New York Education Law require a school district to offer a FAPE to each child with an eligible disability residing in its district who requires special education programs or services.[31] A FAPE is offered to a student when (a) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits; and (b) DOE complies with the procedural requirements set forth in the IDEA.[32] For a procedural violation, an impartial hearing 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 parent’s 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.[33] In general, an IHO’s decision must be made on substantive grounds as to whether the student received a FAPE.[34] DOE may be required to pay for educational services obtained for a student by his parent if a preponderance of the evidence shows: (a) the services offered by DOE were inadequate or inappropriate (e.g., the denial of a FAPE); (b) the services selected by the parent were appropriate; and (c) equitable considerations support the parent’s claim. [35]
Prong 1 – FAPE Denied to the Student
A school district offers a student a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” [36] An IEP must include a statement of the student’s present levels of academic achievement and functional performance; annual goals designed to meet the student’s needs resulting from his disability and that enable him to make progress in the general education curriculum; and provide appropriate special education and services.[37] “A reviewing court may fairly expect [DOE] to be reasonably calculated to enable the child to make progress appropriate in light of [his] circumstances.” [38]
Here, DOE did not defend at the hearing that the June 17, 2022, IEP offered the Student a FAPE, nor do I find that the IEP on its face conferred a FAPE. Moreover, DOE did not dispute that it never provided the Parent with a school location to implement the services mandated by the IEP, which is a procedural violation that results in a deprivation of educational benefits. As a result, I find that DOE did not provide the Student with a FAPE for the 12-month, 2022-2023 school year.
Prong 2 – Appropriateness of Unilateral Placement Established
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent seeking tuition reimbursement for a unilateral placement in a private school setting has the burden of persuasion and burden of production on the appropriateness of such placement. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a child.’” [39]
The Parent notified DOE on December 5, 2022, that without an appropriate program or any placement, she would unilaterally place the Student at the Private School for the subject school year. The Parent provided the Student’s class schedule and evidence of progress; a program description and the Parent’s signed enrollment contract; and the testimony of the Principal of the Private School. The Private School provides full-time special education specifically for children like the Student with autism and behavioral issues, taught in very small class settings by qualified instructors. The Student exhibited progress academically, socially, and behaviorally as shown by the affidavits of the Parent and the Principal of the Private School. I find the Parent’s evidence to be comprehensive, consistent, and credible. I further find that the Parent established that the placement of the Student in the Private School provides educational instruction specially designed to meet his unique needs, supported by such services as are necessary to permit him to benefit from that instruction.
Prong 3 – Equitable Considerations Favor the Parent
Although the hearing officer may deny the Parent’s tuition funding claim for: (a) unreasonably rejecting DOE’s proposed changes to the IEP, or otherwise behaving unreasonably; (b) failing to make the Student available for an evaluation; or (c) failing to timely notify DOE of her intent to reject the proposed IEP and enroll the Student in a private school at public expense,[40] no facts support such a finding in this case. DOE made no claim that the Parent behaved unreasonably or failed to make the Student available for an evaluation, nor did DOE object to her proffer of a “Ten Day Notice of Intent” to unilaterally place the Student in the Private School and seek tuition funding. In contrast, DOE failed to adhere to two procedural requirements necessary once a parent files a DPC: conducting a resolution meeting[41] and filing a due process response. [42]
The Parent’s enrollment contract shows that the Private School charged tuition of $75,188.75 for the 10-month, 2022-2023 school year, with the full amount due and owing.[43] I find that the equities favor the Parent and warrant funding forthwith.
Compensatory Relief Granted in Part
Compensatory education and services are equitable remedies tailored to meet the unique circumstances of each case.[44] An award must be designed to “make up” for past denials of FAPE and place the student in the position they would have been had the district complied with its obligations under the IDEA.[45] “[T]he inquiry must be fact-specific, and [in order] to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.”[46] The compensation may take the form of supplemental special education or in related services, with the goal of fashioning appropriate relief for a denial of a FAPE.[47] It is calculated by either a “quantitative” approach (provided equal to the period of the FAPE deprivation) or a “qualitative” approach (provided as needed to address the student’s educational deficits resulting from the FAPE deprivation). Courts have noted that when the qualitative analysis is available, it can be the more “flexible approach, rather than a rote hour-by-hour compensation award, [and thu]s more likely to address [the student’s] educational problems successfully.” [48]
In New York, when there is a lack of FAPE and the parent seeks a compensation award, the burden lies with DOE to “describ[e] its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that [they] would have been but for the denial of FAPE.”[49] However even where DOE fails to offer its “position regarding the appropriate compensatory education remedy . . . an outright default judgment awarding compensatory education . . . and all of the relief requested without question . . . is a disfavored outcome [including] where the district’s conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious[.]”[50] The specific award sought, therefore, must be evaluated, because (a) “services that may be valuable for, or even critical to, a child’s educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity[;]”[51] and (b) “[t]he purpose of compensatory education is not to punish school districts for failing to follow the established procedures for providing a [FAPE], but to compensate students with disabilities who have not received an appropriate education.” [52]
In this case, the Parent requests a one-for-one replacement for missed services as follows: counseling: 15.5 hours at $480 per hour; PT: 2 hours at $300 per hour; SLT: 47 hours at $300 per hour; OT: 14.5 hours at $300 per hour; a paraprofessional for 84 days at $150 per hour; PCAT: 42 hours at $330 per hour; ABA 525 hours at $330 per hour.[53] The Parent submits rate cards from two providers who state that the aforementioned pricing reflects the “market rate” for New York City area services.[54] The Parent last requests Metro cards to fund transportation for any services not administered in the Student’s home. [55]
Although I grant the hours requested for counseling, PT, SLT, OT, PCAT, and ABA, I reject the suggested rates as excessive, exceptional, and unwarranted. The Parent’s providers offer no special qualifications, educational backgrounds, certifications, accreditations, or any other unusual identifiers that might justify these extremely high rates, nor do general statements that these prices reflect “market rate” establish the same. Nor does the Parent provide any evidence that the Student requires an unusual type of counseling or therapy, which might justify the expense. Additionally, I deny the Parent’s request for a paraprofessional because the Private School already supplies the Student with a full-time, one-to-one paraprofessional and I find that awarding hours and costs for the equivalent of a second paraprofessional is useless, burdensome, and would punish DOE rather than compensate the Student a denial of FAPE.
ORDER
Based upon the above Findings of Fact, it is hereby:
1. ORDERED that, DOE shall fund the Student’s placement at the Private School for the 10-month, 2022-2023 school year in a sum not to exceed $75,188.75 (SeventyFive Thousand, One Hundred Eighty-Eight Dollars and Seventy-Five Cents).
2. FURTHER ORDERED that, DOE shall provide the Student with transportation, from the closest safe curb and with limited travel time, between his home and the Private School for the 2022-2023 school year.
3. FURTHER ORDERED that, the Student is entitled to the following services:
• Individual counseling – 15.5 hours at a rate not to exceed $150 per hour
• Physical therapy administered in a group of two – 2 hours at a rate not to exceed $175 per hour
• Speech-language therapy administered individually – 47 hours at a rate not to exceed $175 per hour
• Occupational therapy administered individually – 14.5 hours at a rate not to exceed $175 per hour
• Parent counseling and training – 42 hours at a rate not to exceed $150 per hour
• ABA – 525 hours at a rate not to exceed $250 per hour
4. FURTHER ORDERED that, DOE shall fund the services identified in Section 3 and issue payment directly to the provider of the Parent’s choosing within 30 days of submission of a copy of the invoice.
5. FURTHER ORDERED that, the Student’s bank of compensatory services identified in Section 3 shall not expire for one year from the date of this Order.
6. FURTHER ORDERED that, DOE shall provide Metro cards or their equivalent to allow the Student to travel to and from the services identified in Section 3 at no cost to the Parent.
7. FURTHER ORDERED that, the Parent’s remaining claims are DENIED.
SO ORDERED.
DATED: April 5, 2023
/s/ Roberta Wolf, Esq.
Impartial Hearing Officer
Roberta Wolf
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.
DISTRICT EVIDENCE
PARENT EVIDENCE
A. Parent’s Impartial Hearing Request 12/21/22 10 pages
B. Individual Education Program 06/17/22 28 pages
C. Final Order of Fact and Decision, Case #[REDACTED] 02/25/22 20 pages
D. Independent FBA and BIP 04/08/21 26 pages
E. Independent Occupational Therapy Evaluation 03/14/21 8 pages
F. Independent Speech Therapy Evaluation 03/14/21 7 pages
G. Independent Neuropsychological Evaluation 03/31/21 24 pages
H. Independent ABA Skills Assessment 04/08/21 23 pages
I. Email to DOE re: Student’s Transportation 01/09/23 3 pages
J. Prior Written Notice 06/30/22 9 pages
K. Parent Letter to DOE re: Student’s Program 10/13/22 1 page
L. Ten Day Notice Letter and Receipt Confirmation 12/05/22 6 pages
M. [REDACTED] Program Description 2022 2 pages
N. [REDACTED] 2022-2023 Tuition Agreement 12/16/22 2 pages
O. [REDACTED] 2022-2023 Tuition Affidavit 01/11/23 1 page
P. [REDACTED] 2022-2023 Schedule 2022 1 page
Q. Subpoena for Student’s Related Service Encounter Attendance Records and Delivery Receipts 01/04/23 5 pages
R. Related Service Encounter Attendance Records (No ABA or PCAT Records Provided) 2022 9 pages
S. Rate Sheet of [REDACTED] 01/01/23 2 pages
T. Rate Sheet of [REDACTED] Undated 1 page
U. Calculations for Missed Counseling Services 2022 1 page
V. Calculations for Missed Physical Therapy Services 2022 1 page
W. Calculations for Missed Speech Therapy Services 2022 1 page
X. Calculations for Missed Occupational Therapy 2022 1 page
Y. Calculations for Missed Paraprofessional Services 2022 1 page
Z. Resume of [REDACTED], [REDACTED] Principal Undated 1 page
AA. Affidavit of [REDACTED], Parent 03/06/23 8 pages
BB. Translated Affidavit of [REDACTED], Parent 03/06/23 8 pages
CC. Certification of Translation, [REDACTED] 03/02/23 1 page
DD. Affidavit of [REDACTED], [REDACTED]Principal 03/07/23 10 pages
Footnotes
[1] Ex. A.
[2] Id.
[3] Id.
[4] Id.
[5] Ex. B1.
[6] Ex. D-F.
[7] Ex. B3, B4.
[8] Ex. D3, D6; J.
[9] Ex. B6.
[10] Ex. B4.
[11] Ex. B19-B24.
[12] Ex. D12.
[13] Ex. B25.
[14] Ex. J2, K, L.
[15] Ex. AA5.
[16] Ex. C6.
[17] Ex. K.
[18] Ex. L.
[19] Ex. M.
[20] Ex. AA.
[21] Ex. M, DD.
[22] Ex. M.
[23] Ex. M.
[24] Ex. M.
[25] Ex. DD.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Ex. AA, DD.
[31] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[32] Board of Education v. Rowley, 458 U.S. 176, 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[33] 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).
[34] 20 U.S.C. § 1415(f)(3)(E)(i).
[35] 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); Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, and Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 (Oct. 15, 2007).
[36] Rowley, 458 U.S. at 203.
[37] See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep’t of Educ., Appeal No. 07-018; able to offer a cogent and responsive explanation for their decisions that shows the IEP is 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.
[38] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[39] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 115 (2d Cir. 2007) (citing Frank G., 459 F.3d at 365 (quoting Rowley, 458 U.S. at 188-89)).
[40] S.W. v New York City Dep’t of Educ., 646 F. Supp. 2d 346, 361-363 (S.D.N.Y. 2009).
[41] 34 CFR § 300.510(a).
[42] 34 CFR § 300.508(e)(f), 8 NYCRR §§ 200.5(j)(2), (i)(4). Although DOE filed prior written notice of its recommendations on June 30, 2022, a due process response must address the subject matter contained in the DPC.
[43] Ex. O. Although a 12-month Student, the Parent did not enroll him in the Private School until December 2022.
[44] See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
[45] P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008).
[46] Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that compensatory awards should place children in the position they would have been in but for the violation of the Act).
[47] See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 451 (2d Cir. 2014); see also Newington, 546 F.3d at 123.
[48] Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007).
[49] Application of a Child with a Disability, Appeal No. 22-004; see also M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. Mar. 30, 2017); Educ. Law § 4404(1)(c); E. Lyme, 790 F.3d at 457; and Reid, 401 F.3d at 524.
[50] Application of a Child with a Disability, Appeal No. 22-004 (citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005).
[51] M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *8, supra.
[52] C.W. v. Rose Tree Media Sch. Dist., 395 Fed. App’x 824, 838 (3d Cir. 2010).
[53] Ex. S-Y; Tr. p. 45 lines 15-25; p. 46 lines 1-9.
[54] Ex. S2, T1.
[55] Tr. 46 p. 3-9.