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Case Number: 595214 – NYC: 245057
FINDINGS OF FACT AND DECISION
Student's Name: REDACTED
School District: REDACTED
Hearing Requested By: Parent
Record Closed Date: May 30, 2023
Hearing Officer: Dora M. Lassinger
The student’s parent filed a request for an impartial hearing on January 18, 2023, challenging the student’s educational program for the 2021-2022 school years and requesting funding for the student’s unilateral placement at the REDACTED ( “private school 1”) and subsequently, at the REDACTED (“ private school 2”) for the 2021/2022 school year. (Par. Ex. A). 1 I was designated to hear this matter on January 25, 2023, pursuant to 20 U.S.C. Section 1415(f)(1).
A pre-hearing telephone conference was held on March 3, 2023. An impartial hearing was held on May 23, 2023. The compliance date was extended three times, with a final compliance date of July 2, 2023. (IHO Ex. I). Department of Education (“DOE”) Position
The DOE did not present any evidence at the hearing. It argued that the parents failed to demonstrate the appropriateness of either of the unilateral placements, and requested that the relief requested be denied. (Tr. pp. 43-44). Parent’s Position
The parents argue that the student was denied a FAPE for the 2021-20222 school year, as the DOE failed to present any evidence The parents argue that both unilateral placements were appropriate, at the time they were made; and seek reimbursement/ direct funding for tuition at private school[1] and private school 2 for the 2021/2022 school year. (Tr. pp. 45-46).
Evidence at Hearing
The student was diagnosed with Autism Spectrum Disorder when he was two years old. He attended public schools through his fifth-grade year. Subsequently he was placed in a private school, where it was reported that he made progress. (Par. Ex. F). A Neuropsychological Evaluation was performed in April 2021. The student was diagnosed with Autism Spectrum Disorder (“ASD”), with Intellectual and Language Impairment, and with Attention-Deficit/Hyperactivity Disorder (“ADHD”). It was recommended that he be placed within a school for students with ASD; in a class of no more than six students, with one-to-one academic instruction, and individual speech and language therapy (“SLT”) Occupational Therapy (“OT”) and Physical Therapy (“PT) . (Par. Ex. F).
In a February 22, 2021 IEP, he was classified with Autism, and recommended for placement in a Special Class (12:1:1), with related services of Counseling, OT, PT and SLT, and a full-time paraprofessional (for orientation and mobility). The parent attended the meeting. (Par. Ex. D). A school location letter was sent on April 8, 2021, designating a public school where the IEP would be implemented. (Par. Ex. E).
On May 6, 2021, the parents wrote to the CSE expressing their disagreement with the recommended program and school. (Par. Ex. G). At the hearing, the student’s father testified that he disagreed with the CSE”s recommendation because the student required a smaller classroom, one-to-one support throughout the day, and a behavior plan. He explained that while the student initially progressed at the private school 1; due to his significant dysregulation and behaviors as the year progressed, the parents decided to enroll him at private school 2, which provided ABA support. (Par. Ex. S). He testified that the student has made very good progress at private school
2. (Tr. p. 40). On June 3, 2021, the parents signed a contract agreeing to pay $135,649.00 for the student’s tuition at the private school 1 for the 2021-2022 (twelve month) school year. (Par. Ex. H). The parents made payment in the amount of $7,500, toward the tuition, and owe a balance (pro-rated for the period from July 1, 2021 through February 18, 2022) in the amount of $89,813.00 for which they are requesting direct funding. (Par. Ex. K). The father testified that the family is unable to front the entire tuition and seek reimbursement for either private school 1 or private school 2. (Tr. p. 42).
On June 16, 2021, the parents, through their attorney, wrote to the CSE stating that in the in the absence of an appropriate placement for their son, they intended to enroll him at private school 1 and seek funding. (Par. Ex. B).
The director of private school 1 testified that she is licensed as a special education teacher and school building leader. Private school 1 provides a program for children with a variety delays, including ASD. It utilizes a variety of methodologies including Applied Behavior Analysis (“ABA”), TEACCH and Floor time, and offers related services of SLT, OT, PT, counseling, paraprofessional services, and assistive technology. The school has two Board Certified Behavioral Analysts (“BCBA’s”) on staff.
During the 2021/2022 school year, there were 118 students enrolled at the private school, ranging in age from five to twenty-one. All of the teachers are certified in special education, and classrooms have certified assistant teachers.
The student attended private school one from July 12, 2021 to February 18, 2022. He was placed in a special class with a staffing ratio of 8:1:2, with related services of SLT, OT, PT, and counseling. He was assigned a one-to-one paraprofessional to manage his behaviors; which included yelling, spitting, throwing items, and pulling hair. A behavior award system was developed with support from a BCBA, so that the student could attend and engage with his class. The student progressed in his academic and therapeutic goals. Specifically, he progressed in answering comprehension questions, following multi-step questions, and answering multiple choice assessments. He was able to participate in school trips and shop at a grocery store with minimal support. The director testified that the program at private school 1 was appropriate for the student. Nevertheless, in mid-February 2022, the student left to attend private school 2, due an increase in his behaviors, and his need for additional ABA support. (Par. Ex. T; Tr. pp. 25-28).
On February 2, 2022, the parents, through their attorney, wrote to the CSE stating that in the in the absence of an appropriate placement for their son they intended to enroll him at private school 2 and seek funding. (Par. Ex. C).
On February 15, 2022, the parents signed a contract agreeing to pay $49,402.50 for the student’s tuition at private school 2 for the period from February 16, 2022 through June 24-
2022. (Par. Ex. M). The parents have not made any payment toward the tuition, and owe $49.402.50 for which they are requesting direct funding. (Par. Ex. P).
The Vice President (“VP”) of education programs for private school 2 testified that she has a Master’s Degrees in Special Education and educational leadership.
Private school 2 serves students, on the autism spectrum, aged 5 to 21 years old, in a variety of programs and campuses. The student’s program utilized Applied Behavior Analysis (“ABA”) and Collaborative Problem Solving (“CPS”). All staff receive extensive ABA training from the school’s BCBA’s.
The student began attending the school in mid-February 2022, and was placed in a classroom with six students, one teacher, one teaching assistant . The student was assigned a oneto-one paraprofessional. The VP testified that he had variable academic skills, ranging from second grade to middle school level. When dysregulated, he exhibited aggression, elopement and inappropriate social behavior.
His classroom teacher was certified in special education. His math teacher was a New York State certified Math teacher, and his math and ELA instruction was generally provided one-to-one. A Functional Behavior Assessment (“FBA”) was performed, and a Behavior Intervention Plan (“BIP”) was developed for the student. His BIP focused on reducing aggression, inappropriate social behavior and spitting. He also received OT, SLT and Counseling with licensed therapists. (Par. Ex. U). The student’s BIP was implemented throughout the day, and academics were taught with discrete trial teaching. (Tr. p. 31).
The student progressed in his ability to attend to his work, and progressed in expanding his communication skills, and in his ability to walk through the hallways without touching or grabbing at other students. The VP testified that private school 2 provided an appropriate placement for the student for the 2021-2022 school year. (Par. Ex. U).
Findings of Fact, Conclusions of Law and Order
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [1982]. The instruction offered must be specially designed to meet the child’s unique needs through an individualized education program. Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017). The IEP must be reasonably calculated to enable the child to make progress appropriate in light of the student’s circumstances. Id. at 1002.
A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Forest Grove School District v. T.A., 557 U.S. 230 (2009); School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities does not preclude an award of reimbursement. Florence School District Four et al. v. Carter, 510 U.S. 7(1993).
I find that the DOE failed to meet its burden of proving the appropriateness of its recommendations and programs for the 2021/2022 school year. The DOE failed to present any evidence to support its recommendations. The evidence presented by the parent, that the student required a smaller classroom, one-to-one support throughout the day, and a behavior plan was not challenged or contradicted.
Appropriateness of Parental Placements
To qualify for funding under the IDEA, the parents must demonstrate that the parental 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.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007).
I find that that the parents demonstrated that the programs at both private school 1 and private school 2 were specially designed to meet the student’s unique needs. At private school 1, the student was provided with a small class with a staffing ratio of 8:1:2, with related services of SLT, OT, PT, counseling, a one-to-one paraprofessional and a behavior award system developed with support from a BCBA. The student initially progressed at private school 1; however, it was subsequently determined that due to an increase in his behaviors, he required additional ABA support
Private school 2 provided the student with a smaller class (6:1:1), a one-to-one paraprofessional, related services of SLT, OT, PT and Counseling, and a BIP. The student received related services of SLT, OT, PT and Counseling. The student progressed in his ability to attend to his work, in his communication skills, and in his behaviors.
Equitable Considerations
In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 49 IDELR 39 [S.D.N.Y. Nov. 20, 2007]. The Courts must consider all relevant factors, including whether the parent participated in the IEP meeting, visited the proposed placement and provided timely notice of her intent to place the student in a private school. See M.H. and E.K. v. New York City Dept of Education, 685 F 3d 217 (2d Cir. 2012).
Direct funding of tuition is an available remedy where equitable considerations favor an award of the costs of private school tuition; but the parents, though legally obligated to make tuition payments, have not done so due to a lack of financial resources. Application of a Student Suspected of Having a Disability, Appeal No. 15-038 (citing Mr. and Mrs. A. v. New York City Dep’t of Educ. 769 F. Supp. 2d 403 (S.D.N.Y. 2011); See Connors v. Mills, 34 F. Supp. 2d 794
(N.D.N.Y. 1998
The record indicates that a parent participated in the challenged IEP meeting, and that the parents provided 10-day notice of their intention to unilaterally place the student and seek funding for both private school 1 and private school 2. The parents presented evidence that they were unable to pay the tuition and seek reimbursement (except to the extent already paid).
For the reasons set forth above, I find that the parents are entitled to reimbursement, and direct funding for the balance owed for tuition at private school 1 and private school 2 for the 2021-2022 school year.
ORDER
For all of the foregoing reasons, it is hereby ordered as follows:
The DOE shall, by June 15, 2023, fund the student’s tuition at private school 1 and 2, as follows: 1. Reimburse the parents $7,500, on account of tuition paid for private school 1, on account of the 2021-2022 school year; 2. Directly fund the balance owed to private school 1 ($89,813.00), on account of the 2021-2022 school year; 3. Directly fund the balance owed to private school 2 ($49,402.50), on account of the 2021-2022 school year; Dated: June 1, 2023 Dora M. Lassinger DORA M. LASSINGER, ESQ. Impartial Hearing Officer .
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Office (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.
DOCUMENTATION ENTERED INTO THE RECORD
IMPARTIAL HEARING OFFICER EXHIBITS
PARENT’S EXHIBITS
REDACTED
Footnotes
[1] The parents seek reimbursement of $7,500 for tuition paid to private school 1, and direct funding of the balance owed ($89,813); and direct funding for the tuition owed to private school 2, in the amount of $49,402.50. (Tr. pp. 22-23).