New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 245480

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Date of Hearing: April 19, 2023

May 17, 2023

Actual Record Closed Date: June 21, 2023

Hearing Officer: Judith Schneider, Esq.

An Impartial Hearing for the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of REDACTED (“the student”) was conducted by me remotely via teleconference

Procedural History

The proceeding was initiated at the request of the parents (hereinafter “the parent”) by correspondence dated January 31, 2023 (Ex. A) I was appointed Impartial Hearing Officer on February 7, 2023. A prehearing conference was held on March 16, 2023.

Parties moved to extend the compliance date on various occasions for anticipated testimony, the scheduling of witnesses and submission of evidence, receipt of the transcript and closing statements. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the requests for extensions of the compliance dates were granted.

The current compliance date is July 15, 2023. The record closed on June 21, 2023.

Positions of the Parties

The parent asserts among other things: 1) that the district failed to provide a FAPE for the 2022-2023 SY. The student was unilaterally placed at REDACTED (“the School) which the parent asserts was appropriate and for which the parent seeks district funding by direct payment to the School due to financial inability to pay and seek reimbursement. The parent asserts that equitable considerations do not provide a basis for denial or limitation of the funding sought; 2) the student’s program must include at-home ABA (10 hours per week) and PCAT (1 hour per week); 3) the student requires provision of special education transportation with, among other things, limited travel time; 4) the student requires certain Assistive Technology related material; 5) the student is entitled to compensatory services for failure services required but not provided during the 26 weeks the student was at his prior district placement.

The district presented no witnesses or documentary evidence in this matter and asserted it was not presenting a case with regard to provision of a FAPE. Further the district asserted no claims with regard to equitable considerations. Although the district stated that it contested the appropriateness of the School and the compensatory services sought it did not assert a basis for that. The district did not submit a closing statement although provided with an opportunity to do so.

Cases Presented

The district presented no evidence, testimonial or documentary.

The district presented documentary evidence (a list of documents in the record is appended) and the testimony of: a speech language pathologist who evaluated the student (“the SLP”); a board-certified behavior analyst” (“the BCBA”): the School’s Director of Education (“the Director”); the student’s mother (“the parent”) .

Findings of Fact and Conclusions of Law

AFactual Findings

Credible uncontested and unrebutted evidence establishes that:

The student is 16 and is classified as a student with Autism. (Exs. B,C) He has also been diagnosed with an intellectual impairment, language impairment and developmental coordination disorder. (Ex. J) He is very limitedly verbal, struggles with following directions, completing academic work and managing his behaviors. (Ex. J)

Some 5 years ago he commenced attendance in a non-public school approved by the State Education Department as an educational facility with which the district may contract for the delivery of educational services, (“the NPS”) in which he had been placed by the district. (Ex. J)

On March 22, 2022, the parent filed a due process complaint alleging failure to provide a FAPE for the 2019-2020, 2020-2021 and 2021-2022 SYs. (Ex. D) ^[1]

As a result of the impartial hearing process, IEEs in the areas of neuropsychology, occupational therapy (“OT”), assistive technology (“AT”) , vocational, speech language therapy (“SLT’) and a functional behavior assessment (“FBS”) and corresponding behavior intervention plan (“BIP”) were conducted. (Exs. E-J)

The CSE convened on June 22, 2022, and December 20, 2022 to develop the student’s program for the 2022-2023 SY. (Exs. B-C) The parent participated and continued to express concerns about placement and the program. (Exs. A, D; T140-141)

In a December 13, 2022 incident at the NPS relating to a behavioral matter, the student was physically restrained, and the police were involved. (Exs. M, R)

On December 13, 2022, the student was accepted in the School, effective January 30, 2023. (Ex. D)

On January 9, 2023, the parent executed an enrollment agreement with the School. (Ex. Y) For the period February 1, 2023-June 30, 2023, the total charge for tuition and all services is $160,495. (Ex. X) The parent is not financially able to fund the program and seek reimbursement. (T162-165)

By letter dated January 17, 2023, the district recommended a District 75 placement while another NYSED approved NPS placement was being sought. (Ex. P)

By letter dated January 20, 2023, the parent informed the district that in the absence of an appropriate program and placement the student would be placed in the School and funding by the district sought. (Ex. R)

The instant due process complaint alleging that the district had failed to provide a FAPE for the 2022-2023 SY was filed on January 21, 2023. (Ex. A)

The student commenced attendance in the School on February 1, 2023. (T95)

The School provides full day 1:1 ABA services and ABA is utilized throughout the day to teach new skills and decrease inappropriate behaviors. (Ex. W, T96, 98) The student was provided with a specialized educational assessment upon enrollment. (Ex. W, T96) A BIP was created. (Ex. DD) Staff receive ongoing training in ABA by a BCBA. (T98) The student’s individual program is overseen by a BCBA as are all clinical components of the program provided. (Ex. W, T88-89) Parent training and counseling are provided. (T107) There is ongoing collaboration between staff including service providers and with parents and outside providers and in regular meetings. (Ex. W, T100,103,104,106, 161-162) The student received related services (OT, PT. SLT) from appropriately qualified providers and is accompanied by a 1:1 professional throughout the day. (T97, 102122) Appropriate techniques and equipment to facilitate communication are utilized. (Ex. BB) A sensory gym is available and utilized. (Ex. CC) The evidence shows that the program provided is substantially consistent with evaluation recommendations. (Exs. E-J) The student has shown progress notwithstanding the short time he has been receiving School services. (T100, 106, 109, 161)

B Conclusions

The parent seeks district funding for the student’ placement at the School, at home services, AT, compensatory services and appropriate special education transportation. In due process proceedings, the district has the burden of proof for all issues but for the appropriateness of a unilateral placement for which district funding is sought. Education Law Section 4404(1)(C)

1. FAPE

The district has the burden of establishing that it provided a FAPE. It elected to present no evidence with regard to parent’s claims, supported here by documentary evidence. I conclude that the district has not met its burden.

1. Funding for Unilateral Placement at the School

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and Prong 3 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]

Prospective payment for tuition may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education, and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2^nd 795 at 806, n.7 (N.D. N.Y. 1998)

1. Prong 1

The district has failed to establish it provided a FAPE as discussed above.

1. Prong 2

When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2^nd Cir. 2006). It is not required that the provider of the services be State approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents 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. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007). A finding of progress is not required for a determination that a student’s unilateral placement is adequate. Scarsdale Union Free Sch. Dist. V. R.C., 2013 WL 563322, at *9-*10 [S.D.N.Y. Feb. 4, 2013]; see also Frank G., 459 F. 3d at 364. However, a finding of progress is, nevertheless, a relevant factor to be considered. Gagliardo, 489 F.3d at 115. However, the program should be reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 (March 22, 2017). Although the restrictiveness of a parental placement may be considered as a factor in determining entitlement to an award of tuition reimbursement, parents are not as strictly held to the standard of placement in the LRE as are school districts. C.L. v. Scarsdale UFSD,744 F. 3d 826, 830, 836-37 (2d Cir. 2014); see Carter, 510 U.S. at 14-15; M.S., 231F.3d at 105 and “the totality of the circumstances” must be considered in determining the appropriateness of the unilateral placement, Frank G., 459 F. 3d at 64.

The parent has presented substantial testimony and documentary evidence in support of the contention that the unilaterally selected program is appropriate. Further, the student has made progress in the program in his limited time there. In addition, the testimony of the parent’s witnesses (which was credible and uncontroverted) and the parent’s documentary evidence established that the placement was appropriate and provided the student with educational instruction that was specifically designed to meet the student’s unique special education needs, supported by such services that were necessary to permit the student to benefit from instruction.

I note that although the district asserted that the program was not appropriate it did not articulate a reason for that claim.

I conclude that the parent’s burden has been met.

1. Prong 3

The district has made no claims with regard to equities and, further, I conclude that the record does not support that claim but rather shows parental cooperation with the CSE. I note the parental participation in the reviews, attempted to view the recommended school and made timely notification of intent to unilaterally place the student.

The parent has established inability to pay and seek reimbursement and therefore direct funding is ordered.

3) At Home Services

The district has the burden of proof with regard to the requested at-home services. Further, I note that it is well established that related services need not be limited to the school day to result in an appropriate benefit. The district has presented no evidence in this matter and has asserted no basis for a denial of this parental claim. Rather ,credible, and unrebutted evidence supports the parent’s claim that at-home services in the form of ABA (10 hours per week) and PTAC provided by a BCBA (1 hour per week) are required in view of this student’s needs and deficits. (Exs. I, K, T60-62, 67-69, 77, 79, 82-83, 163-169)

1. Assistive Technology

The district is mandated to provide such related services, including AT, as will enable appropriate progress. 8 NYCRR Section 200.1(qq). The SLP recommended after evaluation that the student be provided with a ProLoQuo2G0 speech-generating application and carrying strap. (Ex. H, T54) Her testimony was unrebutted and persuasive.

1. Compensatory Services

The parent seeks various compensatory services for services not provided during the 26-week period in the 2022-2023 SY in which the student was enrolled in the NPS which the parent asserts should have been provided. (T133)

In fashioning an appropriate compensatory education remedy, “the inquiry must be fact-specific, and … 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.” Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Newington Bd. of Educ., 546 F.3d at 123; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) ("[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act").

With regard to compensatory education services when there is a denial of FAPE, the district has the burden of proof and persuasion. Appeal No. 11-091 n. 10. Moreover, it is not sufficient for the district to simply criticize the remedy sought by the parent but rather it must provide credible evidence to support its own view of what is warranted. Appeal No. 11-091. See also Appeal No. 14-014.

In this matter, the evidence shows that the NPS did not provide all the student’s mandated services. (Exs, B, C, J, T148-149) Further, the evaluators concluded that the mandated amounts were insufficient in view of this student’s needs. (Ex. E-J, T49-50) The December 2022 CSE increased certain related services provided (SLT, OT,PT) consistent with the recommendations of the evaluators. (Ex. C) I conclude that calculation of compensatory hours should be based upon those recommendations. With regard to PTAC, the evaluator recommended one hour per week. (Ex. J) That recommendation was not contested. I conclude that that recommendations should be the basis for a determination as to compensatory hours.

In this matter, the district has failed to provide subpoenaed records which could establish what services the student actually received during the applicable period. (Exs.T,U;T25) The parent asserts that in these circumstances compensatory services should therefore be calculated with no deduction for services provided. I agree and reject reliance on mere speculation.

With regard to the parent’s request for compensatory ABA services, I note the observation of the independent evaluator after an August 2022 observation at the NPS of instructional deficiencies in the program provided at that time including that trials had not been provided during 1:1 instruction. (Ex. J) The district has presented no evidence to support a conclusion that those practices did not continue. I conclude that 10 hours per week of ABA is appropriate compensation.

In this matter, the parent presented substantial, detailed, fact specific and credible evidence as to the student’s need for the compensatory services requested and the basis for the services request. The district did not submit a closing statement or propose an alternative remedy.

Accordingly, compensatory services will be provided as follows:

SLT: 87 hours (5x40 minutes per week for 26 weeks);

OT: 52 hours (4x30 minutes per week for 26 weeks);

PT: 26 hours (2x30 minutes per week for 26 weeks);

PCAT: 26 hours (1 hour per week for 26 weeks);

ABA: 260 hours (20 hour per week for 26 weeks).

1. Transportation

The parent testified as to the student’s extended bus trips of from 2-3 ½ hours each trip. (Ex. T166) Based upon the recommendations of the student’s doctor, the parent seeks special education transportation accommodations as follows: Less than 1 hour each way to and from the School; Climate control vehicle; The student to be the last pick-up and the first drop off. (Ex. S)

However, IEPs for the current school year had not provided a specific time limit. I conclude that the pick-up/drop-off request was simply to support the 60-minute limit and decline to order it.

ORDER

It is hereby ordered that:

1. The district shall within 45 days of issuance of this order pay the School for the program it provided for the period February 1-June 30, 2023: (not to exceed $160,465). The district may require evidence that the services specified in the Affidavit of Services Provided (Ex. X) were delivered.

1. The district shall fund the below specified services to be delivered after-school by qualified providers of the parent’s choice at market rate:

ABA: 10 hours per week

PCAT: 1 hour per week

The district may request evidence that the rates are the providers customary rates.

1. The district shall within 45 days of issuance of this order provide ProLoQuo application and a carrying strap for the student’s communication device.
2. The student shall receive special education transportation to and from the School with the following accommodations: Less than 1 hour each way; Climate Controlled vehicle.
3. The district shall issue authorizations for the following compensatory services to be provided by qualified providers of the parent’s choice at market rate:

SLT: 87 hours

OT: 52 hours

PT: 26 hours

PCAT: 26 hours

ABA: 260 hours

Services must be utilized with 4 years of issuance of this order. The district may request evidence that the rates are the providers’ customary rates

1. The district shall fund transportation to and from compensatory services not provided in the home by provision of MetroCards

Dated: June 28, 2023

_________/s/_____________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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.

EXHIBITS

District

NONE

Parent

A Impartial Hearing Request 01/31/23 11 pgs.

B Individualized Education Program 06/22/22 29 pgs.

C Individualized Education Program (IEP) 12/20/22 31pgs.

D Final Order of Fact and Decision, Case #225247 02/22/23 31pgs.

E Independent Vocational Evaluation 06/20/22 24 pgs.

F Independent Occupational Therapy Evaluation 06/20/22 21 pgs.

G Independent Speech-Language Evaluation 07/13/22 17 pgs.

H Independent Assistive Technology Evaluation 07/13/22 11 pgs.

I Independent Functional Behavior Assessment/BIP 07/27/22 20 pgs.

J Independent Neuropsychological Evaluation 08/15/22 26 pgs.

K Prescription for ABA Services 12/20/21 1 pg.

L NPS Consent Form for BIP 12/19/22 1 pg.

M Parent Letter to NPS: Police Incident 12/15/22 1pg.

N Parent Emails with NPS re: Police Incident 12/16/22-01/11/23 4 pgs.

O Parent Email to DOE re: Placement 01/11/23 1 P-

P Prior Written Notice and School Location Letter 01/17/23 7 P-

Q Parent Email to DOE recommended placement 01/19/23 1 P-

R Ten Day Notice Letter and Confirmation 01/20/23 5 P-

S Parent Email to DOE re: Limited Time 03/09/23 4 Transportation Accommodations P-

T First Subpoena for Related Service Encounter Attend. Records (RSEAR) 3/10/23 3 pg

U Second Subpoena for Student’s RSEAR 03/21/23 3 pgs.

V School Schedule 2023 1pg.

W School Clinical Program Description 2023 4 pgs.

X School Tuition Affidavit 03/23/23 1 pg.

Y School Tuition Agreement 01/09/23 1 pg.

Z Resume of Director/BCBA at MBC Undated 1 pg.

AA Resume of SLP Undated 1 pg.

BB School Speech Therapy Progress Report 03/2023 4 pgs.

CC School Occupational Therapy Progress Report 03/2023 3 pgs.

DD School ABA Progress Report 03/2023 4 pgs.

EE Progress Report re ABA 11/10/22 19 pgs.

Impartial Hearing Officer

I Parent Closing Statement

Footnotes

[1] The FOFD for that matter was issued on February 22, 2023, after the filing of the instant complaint and is in the record as Exhibit D.