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CASE NUMBER: 595837 - NYC: 245510
FINDINGS OF FACT & DECISION
Case No. City/State: 245510 / 595837
Student's Name: [REDACTED] (hereinafter referred to as "Student")
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Request by: [REDACTED] (herein after referred to as "Parent")
School: [REDACTED] (hereinafter referred to "Private School")
Hearing Dates: 7/19/23; 8/1/23; 9/13/23; 10/23/23
Actual Record Close: December 4, 2023
Hearing Officer: David R. Gronbach Esq.
Date of Decision: December 18, 2023
NAMES AND TITLES OF PERSONS WHO APPEARED
For the Student:
[REDACTED], ESQ, Attorney
[REDACTED], Parent Student
[REDACTED], BCBA/Program Director, Private School
[REDACTED], Psy.D., DABPS
For the Department of Education:
[REDACTED], ESQ., Attorney
ISSUES
This matter comes before the undersigned Impartial Hearing Officer ("IHO") through the Parents' Due Process Complaint ("DPC") dated January 31, 2023 regarding the 2021/22 and 2022/23 school years (P-Ex. A) 1.
On May 16, 2023, the Parent filed a second DPC against the District alleging a failure to provide the Student with a FAPE for the 2021/22 and 2022/23 school years (Case # 248310). (P-Ex.Y). An Order was issued dated 6/20/23 consolidating the two cases into the prior case number. (P-Ex.Z).
The DPCs alleged that the District denied the Student a Free Appropriate Public Education ("FAPE") as required by the Individuals with Disabilities Education Act ("IDEA") by failing to recommend and implement an appropriate program. (P-Ex.A; Y). The Parent has requested tuition reimbursement and direct tuition funding to Private School for the 2022/23 school year; a home ABA program; and compensatory education. (P-Ex.A;Y; T.pg104-106; P. Closing Brief-25). [2]
PROCEDURAL HISTORY
The undersigned Hearing Officer was appointed on February 9, 2023. A Pre-hearing Conference was held on March 10, 2023. An IEE Hearing was held on March 20, 2023 and Odder for IEE dated March 27, 2023. Status Conferences were held on 4/4/23;l 5/4/23; 6/5/23; and 6/20/23, at which time Consolidation Order was issued and Hearing scheduled for July 19, 2023. At the July 19th Hearing, Parent requested an adjournment to August 1, 2023. At the August [1], 2023 Hearing, District did not appear and did not present a case with either exhibits or witnesses. (T.pg.50-51). The Parent presented exhibits that were entered into evidence and the testimony of one witness.[3] (T.pg.52-54). Parent's request to adjourn for additional witness testimony was granted to September 13, 2023.
At the September 13th Hearing, Parent introduced additional exhibits that were entered into evidence, and the testimony of three witnesses. (T.pg.64-65). The matter was adjourned for witness availability to October 23, 2023. At the October 23rd Hearing, Parent introduced additional exhibits that were entered into evidence and the testimony of one witness. (T.pg.93-96). Parent requested the opportunity to submit a closing brief, which was submitted on November 30, 2023. (P-Closing Brief). District did not submit a closing brief.
Eight joint/unopposed requests to extend the compliance date were granted. The record closed on December 4, 2023.
FINDINGS OF FACT
Parent testified Student has been diagnosed with autism spectrum disorder ("ASD"). Student engages in tantrums that include throwing items, hitting others, loud vocalizations, and elopement. Student's tantrums have become so severe Parents had to take him to the Emergency Room. Student does not tolerate certain textures of food and is a very picky eater. He is also very sensitive to sounds such as flushing toilets or hand dryers, does not like water on him in specific contexts, runs in circles, stares at his hands, and becomes obsessed with watching certain videos. (P-Ex.S).
Between June 2020 and January 2021, Student did not receive any ABA services because of the Covid-19 pandemic. Student began kindergarten at a NYC DOE [REDACTED] program in September 2020. He attended until he started at Private School on May 15, 2023. (P-Ex.S).
Parent testified the DOE program did not meet Student's educational needs. Parent attended an IEP meeting on April 15, 2021 for the end of the 2020-2021 SY as well as the 2021-2022 school year. A May 2022 IEP recommended placement in an 8:1:1 ratio classroom with OT, lx30 (1:1), lx30 (2:1), parent counseling and training 5x60 per year, SLT, lx30 (1:1) and lx30 (2:1), group service, lx30 on a 10-month basis and OT, lx30 (1:1) and lx30 (2:1) over the summer session. The services were all to be provided in a NYC DOE School, Non Specialized (District 1-32). (P-Ex.S).
Parent testified the programs did not meet Student's needs and Student would engage in maladaptive behaviors that were not addressed by the District. Parent testified they received frequent calls from the school and threats to call 9-1-1 if they did not pick him up immediately. (P-Ex.S).
A November 2022 IEP recommended placement in a NYSED-Approved Non-Public School (''NPS") -Day in an 8:1:1 class with OT, 1x30 (1:1), lx30 (2:1), parent counseling and training 5x60 per year, SLT, lx30 (1:1) and lx30 (2:1), group service, lx30, counseling lx30 (1:1), a behavior support paraprofessional full-time and a behavior management plan, all on a 12-month basis. Parent testified Student was not offered a placement. (P-Ex.S).
Neuropsychologist Report stated intellectual skills reveals generally Average cognitive functioning when his significant self-direction, aggression, avoidance, and self-regulation deficits are well-managed. ABA methods are required for him to be engaged, reciprocal, put forth his best effort, and demonstrate his skills. Cognitive scores would not have been achieved without significant support from the accompanying BCBA using ABA methodologies. When attempted with no support, he was unable to appropriately respond to a formal testing situation.
Student was highly overstimulated and needed frequent redirection, external rewards, and calming strategies (e.g., squeezing, jumping jacks, etc.) to persist through even a few items. Student still requires a high degree of 1:1 ABA instruction for him to attempt assessment items. Student demonstrated an inordinately low frustration tolerance; therefore, frequent external rewards and ABA methodology was the only possible method to foster any degree of perseverance on tasks he deemed to be challenging. Student has not been available for learning over the years and he requires a much more restrictive environment for him to access the academic curriculum, function in the community, and develop social awareness and skills.
Student's social-emotional vulnerabilities clearly indicate a need for intensive 1:1 ABA support both inside and outside of the classroom so that he can learn proactive coping methods, self-regulate, enhance engagement and reciprocity, and improve social pragmatic skills. He requires direct 1:1 support from a BCBA using ABA methodologies consistently both at home and at school to make progress.
Neuropsychologist recommended:
• Educational Placement: Student requires placement in a small, structured, full-time, special education program and school, with a small student-to-teacher ratio, and consistent 1:1 ABA data-driven, direct instruction throughout the day. ABA must be provided by a highly trained special educator in order to make appropriate progress and build the requisite skills needed for learning. 1:1 paraprofessional support would not adequately meet Student's needs. A [REDACTED] placement or community school would also not be appropriate, as Student requires 1:1 data-driven, direct instruction by professionals trained in ABA throughout the day.
• Home Programming: Student continues to require a home/community-based BCBA to address his functional communication, relatedness, engagement, and self-directed behaviors, all of which impede his availability to acquire skills for independence. He requires a minimum of 10 hours/week of this service. The behaviorist should help the parents in learning appropriate strategies to promote language development, increase his engagement, and respond appropriately to interfering behaviors. This type of communication is necessary to increase the generalization of skills and promote consistency across environments. (P-Ex.W-4-6; see also P-Ex.X).
For compensatory education, Neuropsychologist testified Student should have been receiving ABA for the prior two school years, with 10 hours a week after school. (T.pg.131; 137-38).
Occupational Therapist testified Student presents with significant difficulties with visual motor integration and motor coordination, as well as foundational sensory processing, selfregulation, attention, and behavioral deficits needed for visual-motor integration activities. These challenges directly impact his ability to participate in daily routines and activities at home, at school, and in his community. The evaluation reveals that Student has several deficit areas that impact his participation in the school and home environments. These deficits include significant difficulties with self-regulation, sensory processing, sustained attention, following 1- step directions, initiating tasks on his own, transitions, visual-motor integration, handwriting skills, scissor skills, and some self-care skills. Student appears to have regressed in several areas. Without a high level of external support and structure, and a small, individualized learning environment, Student will have significant difficulty accessing his curriculum and participating in his daily routines. (P-Ex.Q).
OT recommended Student receive 3 OT sessions per week at 30 minutes per session at school. If these services are not able to be provided in their entirety in the school setting, they should be provided in an outpatient clinic environment. (P-Ex.Q-7). The sessions should be provided on an individual basis in order to address sensory processing and self-regulation, attention, fine and gross motor skills, self-care, and visual-motor integration skills. (P-Ex.Q).
OT recommended compensatory occupational therapy services in the form of a bank of 138 occupational therapy hours (providing approximately 1.5 hours a week for 46 weeks for 2 years. (P-Ex.Q-7-8).
Speech Therapist testified that based upon Student's speech/language assessment, Student's speech and language delays negatively impact him. ST recommended Student receive ST 5 times weekly, four times individually and once in a small group of 2:1. Services should be provided on a 12-month basis to prevent regression of skills. (P-Ex.P; O).
ST recommended Compensatory Services in the form of a bank of 92 speech and language hours (providing approximately 60 minutes per week for 46 weeks for 2 years). This calculation is based on both a qualitative and quantitative approach considering what would be needed to give Student consistent access to therapeutic intervention that will address his specific language and literacy delays. (P-Ex.P; O).
Parent testified at Private School, Student has made progress and is provided with 1:1 ABA. (P-Ex.S; T.pg.81; 83). Parent testified they could not afford the Private School tuition. (T.pg.74-75; P-Ex.V). They enrolled Student at Private School in May 2023 because, "…sending him to school every day, … could, basically, be considered like a type of abuse, of what he was going through. I mean, he was literally by himself, getting no education. And we were getting calls from the school throughout the year, working with … the psychologist to try to find a setting. And any day, hour, or minute that he didn't have to be in there, that he could be in a place that was safe and …where he could be getting the supports that he needed, it was -- we were willing to do." (T.pg.78). Parents requested:
• A finding that Student requires a 1:1 ABA program and after-school ABA.
• Funding for Private School for period between May 15, 2023 and end of the 2022-2023 school year;
• Compensatory 1:1 ABA of 40 hours per week for all weeks that school was in session for a 12-month period between July 1, 2021 up to May 14, 2023.
• 1:1 SLT and OT;
• a 12-month extended school year with special education transportation with limited travel time/short bus run. (P-Ex.S).
CONCLUSIONS OF LAW
The Individuals with Disability Education Act ("IDEA") is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A "free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction." Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show "that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits." See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).
As set forth in Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep't of Educ., 471 U.S. 359 (1985) it is well established that a District may be required to reimburse parents for tuition payment to a private school if the services offered by the District were inadequate or inappropriate, the services selected by the parents were appropriate under the IDEA, and equitable considerations support the parent's claim for reimbursement. Thus, consideration of such a claim has been expressed by a three prong test: (1) was student denied FAPE; (2) the appropriateness of the Parent's unilateral placement; and (3) a balancing of the equities.
The burden of persuasion and proof is by the preponderance of the evidence standard, which requires a finding that the existence of a fact is more probable than not. When the evidence is evenly balanced, the party with the burden loses. The burden of production and persuasion is on the District for the first and third prongs. The Parent bears the burden of production and persuasion on the second prong.
An appropriate program begins with an IEP which accurately reflects the results of the 1) student's present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. "The initial procedural inquiry is no mere formality." Walczak, at 129. "Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP." Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.
In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, "[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be "specially designed" to meet a child's "unique needs" through an "individualized education program." §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the "particular child that is at the core of the IDEA". In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP "is not a form document. It is constructed only after careful consideration of the child's present levels of achievement, disability, and potential for growth" §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that "a student offered an educational program providing "merely more than de minimis progress" from year to year can hardly be said to have been offered an education at all."
The Court in Endrew further stated that, "[t]he IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Although the Supreme Court declined to elaborate on the definition of "appropriate progress" from case to case, it stated that, "the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created." Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that "every handicapped child who is advancing from grade to grade . . . is automatically receiving a [FAPE]." Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982). A Student's "IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives." Endrew F. v. Douglas 580 U.S. ___ (2017). "It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot." Id.
DISTRICT'S BURDEN: DID THE DISTRICT PROVIDE FAPE
Here, the District did not present a case regarding the 2021/22 and 2022/23 school years. Parent's testimony and claims regarding the denial of FAPE were not disputed with factual evidence. Therefore, the District did not meet its burden in demonstrating that the District provided the Student with FAPE. Based on all of the above, I find that the District did not provide the Student with FAPE for the 2021/22 and 2022/23 school years.
PARENT'S BURDEN: APPROPRIATENESS OF UNILATERAL PLACEMENT
The Parent bears the burden of proof to prove by a preponderance of evidence that the placement provides educational instruction specifically designed to meet the unique needs of the student with services necessary to permit the child to benefit from instruction. C.B. v. Garden Grove Unified School Dist., 635 F.3d 1155, 1159 (9th Cir. 2011) quoting Frank G. v Bd. of Educ., 459 F.3d 356, 365 (2d Cir. 2006).
Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, ultimately, the issue turns on whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89.
A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school must provide an educational program which meets the student's special education needs. See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. 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). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 14). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
"Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction." (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
Parent presented the testimony of Private School Program Director, who testified Private School is an intensive 1:1 school program utilizing principles of Applied Behavior Analysis to teach children with special needs. Children are provided with a 30+ hour a week, 12-month program during which they are taught basic language and communication skills, social, play and leisure skills, adaptive living skills, and academics. Children are instructed 1:1 by Behavior Technicians trained in Applied Behavior Analysis, and classrooms are led by Board Certified Behavior Analysts (BCBAs). Each child's curriculum is individually developed by the BCBA as well as our Academic Director, and designed based on language, behavior, and academic-based assessments conducted yearly. Data is collected daily so that all curriculum decisions are evidence-based. (P-Ex.R; P-Ex.U).
The school is ungraded and students are functionally grouped with respect to both academic, social and communicative development with no larger than a 3-year gap between ages in a single class. All of the children receive 1:1 ABA instruction and each child is assigned a 1:1 behavior technician throughout the day. Private School provides students with related services of speech language therapy, occupational therapy and physical therapy. Related services are conducted as either push in (inside the classroom) or pull-out (in a separate therapy room) and are conducted both 1:1 and in a group. (P-Ex.R; P-Ex.U).
The school day includes both 1:1 and group instruction that facilitate communication, social development, daily living skills, and academics. During 1:1 instruction, students work on individualized programs with their 1:1 ABA instructor. During group instruction, students participate in activities such as art, music, movement, and read aloud, as well as lessons on social studies and science when appropriate, while receiving prompts, reinforcement, and implementation of other individualized protocols from their 1:1 instructor. Data is collected on a variety of individual behaviors during group instruction, including sitting, participating, etc. (P-Ex.R; T.pg.114-15; P-Ex.U). Each classroom engages in a 45-minute Verbal Behavior Session each day, during which the focus of that session is strictly on increasing and improving students' use of language for communication. (P-Ex.R). Program Director testified Student was in a class of 3 students, including himself, with ages ranging from [REDACTED] to [REDACTED] years old. The classroom staff are RBT's and RBT candidates, and the classroom lead is a Certified Special Education Teacher and BCBA candidate. (P-Ex.R).
Student began attending Private School in May 2023. Shortly upon arrival Student began engaging in loud, intense screaming behavior sometimes accompanied by lying on the floor as well as by aggression towards his instructors in the form of hitting, grabbing, kicking, spitting, and finally attempts to disrobe. During his second day, Student engaged in the behaviors for a total of over an hour throughout the day. The behaviors appeared to be a response to any type of adult initiation of an interaction. (P-Ex.R; T.pg.116-17). Program Director testified Student's behaviors have greatly improved. Once Student's disruptive and challenging behaviors were reduced to a level for which he could tolerate adult interaction and demands, Student was assessed using the Verbal Behavior Milestones Assessment and Placement Program (VB-MAPP), a criterion referenced assessment tool, curriculum guide, and skill tracking system that is designed for children with autism, and other individuals who demonstrate pre-academic language delays. Results of that assessment show Student to be beyond a level 3 learner (the highest level) in most domains. He shows substantial deficits in the domains of play, social skills, and group learning. He also shows some deficits in receptive identification of features, functions, and categories of common objects. (P-Ex.R; T.pg.120-21).
Student's ABA programs include learning to wait following a request for a desired item/activity, following 3-step directions related to daily school routines, addition and subtraction equations and word problems using numbers up to ten, reading and spelling onesyllable words, reading 2nd grade sight words, and writing lower case letters and his name. Student's ABA program also targets social skills and verbal behavior training. Student also participates in daily lunch and recess during which related activities of daily living and leisure and social skills are facilitated by the 1:1 instructors. Weather permitting, Student and his classmates sometimes go on trips in the community to local stores and playgrounds. (P-Ex.R).
Student receives lx45 minutes per week individual Occupational Therapy and 2x45 minutes per week group Occupational Therapy. (P-Ex.R). Program Director described the progress Student had made and, whereas his behavior was unmanageable at his previous school placement and required him to be isolated from his peers and often sent home, Student's behavior has now become manageable to the extent that he is in a classroom with peers all day and able to tolerate demands from his instructors and is learning. (P-Ex.R). Neuropsychologist testified that based on his observation of Student at Private School, Student was making progress at Private School and its program. (T.pg.133-35). With respect to the student's progress at the Private School, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). Here the Student has made academic progress.
After reviewing the testimony and evidence provided, I find that Parent has met their burden. I find that the Private School was an appropriate placement for the Student for the 2022/23 school year.
EQUITABLE CONSIDERATIONS
Equitable considerations are relevant in determining relief "because the authority to grant reimbursement [under the IDEA] is discretionary." Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374). The balancing of the equities examines the actions of the parents and District including:
1. Whether the Parents provided timely notice of the unilateral placement, either at the last IEP meeting or at least 10 business days prior to the removal of the student from the public school. Parent provided notice by letter dated May 1, 2023. (P-Ex.T). Student was enrolled on May 15, 2023. (P-Ex.U-4-5). Thus, Parent's notice was timely.
2. The Parent's actions were reasonable. The District failed to establish Parent prejudiced the District.
In balancing the equities, I find in favor of the Parent.
Compensatory Education
The IDEA empowers courts to grant the relief that they determine to be appropriate. Burlington Sch. Comm. v. Massachusetts Dep't of Educ., U.S. 1985. (citing 20 U.S.C § 1415 (i)(2)(C)(iii)). IHOs are "granted broad authority… to determine the type of relief which is appropriate considering the equitable factors present and those which will effectuate the purposes underlying IDEA." SRO 12-033, See also SRO decision from February 13, 2015, 116 LRP 19162. The Second Circuit has determined that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA. P. ex rel. Mr. and Mrs. P. v. Newington Bd. of Ed., 546 F.3d 111. An award of additional services should aim to place the Student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 (emphasis added). Courts may also direct districts to revise IEPs so that they meet the Student's individual needs. Williamson County Bd. of Educ. v. C.K., 52 IDELR 40 (M.D. Tenn. 2009). Courts have the authority to craft appropriate relief even if the Parent does not particularize the relief in detail. R.P. ex rel. C.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1126 (9th Cir. 2011). Courts and hearing officers may not delegate to the school district the responsibility of crafting the appropriate compensatory relief. M.S. ex rel. J.S. v. Utah Sch. For Deaf & Blind, 822 F.3d 1128, 1130 (10th Cir. 2016). An award of "compensatory education [has been held to be] appropriate relief where responsible authorities have failed to provide a handicapped student with an appropriate education as required by [the Individuals with Disabilities Education Act] ("the Act")." Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1280 (11th Cir. 2008) (internal citations omitted). Compensatory education provides services "prospectively to compensate for a past deficient program." G ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295, 308 (4th Cir.2003). The Act does not foreclose a compensatory award of placement in a private school. In Draper v. Atlanta, the Circuit court held that an award for private school placement was not an abuse of discretion because the record supported that the award was "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." Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1290. The Student in that case was not required to prove that the School System was incapable of providing him an appropriate education." Draper at 1286. The Supreme Court has explained, "The Act contemplates that such education will be provided where possible in regular public schools..., but the Act also provides for placement in private schools at public expense where this is not possible." Burlington, 471 U.S. at 369, 105 S. Ct. at 2002–03. "When a public school fails to provide an adequate education in a timely manner a placement in a private school may be appropriate". Draper at 1285. "[A] disabled student is not required to demonstrate that he cannot be educated in a public setting. Under [the Act], the relevant question is not whether a student could in theory receive an appropriate education in a public setting but whether he will receive such an education." Id (emphasis added).
Based on the District's denial of FAPE and the evidence set forth above, Student is entitled to compensatory education as follows:
• Compensatory 1:1 ABA to be calculated at 40 hours per week for all weeks that school was in session for a 12-month period between July 1, 2021, up to May 14, 2023 for a total of 3,120 hour of 1:1 ABA (P-Ex.X; W; T.pg.131; 137-38). • 92 hours of compensatory 1:1 SLT (P.Ex.O; P); • 138 hours of compensatory 1:1 OT (P-Ex.Q; N).
DECISION
Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during 2021/22 and 2022/23 school years. I further find that placement at Private School is appropriate and Parent cannot afford the tuition. Parent is entitled to direct tuition funding at Private School for the 12-month 2022/23 school year.
Student requires a 12-month 1:1 ABA program and after-school ABA services.
Parent is entitled to compensatory education as set forth in my Order.
Parent's remaining claims are rejected for lack evidence in the record.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
1. ORDER THAT, the District shall reimburse Parent and directly fund all Private School tuition and fees for the Student's placement at Private School for the 12-month 2022/23 school year;
2. ORDER THAT, Student's program shall include a full-time 1:1 ABA program in school and 10 hours per week of 1:1 ABA services at-home, on a 12-month basis;
3. ORDER THAT, the District shall provide/fund the Student with compensatory services as follows:
a. a bank of 3,120 hours of 1: ABA services;
b. a bank of 92 hours of 1:1 speech language therapy;
c. a bank of 138 hours of 1:1 occupational therapy; such compensatory services shall be provided by licensed and/or certified providers, of the Parent's choosing, and paid for at market rate.
4. ORDER THAT, the District shall provide special education transportation with limited travel time/short bus run.
SO ORDERED
DATED: December 18, 2023
David R. Gronbach
David R. Gronbach, 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 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
N/A
PARENT EVIDENCE
A. Ex. Description Date Pg. Due Process Complaint 1/31/2023 13 pages
B. Prior Written Notice (Notice of Recommendation) 4/1/2022 5 pages
C. IEP DOE letter RE: Waiver of IEP Meeting to Amend IEP 5/11/2022 27 pages
D. 6/28/2022 2 pages
E. DOE School Location Letter 10/21/2022 2 pages
F. Prior Written Notice (Notice of Recommendation) 11/23/2022 4 pages
G. DOE Confidential Psychoeducational Evaluation 11/16/2022 5 pages
H. DOE letter RE: Waiver of IEP Meeting to Amend IEP 12/1/2022 1 page
I. Prior Written Notice (Notice of Recommendation) 12/2/2022 4 pages
J. School Location Letter 12/9/2022 2 pages
K. DOE email RE Revised IEP and PWN - interim placement Final Report Card 2021-2022, Term 1 and Final Report 12/2/2022 4 pages
L. Card 2020-2021, Term 1 Undated 9 pages
M. Final Report Card 2021-2022, Term 1 Undated 2 pages
N. Occupational Therapy Evaluation 5/10/2023 20 pages
O. Speech Services Speech Language Diagnostic Evaluation 5/13/2023 22 pages
P. Affidavit of Speech Therapist 7/17/2023 6 pages
Q. Affidavit of Occupational Therapist 8/3/2023 9 pages
R. Affidavit of Private School Program Director 9/6/2023 5 pages
S. Affidavit of Parent 9/6/2023 6 pages
T. Ten Day Notice 5/1/2023 13 pages
U. Private School documents 9/13/2023 4/28/2023 10 pages
V. IRS Form 8879- IRS e-file Signature Authorization 5/23/2023 1 page
W. 7/24/23 8/9/23 7/12/23 10 pages
X. Affidavit of Neuropsychologist 10/12/23 12 pages
Y. DPC # 248310 5/16/23 13 pages
Z. Order on Consolidation Case 245 / 248310 6/20/23 3 pages
Footnotes
[1] Exhibits shall be referred to as follows: "P" for Parent Exhibit; "D" for the District's or Department's Exhibits; and "IHO" for the Impartial Hearing Officer's exhibits.
[2] Reference to the Transcript shall be referred to as "T".
[3] A more detailed list of exhibits is attached.