NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
INTRODUCTION
The Parents, through counsel, filed a Due Process Complaint (DPC) on or about February 16, 2023. Parents allege that the Department of Education (DOE) failed to offer Student a free appropriate public education (FAPE) for the 2021-2022 and 2022-2023 school years. 1
Parents allege the DOE failed to provide a FAPE, due to substantive and procedural defects in the development of the IEP, including the failure to mandate (1) ABA instruction; (2) 1:1 instruction; (3) positive behavior interventions or create a behavior plan; and (4) a minimum level of speech-language therapy.[2] It is further alleged that the DOE failed to include academic goals, base recommendations on adequate evaluation information, and did not genuinely consider alternative placements.[3] By way of relief, Parents seek an award of: (1) tuition reimbursement for Student’s attendance at Private School during the 2022-2023 school year,[4] a private program not approved by the Commissioner of Education for the education of students with disabilities; (2) an award of compensatory services in the amount of 920 hours of Applied Behavior Analysis (ABA) instruction in an individual 1:1 setting, with 92 hours of supervision by a Board Certified Behavior Analyst (BCBA), and 200 hours of speech-language therapy; and (3) an award for the DOE to pay any transportation related services associated with Student’s commute to and from their home and Private School. [5]
As detailed below, I find that: (a) the DOE failed to meet its burden that it offered Student FAPE for the 2022-2023 school year; (b) Private School offers Student with specially designed instruction sufficient to meet Student’s needs; (c) the equities support the Parents’ requested relief; and (d) an award of compensatory services is warranted, in an amount and terms detailed below.
PROCEDURAL HISTORY
I was appointed as the impartial hearing officer (IHO) on February 21, 2023. A Prehearing Conference was held on March 21, 2023, where the DOE failed to send any representative, and a Prehearing Conference Summary was issued the same day.[6] The first communication from the DOE occurred on April 21, 2022, four (4) days before the due process hearing date, with the receipt of a Notice of Appearance from the DOE Representative. [7]
A due process hearing was held on April 25, 2023. The DOE Representative did not submit any documents or present any witness testimony. Parents’ Representative submitted 19 exhibits, all admitted into the record.[8] Private School Representative, Neuropsychologist, and Parent #[1] testified on Student’s behalf.
FINDINGS OF FACT
After thoroughly reviewing the record, I make the following findings of fact and determinations. As noted above, the DOE did not submit any evidence or witness testimony to dispute the evidence from the Parents. As such, the veracity and credibility of the Parents’ evidence are accepted to establish the facts in this matter.
Student’s eligibility for special education supports and services is based on a diagnosis of Autism Spectrum Disorder (ASD); language and intellectual impairment (level 3), requiring substantial support for social communication skills; level 2, requiring substantial support for restricted and repetitive behaviors; and a moderate intellectual disability. [9]
2021-2022 school year.
For the 2021-2022 school year, Student was [REDACTED] years old and attended Public School #1.[10] An IEP was developed for Student in September 2021. The IEP recommended placement in a classroom with 12 students, one teacher, and three assistants(12:1:3), with related services of speech-language therapy (two [2] 30-minute sessions per week on an individual basis) and occupational therapy (two [2] 30-minute sessions per week on an individual basis).[11] On November 8, 2021 Parents requested the DOE conduct an independent education evaluation (IEE) of Student due to a disagreement with the DOE evaluations. [12]
Parent #1 believed the special education and related services provided at Public School #1 were insufficient to allow Student to make academic and social progress because the teachers reported Student required 1:1 assistance because Student has a minimal attention span; limited play skills; throws tantrums to get what they wanted; struggled to follow anything beyond simple one-step directions; did not appear to be improving with introductory academic skills such as identifying letters and numbers, and their expressive speech did not progress beyond one to threeword utterances.[13] Even after a change in classrooms, Parents felt the education at Public School was more focused on play skills and less on academic goals.[14] In addition, Parent #1 testified the classroom was understaffed during the 2021-2022 school year, frequently under the four (4) adults required in the IEP, and there was a six (6) week period where the head teacher was in the classroom for three (3) days per week. [15] Neuropsychological Evaluation
Parents obtained an independent neuropsychology evaluation[16] of Student in January [17]
2022. Neuropsychologist determined that Student meets the diagnostic criteria of ASD and made several recommendations for Student’s academic, emotional, and behavioral development. The 2022 Neuropsychology Evaluation recommendations included: (1) placement in a small, structured, and highly supportive classroom that contains a small student-to-teacher ratio; (2) use of the ABA approach throughout the school day and supervision BCBA; (3) placement alongside appropriate peers who do not exhibit aggressive or acting out behaviors; (4) integrated therapeutic supports including a wrap-around social skills curriculum; (5) a substantial amount of speech-language therapy and occupational therapy; and (6) ten (10) hours of at-home ABA throughout the week with a minimum of two (2) hours of BCBA supervision. [18]
Neuropsychologist’s professional opinion is that the September 13, 2021 IEP did not meet the student's special educational needs. Specifically, they state: that the IEP did not mandate ABA instruction or any other evidence-based teaching methodology for students with ASD; this program did not meet Student’s language needs; it required more intensive speech-language therapy than what was mandated; Student’s language support should have also been integrated into Student’s academic curriculum; the program did not provide Student an appropriate amount of academic instruction; and the IEP includes few academic-related goals for Student.[19] Furthermore, Neuropsychologist’s professional opinion is that Student requires additional services to achieve the expected academic level since the DOE did not provide Student with appropriate support during the 2021-2022 school year.[20] Specifically, Neuropsychologist’s opinion is that Student should have received a minimum of 10 hours of ABA-based instruction with one (1) hour per week of BCBA supervision during the two 12-month school years.[21] As such, Neuropsychologist’s professional recommendation is for Student to receive 920 hours of ABA instruction with 92 hours of BCBA supervision to address the deficits developed due to the inappropriate speech-language support provided by the DOE. [22] 2022-2023 School Year
On May 27, 2022, a “turning-5” IEP meeting was held, where Parents attended, along with Neuropsychologist. 23 The May 27, 2022 IEP recommended placement in a classroom (with eight [8] students, one [1] teacher, and one [1] assistant [8:1:1]) in a District 75 school; a 12-month school year; occupational therapy (one [1] 30-minute per week session in an individual setting and one [1] 30-minute session per week in a two-person group setting), speech-language therapy (one [1] 30-minute session per week in an individual setting, one [1] 30 minute per week session in a two-person group pull-out setting and one [1] 30-minute session per week in a two-person group push-in setting); and parent counseling. 24 Parent #1 believes the IEP failed to mandate sufficient speech-language support, the class size of 8:1:1 would not provide an appropriate level of instruction, and the student-teacher ratio was lower than previously offered at preschool. [25]
On June 10, 2023, Parents received a school location letter for Student to attend Public School #2.[26] Parents toured Public School #2 on June [23], 2023. 27 Parent #1 objected to the placement at Public School #2 because the more significant number of children at the location would cause dysregulation for Student; the proposed classroom included students from kindergarten through the second grade; Public School #2 did not implement an ABA in the curriculum or have a BCBA on staff; Public School #2 employees could not confirm if other students would have behavior issues.[28] Private School Representative and Neuropsychologist both provided professional opinions regarding how the May 27, 2022 IEP was inappropriate for meeting Student’s needs.[29] Specifically, they state that the May [27], 2022 IEP fails to: mandate the degrees of individual support, fails to address Student’s interfering behaviors in a meaningful way; lacks explicit behavior or social-emotional goals; and has an insufficient amount of support for Student’s language and sensory needs. [30]
After that, Parents sent a “Ten-Day” notice on August [24], 2023 to explain their concerns with the IEP and recommended placement, gave notice of their unilateral placement of Student at Private School and their intention to seek DOE funding for tuition for the 2022-2023 school year. [31] Private School Private School Representative provided testimony regarding the curriculum and Student’s progress at Private School during the 2022-2023 school year. Private School Representative is the Head of School and a Behavior Analyst.[32] They possess a Doctor of Philosophy in Behavior Analysis and Behavioral Disorders, a Master’s Degree of Philosophy in Applied Behavior Analysis, a Master’s Degree of Arts in Curriculum and Teaching, and Bachelor of Arts Degrees in Psychology and Asian Language and Literature.[33] In addition, they are Board Certified Behavior Analyst-Doctoral® (BCBA-D®), certified special and general education teacher, a certified School Building Leader (SBL), and a Licensed Behavior Analyst (LBA) in the State of New York.[34] Private School Representative’s job responsibilities include: hiring and supervising professional staff; reviewing current student records; interviewing prospective students; conducting preference assessments of newly admitted students; supervising and training teaching staff on the implementation of the school’s curriculum and special education and related services; and monitoring, and reviewing, the behavioral progress of current students. [35]
Private School is an independent private special education school designed for mid to highfunctioning children with ASD ages five to fifteen.[36] Private School offers intensive related services of speech and language therapy, occupational therapy, physical therapy, and counseling. [37] Private School provides students with a comprehensive ABA approach that includes developing a functional behavior analysis (FBA) and behavior intervention plan (BIP) and school-wide multidisciplinary proactive measures focusing on antecedent and consequence procedures.[38] The facilities at the school include six (6) therapy rooms, a sensory and indoor gym equipped with mats on the walls and floor, hooks for suspended equipment, balancing equipment, trampolines, and an outdoor playground.[39] The classrooms are led by certified special education, a BCBA head teacher, and two (2) assistant teachers working collaboratively with a licensed speech and language pathologist, occupational therapist, physical therapist, social worker, registered nurse, and other professionals. [40]
Private School Representative is familiar with Student’s special education and related services requirements.[41] Private School developed an individualized education plan for Student.[42] Student’s class contains six (6) students, one (1) classroom teacher, and two (2) assistant teachers (6:1:2).[43] Student is provided with individual and group ABA therapy throughout the day,[44] an individualized education program,[45] and related services of three speech-language therapy session (two [2] 30-minute per week sessions in an individual setting and one [1] 30-minute per week session in a group setting);[46] and three (3) individual occupational therapy session a week. [47] Student also uses an Augmentative and Alternative Communicative (AAD) device. [48]
Private School Representative testified Student had made academic and behavioral progress during the 2022-2023 school year at Private School. Specifically, Student has demonstrated: a 70% decrease in problem target behaviors; the ability to sit and attend to instruction for more extended periods; the need for fewer prompts during 1:1 meetings and group instruction; an increase in the ability to follow one-step instructions and multi-step classroom routines; a growth in responding to teacher questions and requesting wanted items; and progress in labeling letters, numbers, and shapes. [49]
Credibility
Upon considering the evidence, including all admitted documents and the testimonies of the witnesses, I determine the following. In accepting the documents, I found them all relevant and representative of the facts for which they were offered. The weight I afforded them will be reflected in the analysis. As for the witnesses, I found no reason to doubt the veracity of their statements or the earnestness of their relevant opinions. Therefore, I find all the witnesses and their testimonies credible. The relative weight I afford them will likewise be reflected in the analysis. It is noted that, although the DOE cross-examined Parents’ witnesses, said cross-examination did not serve to rebut the relevant testimony in question.
CONCLUSIONS OF LAW AND ANALYSIS
FAPE
A district must pay for the cost of a student’s tuition at a private school if the three prongs of the Burlington/Carter test are satisfied: (1) the DOE denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition. [50]
The IDEA provides that children with disabilities are entitled to a FAPE.[51] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.[52] When the local education district complies with the procedural requirements outlined in the IDEA, and when the IEP developed through those procedures is reasonably calculated to enable the student to receive educational benefits, a FAPE has been established.[53] To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[54] The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” [55]
For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.”[56] Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE.[57] The IDEA requires school districts to provide appropriate education to students with disabilities, "not one that provides everything that might be thought desirable by loving parents." [58]
In New York, 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 or person in a parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. [59]
A) 2021-2022 School year I hold that the September 13, 2021 IEP was inappropriate for meeting Student’s individual needs and failed to provide Student with a FAPE for the 2021-2022 school year. As such, the request for compensatory services is GRANTED, as detailed below.
Compensatory education is an equitable remedy, so principles of equity and fairness come into play and may impact whether compensatory education is awarded or the award amount.60 Furthermore, a request for compensatory relief may be denied if there is an insufficient causal link in the record between any deprivation and the student’s current deficits. 61 A hearing officer may award compensatory education relief through supplemental special education or related services when there has been a denial of a FAPE. 62 An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period and if such deprivation of instruction can be remedied by providing additional services before the student becomes ineligible for instruction because of age or graduation. An award of additional services should aim to place a student in the position they would have been in had the district complied with its obligations under the IDEA. 63
The DOE has the burden of proof on the issue of compensatory education. 64 However, just because the DOE does not submit a case does not mean the parent is necessarily entitled to their entire requested compensatory remedy. Requested hours may be limited if the need for them is inadequately supported by the record, would lead to diminishing returns, or could overwhelm the student. 65 In this action, the DOE failed to meet its burden of persuasion and production. The DOE offered no explanation, evidence, or witness testimony as to how the September 13, 2021 IEP is reasonably calculated to enable Student to make progress appropriate considering their
60 See, e.g., Garcia v. Bd. of Educ. of Albuquerque Pub. Schs., 49 IDELR 241 (10th Cir. 2008); Application of Student with a Disability, Appeal No. 21-244. 61
See, e.g., Phillips v. Dist. Of Columbia, 932 F Supp 2d 42 (D.C. Cir. 2013) (upholding denial where student received a similar level of comparable services during the period of deprivation and there was support in the record for IHO’s conclusion that the student’s current difficulties do not stem from the FAPE denial); T.B. v. Prince George's Cty. Bd. of Educ., 897 F3d 566 (4th Cir. 2018) (parents failed to prove a loss of educational benefits where teachers showed that when student attended class he performed well and completed assignments); Somberg v. Utica Cmty. Schs., 908 F3d 162 (6th Cir. 2018) (holding that Endrew F. standard is not applicable to determination of compensatory education and it is appropriate to consider any advancement made by the student in crafting an award, regardless of the substantive appropriateness of the IEP); Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F3d 1489 (9th Cir. 1994) (denying compensatory education where the student was able to graduate with his class and the parents had declined the district’s offer of extra services). 62 See P. v. Newington Bd. of Educ., 546 F3d 111, 123 (2d Cir. 2008). 63 Id. 64 See M.M. v. New York City Dept. of Educ., 2017 WL 1194685, 4 (SDNY 2017); Doe v. East Lyme Bd. of Educ., 790 F3d 440, 457 (2d Cir. 2015); Reid ex rel. Reid v. Dist. of Columbia, 401 F3d 516, 524 (DC Ct of App 2005); Application of Student with a Disability, Appeal No. 21-169. 65 See M.M., 2017 WL at 8 (“[c]ommon sense and experience teaches that services that may be valuable for, or even critical to, a child’s educational achievement when provided in small to moderate amounts may become useless, or even burdensome, if provided in overwhelming quantity.”); Application of Student with a Disability, Appeal No. 21-
213 (“While the district failed to present evidence or its view of an appropriate compensatory education award, the IHO was not required to award all of the relief that the parents sought. Such an outright default judgment awarding compensatory education-or as in this case, any and all of the relief requested without question is a disfavored outcome even where the district's conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious.”), citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005). circumstances. Therefore, I hold that DOE failed to offer Student FAPE for the 2021-2022 school year.
Moreover, Neuropsychologist’s professional opinion is that the September 13, 2021 IEP did not meet the student's special educational needs. Specifically, they state: that the IEP did not mandate ABA instruction or any other evidence-based teaching methodology for students with ASD; this program did not meet Student’s language needs; it required more intensive speech-language therapy than what was mandated; Student’s language support should have also been integrated into Student’s academic curriculum; the program did not provide Student an appropriate amount of academic instruction; and the IEP includes few academic-related goals for Student. [66]
Further, Parent #1 testimony establishes: that the curriculum during the 2021-2022 school year focused primarily on social communication and play skills; the classroom was not fully staffed for the entire school year; and a special education teacher was absent from the class for a significant portion of the school year.[67] DOE offers no evidence or testimony to demonstrate the staff levels at Public School #1 or that the staffing issues did not impair Student's progress. Accordingly, these factors indicate the September 13, 2021 IEP impeded the child’s right to a FAPE and caused a deprivation of educational benefits.” [68]
Furthermore, the evidence establishes Student has been denied appropriate services for an extended period because the September 13, 2021 IEP did not meet Student’s individualized special education needs. According to Neuropsychologist’s uncontested professional opinion, the program offered Student in preschool fell sort of the support they required, and Student’s academic and communication skills are behind where they should have been.[69] Neuropsychologist expressed a professional opinion regarding Student’s expected academic level if the DOE had provided Student with appropriate support during the 2021-2022 school year.[70] They express the opinion that Student should have received at least 10 hours of ABA-based instruction with one (1) hour per week of BCBA supervision during the two 12-month school years.[71] As such, Neuropsychologist’s professional recommendation is for Student to receive 920 hours of ABA instruction with 92 hours of BCBA supervision to address the deficits developed due to the inappropriate speech-language support provided by the DOE. [72]
Also, Neuropsychologist’s professional opinion is that the preschool years were critical for language development, so compensatory services are required because of the inappropriate services provided during preschool.[73] Neuropsychologist’s professional opinion is Student should have received at least an additional hour per week of speech-language therapy. Their professional opinion is that Student requires 200 hours of compensatory speech-langue therapy to address the deficits developed because of the inappropriate speech-language support provided by the DOE.[74] The DOE Representative argued that the amount of compensatory service hours is excessive without giving any testimony or evidence to contradict the recommendations of Neuropsychologist or show an alternative level of services needed to support Student’s development.
As a result of the above, the DOE failed to provide Student with a FAPE in the 2021-2022 school year, and the compensatory services recommended by Neurophysiologist are aimed at placing Student in the position they would have been in had the district complied with its obligations under the IDEA.[75] Accordingly, an award of compensatory services is GRANTED in an amount and terms detailed below.
B) 2022-20223 school year. I hold that the DOE made procedural and substantive violations in creating the May 27, 2022 IEP, which sufficiently established a denial of FAPE for Student; Private School was an appropriate placement for Student; and the equities in the action favor Parents’ actions.
Prong I
As detailed herein, the DOE did not establish under Prong I that FAPE was provided to Student for the 2022-2023 school year.
As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden. The DOE offered no explanation, evidence, or witness testimony on how Student’s IEP is reasonably calculated to enable Student to make appropriate progress considering their circumstances. Accordingly, I hold that DOE failed to offer Student FAPE for the 2022-2023 school year.
Moreover, the testimony of Neuropsychologist and Private School Representative details the extensive experience and training in special education. Both witnesses testified that the May 27, 2022 IEP was inappropriate for Student.[76] A review of the record establishes that the weight of the evidence (or lack thereof) supports the conclusion that DOE failed to offer Student an educational program reasonably calculated to provide a FAPE for the 2022-2023 school year.
As a result of the above, I hold that DOE failed to provide Student with a FAPE for the 2022-2023 school year under Prong I of the Burlington/Carter standard.
Prong II
As detailed herein, Parents sufficiently established that Private School was a proper placement for Student.
A private school placement must be “proper under the Act.”[77] To be proper, a private school must offer an educational program that meets a student’s special education needs.[78] A parent seeking tuition reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”[79] When determining whether a unilateral placement is appropriate, the issue turns to whether the placement is “reasonably calculated to enable the child to receive educational benefits.”[80] A private school placement is appropriate when it provides instruction designed to meet a student’s unique needs.[81] A parent needs only demonstrate that the placement provides educational instruction specially designed to meet the individual needs of a student with a disability, supported by such services as are necessary to permit the child to benefit from instruction. [82]
Taken as a whole, the testimony and documentary evidence show Private School meets the Frank G. standard and “provides educational instruction specially designed to meet the unique needs” of Student that will enable them to make progress. The evidence demonstrates that Private School is an appropriate placement because they: (1) specialize in serving students with ASD and has hired teachers specially trained to do so; 83 (2) provide Student with a student-to-teacher ratio of 6:1:1 for academic instruction, which, in turn, appropriately supports Student’s learning needs; [84] (3) has facilities designed to assist the Student;[85] and (4) Student is making objectively established progress. [86]
Private School provides services in compliance with the needs of Student. Specifically, Private School has demonstrated that Student is making educational progress. Namely, Private School Representative reported: a 70% decrease in problem target behaviors; Student was able to sit and attend to instruction for more extended periods; Student required fewer prompts during 1:1 meetings and group instruction; an increase in Student’s ability to follow one-step instructions and multi-step classroom routines; progress with Student responding to teacher questions and requesting wanted items; and progress with Student labeling letters, numbers, and shapes. [87] Parents also reported seeing progress while Student attended Private School, i.e., improvement in
83 Ex. Q at ¶9 and ¶11. Student’s language and ability to communicate their needs; transitioning between activities; following directions; academic skills; and the ability to identify letters, numbers, and shapes. [88]
As a result of the above, I hold that Parents have met their burden in proving Private School offered an educational program that met Student’s needs under Prong II of the Burlington/Carter standard.
Prong III
As detailed herein, the equities favor Parents so that funding the unilateral placement of Student at Private School is appropriate.
Under the third Burlington/Carter prong, courts consider “equitable factors” relevant to an order of tuition.[89] “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [DOE] throughout the process to ensure their child receive[s] a FAPE.”[90] Specifically, equitable considerations include the Parent’s participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the DOE. [91]
In this action, Parents attended the IEP meetings in 2021 and 2022, engaged in a dialogue about Student’s education plan, and expressed their concerns about the IEPs (specifically regarding the disagreement with the DOE evaluation in 2021, the request for an ABA program and disagreement with the class size proposed by the DOE for 2022).[92] The testimony establishes. Parents attempted to contact the proposed 2022-2023 placement location for inspection and inquired about services and class structure.[93] Parents provided timely “Ten-Day” notice of their concerns with the DOE not offering a FAPE for Students for the 2022-2023 school year.[94] Parents detailed specific concerns regarding Student’s special education in the “Ten-Day” notice. [95] Furthermore, Parents gave the DOE timely notice of their intention to place Student at Private School unilaterally. [96]
Parents seek reimbursement for their Private School tuition costs and to have the remainder of unpaid tuition sent directly to Private School. This is an available remedy under the IDEA. [97] The Parents signed a contract with Private School for the 2022-2023 school year.[98] The DOE Representative argued that the equities do not favor Parents because Parents did not intend to accept any DOE-recommended placement at a public school. DOE Representative based their claim on the commencement of the application process at Private School several months before the school year started and signing the contract in June 2022. The testimony sufficiently established Private School admission process involves multiple interviews and evaluations to ensure the school understands and can meet a student’s educational and behavioral needs.[99] I hold that the early commencement of the admission process and signing the admission contract to reserve a placement at the Private School does not demonstrate any lack of genuine involvement by Parents. The testimony demonstrates multiple instances of Parents involvement and communication with the CSE to create the IEP.[100] Moreover, the Private School contract contained a clause allowing Student withdrawal without a financial penalty if Parents accepted a placement from the DOE.[101] Accordingly, I do not find any grounds to show a lack of genuine involvement or that the execution of the enrollment contract in June 2022 warrants any equitable reduction in the award of tuition funding for the 2022-2023 school year.
I also hold that there is no issue with the reasonableness of the costs associated with Private School, including tuition. Moreover, the weight of the evidence establishes that Parents cooperated with the DOE and the CSE’s efforts to develop an IEP. [102]
As a result of the above, I hold the equities in the action favor the Parents under Prong III of the Burlington/Carter standard.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
(1) The DOE denied Student a FAPE for the 2021-2022 school year, and
(2) The Parent’s claim for compensatory services is GRANTED. The DOE shall fund nine hundred twenty (920) hours of one-to-one ABA instruction, fund ninety-two (92) hours of BCBA supervision, and fund two hundred (200) hours of one-to-one speech-language therapy compensatory education for Student. Payment is to be made at the provider’s market rate within thirty (30) days of the DOE’s receipt of the respective provider’s invoice. Such services:
a. must be used within three years of the date of this Order; and
b. may be provided in person or remotely; and
c. must be provided by an individual holding a New York State license or certification in the respective areas. IT IS FURTHER ORDERED THAT:
(3) The DOE denied Student a FAPE for the 2022-2023, and
(4) Parents’ claim for tuition reimbursement/direct funding for Student’s unilateral placement at the Private School is GRANTED for the 2022-2023 school year. The DOE shall directly fund Student’s tuition at the Private School for the 2022-2023 school year in an amount not to exceed $96,367.52 within 30 days of receipt of the invoice from the Private School; and it is further
ORDERED THAT:
(5) Parents’ claim for transportation services is GRANTED. The DOE shall provide and reimbursement/direct fund, with payment to be made at the provider’s market rate, for special education transportation for Student to and from their home and Private School, for the 2022-2023 school year, in an air-conditioned vehicle with limited time travel between Student’s home and Private School.
So Ordered.
Kevin T. McGrath Dated: May 10, 2023 Kevin T. McGrath, Esq. (signed electronically) 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.
APPENDIX A – REDACTION IDENTIFICATION PAGE
Redacted Information Term Used In FOFD
REDACTED Student
REDACTED Date of Birth
REDACTED Student’s I.D. Number (OSIS)
REDACTED Parent #1
REDACTED Parent #2
REDACTED DOE Representative
REDACTED Parent Representative
REDACTED Private School
REDACTED Private School Representative
REDACTED Neuropsychologist
REDACTD Public School #1
REDACTED Public School #2
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
DISTRICT EXHIBITS
None
PARENT EXHIBITS
A. Due Process Complaint 1/17/23 12 pages
B. Ten Day Notice 8/24/22 4 pages
C. Ten Day Notice Email with DOE Receipt 8/24/22 1 page
D. Email chain between parents and preschool 11/8/21 2 pages
E. Email chain between parents and preschool 11/12/21 4 pages
F. Neuropsychological Evaluation 2/9/22 20 pages
G. Email chain between parents and preschool 4/14/22 2 pages
H. Email chain re: school location letter questions + response 6/14/22 11 pages
I. Email thread re: response to SLL questions 7/7/22 2 pages
J. Enrollment Contract, REDACTED 6/24/22 15 pages
K. REDACTED individual classroom schedule 2022-2023 1 page
L. Educational Progress Report 1/27/23 6 pages
M. Occupational Therapy Progress Report 1/29/23 3 pages
N. Speech Therapy Progress Report O REDACTED CV NA 8 P REDACTED CV NA 9 1/30/23 3 pages
Q. Affidavit of Testimony of REDACTED NA 16 pages
R. Affidavit of Testimony of REDACTED NA 6 pages
S. Affidavit of Testimony of REDACTED NA 5 pages
IHO EXHIBITS
I. Prehearing Conference Summary and Order, with email transmitting the document to the parties. 3/21/23 5 pages IHO
II. Notice of Appearance from DOE 4/21/23 1 page IHO
Footnotes
[1] Ex. A
[2] Id.
[3] Id.
[4] Parents request reimbursement in the amount of $96,367.52, which they indicate was a pro-rated reduction in the tuition charged by Private School since Student did not attend for a full 12-month period.
[5] Ex. A
[6] IHO Ex. I
[7] IHO Ex. II
[8] See Appendix B
[9] Ex. F-14
[10] Id. at ¶12.
[11] Id at ¶13.
[12] Id at ¶14.
[13] Id. at ¶16.
[14] Id. at ¶17.
[15] Id. at ¶18; see also Ex D and G.
[16] Hereinafter referred to as “2022 Neuropsychological Evaluation”.
[17] Ex F; Ex R at ¶6.
[18] Ex F; Ex R at ¶9-10
[19] Ex. R at ¶11-15.
[20] Id.
[21] Id.
[22] Id.
[23] Id. at ¶19.
[24] Id.
[25] Id. at ¶20.
[26] Id. at ¶21.
[27] Id. at ¶22.
[28] Id.
[29] Ex. Q at ¶45 and Ex. R at ¶15.
[30] Ex. Q at ¶45 and Ex. R at ¶15.
[31] Id. at ¶23; Ex. B.
[32] Id. at ¶1.
[33] Id. at ¶2.
[34] Id. at ¶3
[35] Id. at ¶7.
[36] Ex. Q at ¶9.
[37] Id.
[38] Id.
[39] Id. at ¶18.
[40] Id. at ¶11.
[41] Id. at ¶28.
[42] Id. at ¶29; See also Ex. K.
[43] Id. at ¶31.
[44] Id. at ¶32.
[45] Id. at ¶39.
[46] Id. at ¶39.
[47] Id. at ¶40.
[48] Id. at ¶39.
[49] Id. at ¶43; Ex L (Education Progress Report); Ex. M (Occupational Therapy Progress Report); and Ex. N (Speech-language Therapy progress Report).
[50] See Sch. Comm. of Burlington v. Dept. of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7, 12-15 (1993).
[51] 20 U.S.C. §1400(d)(1)(A).
[52] See 34 C.F.R. § 300.13.
[53] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 US 176, 206-207 (1982).
[54] Endrew F. v. Douglas County Sch. Dist. RE-1, 580 US 386 (2017).
[55] 20 U.S.C. § 1415(b)(6)(A).
[56] 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2).
[57] J.L. v. New York City Dept. of Educ., 324 F Supp 3d 455, 467 (SDNY 2018); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed App 12, 14 (2d Cir. 2011)
[58] Walczak v. Florida Union Free Sch. Dist., 142 F3d 119, 132 (2d Cir. 1998), quoting, Tucker v. Bay Shore Union Free Sch. Dist., 873 F2d 563, 567 (2d Cir. 1989).
[59] NY Educ. Law § 4404(1)(c).
[66] Ex. R at ¶11-15.
[67] Ex. S at ¶18; Ex. D, E, and G.
[68] 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2).
[69] Ex. S. at ¶12-13.
[70] Id.
[71] Id.
[72] Id.
[73] Id.
[74] Id.
[75] See P. v. Newington Bd. of Educ., 546 F3d 111, 123 (2d Cir. 2008).
[76] Ex. Q at ¶45 and Ex. R at ¶15.
[77] Carter, 510 US at 12, 15; Burlington, 471 US at 370.
[78] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F3d 105, 112, 115 (2d Cir. 2007); Walczak, 142 F3d at 129.
[79] Gagliardo, 489 F3d at 112 (“Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.”; Frank G. v. Bd. of Educ. of Hyde Park, 459 F3d 356, 364 (2d Cir. 2006).
[80] Frank G., 459 F3d at 364; see Gagliardo, 489 F3d at 115.
[81] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 C.F.R. § 300.39(a)(1); 8 NYCRR § 200.1(ww); Hardison v. Bd. Of Educ. Of the Oneonta City Sch. Dist., 773 F3d 372, 386 (2d Cir. 2014)..
[82] Gagliardo, 489 F3d at 112, citing Frank G., 459 F3d at 364-65.
[84] Id. at ¶30-31.
[85] Id. at ¶18.
[86] Id. at ¶43; Ex L (Education Progress Report); Ex. M (Occupational Therapy Progress Report); and Ex. N (Speech-language Therapy progress Report).
[87] Id. at ¶43; Ex L (Education Progress Report); Ex. M (Occupational Therapy Progress Report); and Ex. N (Speech-language Therapy progress Report).
[88] Ex. S at ¶26.
[89] Gagliardo, 489 F3d at 112.
[90] Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at 6 (SDNY 2007).
[91] D.A. v. New York City Dept. of Educ., 769 F Supp 2d 403, 419-20 (SDNY 2011).
[92] Ex. S at ¶13, ¶14, ¶19, and ¶20.
[93] Id. at ¶22.; Ex. H.
[94] Id at ¶23; Ex. B.
[95] Id.
[96] Id.
[97] See Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F Supp 2d 403, 406 (SDNY 2011) (parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”).
[98] Ex. J-15.
[99] Ex. Q at ¶24.
[100] Ex. J at ¶5(e)
[101] See M.H. v. N.Y.C. Dept. of Educ., 685 F3d 217, 254 (2d Cir. 2012); see also C.F. ex rel. R.F. v. N.Y.C. Dept. of
[102] Educ., 746 F3d 68, 82 (2d Cir. 2014).