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CASE NUMBER: 597480 - NYC: 246777
FINDINGS OF FACT AND DECISION
Student’s Name1: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: # [REDACTED]
Hearing Requested by: [REDACTED] (“Parents”)
Request Date/Date Complaint Filed: 03/20/2023
Date(s) of Hearing: 06/16/2023, 07/11/2023, & 07/18/2023
Actual Record Closed Date: 08/25/2023
Date of Decision: 08/25/2023
Date of Distribution if Different than Decision Date: n/a Time Sensitive: No Hearing Officer: Harry A. Christodoulou
1 Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 16, 2023:
For the Student:
[REDACTED] (hereinafter referred to as “Parents’ representative”)
For the Department of Education:
[REDACTED] (hereinafter referred to as “District’s representative”)
Other:
Observers (defined below)
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 11, 2023:
For the Student:
Parents’ representative
[REDACTED] (hereinafter referred to as “Parent”)
[REDACTED] (hereinafter referred to as “Parents’ Witness 1”)
[REDACTED] (hereinafter referred to as “Parents’ Witness 2”)
For the Department of Education:
District’s representative
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 18, 2023:
For the Student:
Parents’ representative
For the Parents:
For the Department of Education:
District’s representative
BACKGROUND AND PROCEDURAL HISTORY
Student is a [REDACTED]-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). Student’s eligibility for special education supports and services is not in dispute.
On March 192, 2023 Parents, through Parents’ representative, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA (Ex. DOE-1). I was appointed on March 20, 2023, to preside over the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1) to determine the claims in the DPC concerning Student’s special education program.
It is asserted in the DPC that, based on numerous procedural and substantive grounds, the DOE failed to offer Student a free and appropriate public education (“FAPE”). Parents sought, inter alia, a finding and order that: the Individualized Education Program (“IEP”) developed by the DOE was procedurally and substantively improper to offer Student a FAPE for the 2021-2022 school year (“SY”); the School (defined below) was an appropriate and necessary placement for Student; Parents are entitled to reimbursement and/or direct payment to the School for the 2021-2022 SY and/or direct payment to the School “for these tuition costs”; the DOE will reimburse Parents and/or the School for the provision of Student’s mandated related services; and any further relief deemed just and proper (Ex. DOE-1-4).
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA3 and its implementing regulations,[4] and the New York State Education Law5 and its implementing regulations.[6] Impartial Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act if delegated the authority by the Local Education Agency (LEA). The DOE delegated to the New York City Office of Administrative Trials and Hearings (“OATH”) the authority to adjudicate due process complaints under Section 504.[7] Parents’ representative confirmed that there was no final relief sought under Section 504, and I therefore do not address Section 504 further in this decision.
2 The DPC was filed on Sunday, March 19, 2023 at 7:08 p.m. and is therefore reflected in the Impartial Hearing System as “requested on” March 20, 2023.
3 20 U.S.C. § 1400 et seq.
5 Educ. Law Art. 89 § 4404 et seq.
PARTIES’ POSITIONS AND CASES PRESENTED
District’s representative made an opening statement asserting, inter alia, that: the DOE held an IEP meeting on April 15, 2021 and noted the program that was recommended for Student, indicating that it was clear from the description of the services that Student had significant needs; the DOE sent a prior written notice (“PWN”) and a school location letter (“SLL”), placing Student at the proposed School (defined below), which is a District 75 school and a general education site; the DOE complied with its procedural and substantive requirements, would be relying on documents to support its argument under Prong 1; and certain bases relied upon for Prongs II and III to support a request to deny Parents’ claims (TG8. P35-P41).
The DOE, through the District’s representative, submitted thirteen documents in support of the DOE’s case (TG. P34, & P115). There were no formal objections to any of the documents being admitted at the main hearing (TG. P29). There was one affidavit in the DOE’s disclosure (Ex. DOE-5), which was initially held back by me from being admitted as District’s representative had reserved the right to cross-examine the affiant (Parents’ Witness 2). District’s representative reserved the right to subpoena Parents’ Witness 2 if Parents were not calling him to testify. Parents’ Witness 2 did appear at the IH to testify and the affidavit was admitted (T. P115). District’s representative confirmed that the DOE rested its case (TG. P41).
Parents’ representative made an opening statement (T. P5, & P6) addressing, inter alia: how the IEP that was developed for Student failed to offer Student an appropriate special education; how Parents enrolled Student in the School that was a small, special education school for students with a diagnosis of autism, providing one-to-one applied behavioral analysis (“ABA”) for students and head therapies and related services provided to the students during the school day; the witnesses that would testify; and what the case was about. Parents, through the Parents’ representative, submitted ten documents in support of the Parents’ case, which were admitted to the record (T. P140)9. There were no formal10 objections to any of the documents being admitted at the main hearing (T. P20). Parents’ representative confirmed that Parents rested their case (TG. P169).
Both parties made oral closing statements (T. P169-P183). All exhibits that are admitted to the record are listed below (see Appendix B).
8 There were two different transcription services used. Transcripts prepared by Geneva Worldwide, Inc. are referenced as “TG”, and the transcript of the hearing prepared by e-Scribers is referenced as “T”, followed by the page number in each case.
9 Parents’ disclosure initially included duplicates, which Parents’ representative removed prior to presentation of Parents’ case (TG. P29, & T. 7). Two exhibits (Ex. P-C, & P-J) were also withdrawn/excluded (T. P8, P9, P140).
10 There was a query raised regarding Exhibits P-I and P-K, but it was resolved during questioning of Parents’ Witness 1 and therefore no formal objection was raised to those Exhibits (T. P10, P11, & P98).
ISSUES IN DISPUTE
The DOE initially contended that Student was offered a FAPE for the SY at issue (Prong I), but in the end challenged Parents’ case based on Prongs II and III only. It is asserted in the DPC that the School was an appropriate and necessary placement for Student (Prong II) (Ex. DOE-1-4), which is disputed by the DOE. The DOE also relies upon equitable considerations to assert that the equities do not favor Parents (T. P35-P41; P160-P179). Accordingly, Prongs II and III must be determined, as well as the appropriate remedy, if any.
PREVAILING PARTY
Parents are the prevailing party, having determined that Student was denied a FAPE for the 2021-2022 SY, that the School was an appropriate placement, and that the equities afford Parents some relief. An adjustment to the final amount awarded has been made based upon equitable considerations (see below).
LEGAL FRAMEWORK
A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits11.
If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits12.
The IDEA directs that, in general, an IH officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE13.
A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" [14].
11 Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
12 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].
13 20 U.S.C. § 1415[f][3][E][i].
To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP15. Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material"16.
The IDEA does not automatically require the provision of school services during the summer months for all students with disabilities; rather, such services must be provided when they are a necessary element of a FAPE for the student.[17]
The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim.[18]
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 parental relationship seeking tuition reimbursement or direct funding for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement – which is applicable in this case.[19]
FINDINGS OF FACT AND DECISION
[I] Denial of a FAPE:
The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” [20]
15 Houston Indep. Sch. Dist., 200 F.3d at 349; Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]
16 A.P., 370 Fed. App'x at 205; Van Duyn, 502 F.3d at 822; Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D.D.C. 2007].
The DOE submitted documentary evidence and required Parents’ Witness 2 to be called as a witness to testify. District’s representative confirmed however in closing that the DOE had not put on a Prong I case “and will not do so”, electing to skip straight to Prongs II and III (T. P170).
In limited circumstances a finding in favor of the DOE on Prong-I is appropriate, despite there being no testimony from any witnesses in support of the DOE’s case21. Given however the objections raised by Parents in the DPC to the recommended program, I am unable to determine that the IEP was sufficient based solely on its contents, without testimony or documentary evidence to explain why the CSE team’s recommended program would offer the student “an opportunity greater than mere trivial advancement”, why it would meet Student’s unique needs, and why it was reasonably calculated to enable Student to receive educational benefits, particularly given the testimony and disclosed documents on record.[22] The program does not have the same level of supports, particularly the provision of ABA services, which given Student’s diagnoses were an integral component to Student’s program at the School, necessary to afford Student a FAPE.
I therefore find that the District did not discharge its Prong I burden. Parents have therefore met the first criterion of the three-part test set out in the Burlington/Carter case.
Prong II - Appropriateness of Parents’ Placement:
Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student.” [23]
The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.”[24] The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. The standard to apply is whether “[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child.” [25]
21 See Application of a Student with a Disability, No. 23-090.
The Judges in the Gagliardo case wrote that “no one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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”[26] (my emphases).
In both instances highlighted above, the focus is on the needs of the child, which are individual and unique, and that the placement must reasonably serve those needs to an extent that permits the child to benefit from the instruction. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private placement need not provide certified special education teachers or an IEP.
Evidence on Record:
Parents’ representative presented testimony by Parents’ Witness 1, Parents’ Witness 2, and Parent, and submitted documentary evidence in support of the Parents’ position that the School placement was an appropriate placement for the 2021-2022 SY. Parents’ Witness 1, the School’s educational director, testified (T. P15-P99), inter alia, as to: Witness’ educational background, credentials, and employment history; Witness’s duties and responsibilities; a description of the School’s program, being a program for children that's are diagnosed, where the primary diagnosis when it comes to learning is that they have autism and require ABA as a methodology for teaching; how there is a one-to-one program and a more than one-to-one program, where for the latter there are more instructors with a student then when necessary, meaning “if it’s for behaviors, if it’s for learning, there is that ability as well”; how children receive speech and occupational therapy (“OT”) within the school day; how it is a 12-month SY, operating from July through June; and how there are multiple classrooms based on age and somewhat their level of development or abilities, where they try to match children along with peers that would be appropriate for them.
How everything is individualized for each and every student; how the School runs its own assessments, and creates its own IEPs and curriculum plans in all domains; how each student has their own individualized curriculum and that there is no curriculum that is followed by the entire class; how everything is broken down into small components steps that can be taught and data is taken to teach students what is required for them during their development and their abilities.
How for the SY at issue the School, in general, employed licensed or certified special education teachers; had about 21 or 23 students and probably at least 50 staff members; provided speech and OT and “everybody that worked in speech and [OT] are fully licensed in New York State”; how the School provided opportunities for professional development for their staff, both general and specific training for the needs of a child, for example if the needs of a child are a specific behavior plan, from their behavior plan every single person that has contact with the child is trained by the board certified behavioral analyst (“BCBA”) to make sure that there is an integrity of treatment with their child on how the program is implemented, and with the same thing happening with the curriculum; how the School employed consultants that consulted in Orton Gillingham, a consultant that came in for ABA, a consultant that came in for training with behaviors, a consultant that came in with the actual curriculum plan, which is the Autism Curriculum and Encyclopedia, the School’s online database, from New England Center; and how someone came in multiple times that SY for training for the individual needs of each staff member, as well as what their needs were for the students that they were working with.
How the School contracted with New England Center staff for the online database system that the School uses, and with that, came a consultant that was available to the School at all times online, on the phone, and also spent a number of days in the School’s building as well; how the consultant would work with children and on the database, with the consultants seeing the student, knowing what was happening, so that they would be able to help with how data entry should be taken on the data system, and how to change the programming and curriculum when needed for that specific child, because the child's curriculum was individualized; and therefore “some of the training went for each child with the student and the consultant to see how that would happen long-term for the kind of curriculum to be followed”.
Witness’ familiarity with Student, who met Student during the admissions process, along with the entire administrative assessment, which included the speech supervisor, the OT supervisor, the general director of the school, some of the curriculum supervisors, and possibly the BCBA, but Witness was not able to recall; how they spent time with Student; how Parents provided progress reports and assessments from Student’s prior school, which were reviewed after Student left; how Student was accepted at the School, because Student definitely demonstrated the need for ABA “with [Student’s] learning”; how Student’s behaviors were interfering with some of Student’s learning, and Student was able to learn with reinforcement; how what the School was looking at was the behaviors, and how they saw that Student could learn and did have some ability to repeat what was being taught with some reinforcement, so “ripple effect”; and how they knew that Student would be an appropriate learner because of the one-to-one curriculum that they were able to provide, using
ABA.
How when Student first began at the School, Student was assigned to a classroom, and there was a lead teacher, namely Teacher (defined below), who had a degree in neuroscience and psychology and was completing or had completed a master’s degree in ABA; how there were four other students besides Student in the classroom; how because of Student’s seizure disorder, Student required a health paraprofessional with Student at all times, so there were always two people with Student at all times (i.e., two-to-one); how each of the other four students had their own teacher, plus there was “a lead”, and the speech pathologist was part of the classroom, for a total of eight adults; how speech was part of the classroom, “so they are in the classroom all day” and rotate within the classroom; how OT could easily be pushed-in, pulled-out to the OT sensory gym, or the OT fine motor room, or the OT vocational area; and how the School had different spaces where they could work in the building, or depending on their skills, also the outdoors.
How when Student began attending the School, the School conducted a core skills assessment, which was used for the curriculum guideline and helped to generate what goals to work on, and for speech and OT did a battery of testing based upon each discipline that was criterion referenced to create an evaluation that would lead to goals that would be appropriate for Student; how after the evaluations were administered, goals were created and the speech, OT and ABA team would meet together to collaborate and service the child as a whole; how the goals were then scribed onto the School's curriculum plans or IEPs; how there was a combination of the speech and ABA curriculum as one plan and OT had a separate plan; and how before finalizing the plans, the directors of each division agreed to the goals and then would sit with Parents, discuss the goals, receive input on anything they wanted the School to change, add in, or take out, before finalizing the plans, which would then be used going forward after the School had met with Parents.
How part of Witness’s job with Student’s IEP was to help create those plans and oversee that they were being implemented with appropriate materials, where the student was making progress, making sure all the teachers were working with Student, and looking at Student’s schedule to see if Student had enough time, especially because Student required a lot of physical guidance with things; how Witness oversaw the overall curriculum progress, even met with Parents if needed, making sure that the teachers had appropriate training, and were doing what the curriculum required for Student; how Witness observed Student in the classroom daily and even worked with Student, providing some examples; and how, because of Student’s seizure disorder, the School had a seizure plan with everything written out specifically with Parents, and with the nurse in the school building, and making sure that every single person that had contact with Student was trained on the seizure protocol.
How Student had a comorbid diagnosis of autism and cerebral palsy, and epilepsy; how OT was heavily involved with how the School was teaching physically, because Student required arm guards to keep Student’s hands straight and wore leg braces throughout the school day; how the OT and physical therapist worked a lot in training “the one specific person who was with Student all day” on how to stretch Student, and on how often to stretch Student because it was required for the muscle movement with cerebral palsy; how using the strategies of ABA to make it motivational to wear Student’s physical supports, but that sometimes it would be more difficult for Student; how ABA was used for a short amount of time during stretching with reinforcement, and then increasing the time until Student was fully getting the right amount of stretching every day; and how the School had to shape it behaviorally because Student would get very frustrated “with these things” and would gets aggressive to oneself and others.
How the School conducted a functional behavior assessment (“FBA”) and figured out that some of the functions of Student’s behaviors were escape, to get out of the demand, because demands were hard for Student, some of it was to gain access to what Student wanted, and some of it was to gain access to attention as Student had learned through reinforcement that those behaviors could cause people to pay attention to Student; and how the School had to work more on giving Student attention for appropriate behaviors versus when maladaptive behaviors occurred.
How the School was in contact with Parents “countless amount of times”, having them involved in what was going on, and going through what was happening at home versus at School; how the School worked with Student’s home team, which included a BCBA and also an applied behavior analyst; how during the SY at issue
Student made progress, speaking to how Student showed progress even with the ability to come to school, as Student had a hard time even transitioning from home to school and would often have behaviors coming in, and did not even want to go to class; and how after preparing the school, Student was really happy and relaxed and engaged at School, different procedures for teaching were implemented once the assessments were done, and Student started making progress.
How the School implemented changes when needed, to alter things based upon Student’s needs; how with all the implemented change Student’s behaviors progressed, reducing aggression and self-injurious behaviors, being able to transition improved, Student’s communication improved, with Student being able to use Student’s device independently versus being prompted; how even Student’s receptive and expressive language with the device improved, with Student’s understanding ‘direction following’ having improved; how even things like eating, a skill that was being worked on with Student being able to use a spoon to eat, progressed throughout the SY; and how Student had severe maladaptive behaviors when beginning at the School, but with the behavior plan and teaching skills with communication and functional communication, the School was “able to reduce a lot of that”.
How the School was an appropriate placement for Student because Student made progress, because the School was able to use ABA to work on Student’s aggression and self-injurious behaviors, and even saw progress with learning, because once the School was able to give Student an appropriate way to communicate, and an appropriate way to learn, using ABA, the School opened up a world for Student where the School was able to teach.
Parents’ Witness 1 testified during cross-examination and redirect examination, inter alia, as to: How Student’s schedule changed daily and that the schedule on record (Ex. DOE-7) was a snapshot at a point in time, but what was constant was that Student always had a one-to-one aid and a teacher with her, so she was never alone with one person, and received speech and OT daily.
How for Student what was functional and appropriate was to build the skills that were necessary to improve language, communication, social skills, self-help skills, the readiness skills, “that maybe if we get past those things, there will be a time that reading and math become important or appropriate for this child”; how for academics, “what we’re looking at it the prerequisite skills to all skills”; how those were the things that were academics for Student because it was building all the foundation skills of understanding language and communication; how the School taught those things at the starting level of where Student showed on Student’s assessments, and that was where they start teaching, based upon the needs that Student was showing them; and how, therefore, the “academic time” as defined by the School would be the ABA sessions on the schedule, and that there were curriculum plans, and lesson plans written up for each and every one of the goals being taught, with ABA being the methodology used to teach those goals.
How The BCBA (defined below) has an ABA certification and was also certified in special education; how
Speech Pathologist (defined below) is licensed within New York State to work with children with speech and language disabilities with a certificate through the State Education Department; how Witness disagreed with District’s representative’s assertion that there was no-one, aside from The BCBA, who had specific special education training on the list of Student’s providers (Ex. DOE-8); how Provider27 1 was in a master’s program for special education and ABA, it being a dual required master’s degree, Provider 2 had experience and a master’s in ABA and psychology, Provider 3, was in a master’s program for special education, so he had special education training as well, and Provider 4, the speech supervisor, and Provider 5, also in speech and language, have backgrounds in teaching as well for language and communication.
How Initial Aid (defined below), who was hired because she had ABA experience and experience working with people with seizures and disabilities, was Student’s one-to-one aid when Student initially started at the School; how once Initial Aid completed her full training at the School and her bachelor’s degree, with the assessments and training she qualified to be promoted to ABA instructor, based upon what she was able to demonstrate from evaluations; how Initial Aid then became a teacher or ABA instructor; how Subsequent Aid (defined below) took Initial Aid’s place as Student’s individualized aid only after “one-to-one direct training with everything medical, with everything with the parents, with everything with the nurse, and with the OT and the PT, to make sure all that she [was] required to do was seamless”; and how Initial Aid and Subsequent
Aid received specific training for Student, that was provided by the occupational therapist and the physical therapist for stretching, and by the Nurse (defined below), who is a certified doctor in another country but in America is a certified nurse.
27
All providers being defined below.
How, when asked why the first term of the regular SY (referencing Ex. DOE-10) was blacked out, the extended SY is broken into quarters28, but that Student started in October, and by the time Student was fulltime, as the School does a transition period to acclimate the child, and the assessments were probably not done until the middle of October/November, with the plan being developed more towards
November/December, so there was nothing really to score at that point; how a score of “NYT=Not yet
Targeted” meant that Student did not have the prerequisite skills to being score for that skill at that point, so the School did not actually implement those lesson plans; how the goals included academic goals, with several examples provided that fell under language, which would be addressed by both an ABA provider and a speech provider, as it was a collaborative IEP between speech, OT and ABA – it was a combined IEP of Student’s receptive and expressive language because they were using the methodology of ABA to teach the behavior of or the operant of language; and how the only area on the IEP or curriculum where the ABA team would not work on was speech production29, as the speech providers are specifically trained on these exact skills and the ABA provider would not touch those areas, it not being within their professional field.
How the numbers on the Occupational Therapy IEP (Ex. DOE-11) in almost all areas were steady and did not increase over the course of the year; how there was a grade system at the bottom of the document explaining the grades (Ex. DOE-11-3); how it did not surprise Witness that most of the numbers were 1s and 2s, with some 3s, because Student is a child with severe physical disabilities, with cerebral palsy, with behaviors that fully interfered with Student’s learning, who required multiple opportunities over and over again, with lots of reinforcement and prompting to learn everything, and how everything needed to be broken down systematically; how even though there were short term goals in the document, each one of those short term goals was taught with even shorter term goals within the goal set, with Witness providing examples; how everything along the way had to be reinforced and taught, and for Student this was all very defined steps with teaching; and how for Student the 1 plus was progress because of the physical disability with the behavioral component; how with someone like Student it might not take 5 times to learn something or 10 times, but 100 opportunities to master one skill, because Student has to learn all the little steps in between to meet their short term objective.
28 The first quarter corresponded to July through September, the second from September through the end of November, the third from December through March, and the fourth from March through June (T. P77).
29 Witness referenced “Speech Production” on Page 2 and “Feeding” on page 3 of Exhibit DOE-10, where its written “Speech only”.
How for Witness she was satisfied with Student’s overall progress for the 2021-2022 SY; how when Student began at the School Student had no form of communication, neither with the communication device nor with augmentative communication, or with sign language; how Student had some device that someone had given Student, but Student did not know how to use it and really did not have a way to communicate except for having the best communication Student had when starting at the School, which was to tantrum, cry, scream, hit people, hit oneself, to get across Student’s wants and needs; how when Student left the School, Student was a different young adult because Student which was understood, so a lot of the behaviors disappeared; how Student learned how to wait; how Student was able to use the device and able to use some sign language, and was even able to vocalize with some sounds to give a yes or no kind of approval to things that Student wanted or did not want, which helped because Student was understood and knew that, which reduced Student hurting oneself and others.
Parent, testified (T. P147-P168), inter alia, as to how he chose the School because Student learns under an ABA program, and at that time that was best suited for Student to teach Student what student needed to do to advance, as well as it being based on a good recommendation from friends that it was the best program for Student; how Student needed OT to help Student to open fingers, fine motor skills, and help Student’s legs, to be able to walk on Student’s weak side; how speech was very good exercise for Student’s mouth, helping Student to eat, but also being non-verbal, it was to try have Student produce any sounds, and there were a little bit; how they had implemented the speech device in the School, which they still use; how Student “100 percent” made progress, such as being able to use Student’s right hand now more frequently, telling what Student wants on [REDACTED] device, which Student never did before, Student compensated for Student’s right-hand side weakness in eyes, legs, and hands; and how he believed that the School was an appropriate program for Student because of the advancements and progress he saw.
I find that the Student’s program at the Attending School was specifically designed to cater to a class or category of students, namely those with highly specialized needs due to one or more disabilities including a diagnosis of autism spectrum disorder, with complex behavioral, health, and cognitive challenges, who struggle to function in a general education setting, requiring one-to-one support and teaching, individualized programming and curricula that caters for the particular student’s pace and ability to learn. The entire program, including the learning approaches and the numerous supports provided were designed to meet the needs of this class or category of student, and Student fell into that class or category.
The program was so individualized that the necessary one-to-one aid was hired because Student was accepted to the School, and the individualized program and curriculum was changed almost daily, to cater for Student’s needs and what was going on for Student at any given moment in time.
District’s representative asserted that the School was not a school, but a service provider masquerading as a school, that there was no educational programing but only ABA services, OT, and speech (T. P171). Parents’ Witness 1 testified in depth as to the learning Student received through the ABA services and Parents’ Witness 2 testified that only the financial model had changed. While the School provided neither vision nor physical therapy, leading Parents to obtain and pay for the latter service on their own, I do not find this on its own sufficient to render the placement inappropriate (I address this again below). The progress Student made was real and Student benefited from the services provided by the School in a meaningful way, even without those missed services.
I find that Student’s educational needs were being met given the level of education, supports, and services provided by the School, as well as how the School specially tailored the program to Student’s specific learning and physical challenges. The testimony of Parents’ Witness 1 provided ample support and examples demonstrating how that was done. This evidence was not disputed through any testimony, let alone any expert testimony contradicting the testimony of Parents’ Witness 1, and supports Parents’ and Parents’ Witness 1’s assertion that the School was an appropriate placement for Student. Student was provided with educational instruction that was specifically designed to meet Student’s unique special education needs, supported by some services (I address this further under Prong III) that were necessary to permit Student to benefit from instruction for the 2021-2022 SY.
I do not find that the lack of academic programing, as asserted by District’s representative, renders the School an inappropriate placement (T. P173). It has been held that the IEP need not bring the child to grade-level achievement, but it must aspire to provide more than de minimis educational progress.[30] Just as parents cannot hold the DOE accountable and expect the DOE to guarantee that the IEP developed will result in a student with learning disabilities achieve certain grade-level progress compared to the student’s typically developed peers, by the same token, the DOE cannot hold such a student to the same level or standard of academic instruction required per week for it to be said that the student is being provided with an appropriate educational program. To hold otherwise would render meaningless the words “educational instruction specifically designed to meet the unique needs of the student” (my emphasis) from the given standard. Prong III - Equitable Factors:
Equitable considerations are relevant to fashioning relief under the IDEA.[31] I find several factors relevant that warrant a reduction of the Parents’ claim.
The IDEA also provides that reimbursement/funding may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents.[32]
Parents’ Witness 233, the School’s educational director of School’s Administration Entity (defined below), since May of 2022 testified (T. P102-P137), inter alia, as to: How Witness is the administrator overseeing the business operations and finances of the program that Parents’ Witness 1 had testified about, but not the educational component of the program; how everybody works for the School’s Administration Entity; how Witness reviews contracts, financial data, such as hours provided, rates charged, and deals with budgets and affidavits; how the people that work at the school are employees of the program through the School, which is a staffing agency; how the Executive Administrator (defined below) is the one who speaks and goes over the contract directly with the parents prior to signing it; how the center-based program operates on a service-based financial model, where the parents enter into a contract to provide a specific combination of services that comprise the educational program for the students, the frequency of services to be provided is specified in an addendum to the enrollment contract; how they bill separately for one-on-one ABA, BCBA supervision, speech therapy, and other related services, with all parents receiving a detailed explanation and a copy of the services that is provided before signing the enrollment contract and are aware of the cost.
33 Given that Parents’ Witness 2 was not employed until just prior to the end of the relevant SY, I am mindful that he had no personal knowledge of much of what he was testifying about, as he was not there at the relevant time.
How the cost of the program will have fluctuation, depending on which month of the year it is, which holidays fell in a certain month, absences by the student, etc.; how in addition to changes that are authorized by the parents, there are many times that the changes are authorized and triggered by Parents’ Witness 1 because a student’s needs can change during the course of the year and the program allows for maximum flexibility to support and educate the child; how in the middle of each month, the office will share with Witness a file containing the exact amount of hours, services, and providers’ names for each student for the previous month, and how those records are saved cumulatively on a monthly basis, so that at the end of the year there is an excel spreadsheet containing all the attendance records which are billed by the minute; how the school’s rates are based on market rates in the greater New York City geographical area and is based on rates charged by comparable programs, knowledge of rates that the DOE has been ordered to pay for similar services, and the school’s budget for overhead costs, such as materials and equipment for the program, maintenance of the program site, hiring, recruiting, retaining staff, professional insurances, and software.
How the school charged $45 per half-hour or $90 per hour for an aid or paraprofessional, and $125 per half hour for speech and OT; and how the cost of Student’s program for the relevant SY was a total of $369,789.60; how Student needed a significant amount of services due to Student’s complex medical situation, and needed a full time health paraprofessional five days a week all day in addition to the direct special education services, ABA one-to-one, the supervision and related services.
How the Parent will contract with School’s Administration Entity; how that entity is billing for services the Student received in this case; how the School was about to close sometime during the spring of 2021 and that the tuition charged was significantly less than the cost of the program; how the School ran on a model where it raised funding, but as a result of the pandemic some of the major donors perished, which triggered the founders to search for a company that had experience running special education programs; and how it changed the financial model that the School was operating on; how there is a clause in the contract that allows parents to defer payment until the conclusion of the due process hearing, and how in this case the hearing had not been completed (at the time when Parent’s Witness 2’s was testifying) and Parents had not yet been billed, but that the service affidavit, being a breakdown of the services provided on a monthly basis, had been shared with Parent.
During cross-examination of Parents’ Witness 2, it became apparent that the complete contract between the School Administration Entity and Parents had not been disclosed.
District’s representative informed Parents’ Witness 2 that he had stated that the number of services was specified in the contract and was asked to show where that was. Parents’ Witness 2 responded “It looks like your exhibit is missing one page, because it is three pages and it actually has four pages”, surmising that it may have been a clerical error. Whilst the failure to provide a complete copy of the enrolment contract on its own seems less significant, when taken together with various other factors (addressed below), it raises serious questions regarding the reliability of the underlying data which forms the basis of the amount being claimed.
Firstly, when the DOE’s draft subpoenas had been received and before it had been authorized (signed) and served on the School and the School Administration Entity, the School/School Administration Entity went ahead and prepared the documents responsive to the draft subpoenas comprising some 362 pages (TG. P6) and delivered those to District’s representative. The subpoenas were, however, still finalized pursuant to District’s representative’s request and expectation that anything missing would be provided (TG. P6, & P7). According to Parents’ Witness 2, “without that piece of paper, you cannot infer the services and the cost” (T. P117). Yet despite its importance and despite being under subpoena, at no point has this critical piece of evidence ever voluntarily been handed over by either the School, the School Administration Entity, or Parents.
Parents’ initial disclosure proffered included duplicates that were contained in the DOE’s disclosure. At my request, Parents’ representative agreed to revise Parents’ disclosure to remove the duplicates. The Services Enrollment Agreement was one of the duplicates. Although the contents of the document are the same, Parents’ version initially put forward is visually different (Ex. IHO-V), for example the ink on page one on Ex. DOE-4-1 is blue, whereas Parents’ copy is black (Ex. IHO-V-1). To my mind the DOE’s disclosed version is a scan of the original in the School’s possession, disclosed by the School/School Administration Entity, whereas Parents’ version appears to be their personal copy of that document.
Parent was asked in direct-examination whether any other information was sent back to Parents together with the signed contract, to which Parent responded “They sent the services that [Student’s] going to … be receiving. And the rates on those services” (T. P156). Significantly, Parents’ version of the contract does not contain the alleged missing page, which leads me to believe that the omission of that critical page - “without that piece of paper, you cannot infer the services and the cost” - cannot simply be written up to a clerical error. Outside of the Rates Sheet (Ex. DOE-4-3; Ex. IHO-V-3), no other information that was purportedly sent back which showed that information was disclosed by Parents. It is also noteworthy that the contract expressly references the rate sheet being attached as an appendix: “The list of available services and the applicable rates are attached to this agreement as Appendix A” (Ex. DOE-4-1; Ex. IHO-V-1). The alleged fourth missing page that provides the critical information according to Parents’ Witness 2 is not expressly mentioned anywhere in the document.
Parent testified during cross-examination after being asked to scroll through the three pages of the Services Enrollment Contract (Ex. DOE-4-1) that he did not see any missing pages (T. P160). I find, on the probabilities, that the alleged missing page that Parents’ Witness[2] attempted to reference during his testimony was not part of the Services Enrollment Agreement and was not part of the version of the contract given to Parents. Parents’ Witness
Despite it being confirmed that invoices were created based on the raw data, not one invoice was disclosed despite both entities being under subpoena to provide any and all invoices, bills, and/or demands for payment (Ex. IHO-II, & IHO-III). Parents’ Witness 2’s excuse for the failure to disclose these invoices was that the school year was over and therefore “what was disclosed was the annual amount that encompasses the entire year instead of doing it on a month-by-month basis”. District’s representative represented that she did not receive any invoice beyond what was disclosed (T. P136). I find that neither the School nor the School Administration Entity properly complied with its duty to provide documents in its possession responsive to the issued subpoenas.
Parent was asked during cross-examination whether there was an alternative document that he received that set forth the obligation of how many OT hours the School was meant to have provided to Student each week. In response Parent asked, “So if you're asking how many hours was [Student] supposed to receive or how many hours did [Student] receive?”. District’s representative responded, “I'm asking, is there a document that you [were] provided where [the School] told you how many hours [Student] was to receive each week?”. Parent then said, “They go off -- don't they go off the IEP?”. This was not a mistake or an error, because District’s representative replied “I don't know. Do they?”, to which Parent answered “I -- I can't -- I can't answer that question. I mean, whatever is provided in the IEP, they have to provide for my daughter, right?”. District’s representative informed Parent “Again, that's something that you would know better than me. So did you ever receive timesheets from [the School]”. Incredibly, Parent answered that “I was told - I was told – I was told how many hours [Student] received a week”. District’s representative pressed on and asked “Okay. And along with those hours, did you receive a bill for services each week?” to which Parent replied, “I did not receive a bill for services, because when they tell me, you know, how many hours and I see the rate, it's just making the calculation myself, and -- and I come up with the number” (T. P160-P162). When I sought to clarify how Parents were notified, Parent testified that he didn’t remember exactly how it was told over to him, but believes it was a notebook that was sent every day to tell Parents the progress of Student (T. P164). No entries from any such notebook were disclosed.
Given these concessions, I find that Parents were not billed monthly and even if, as alleged by Parent (only, which was not corroborated by any of the school witnesses), Parents were being told on a monthly basis the number of hours of services the School was servicing Student, Parents truly had no idea of what they were really in for financially. I do not find Parent’s response credible that he would just make the calculation for himself because they told him the hours and he saw the rates, because then he would have known the answer to District’s representative’s question regarding the number of hours being provided to Student each week. He would not have had to ask District’s representative, twice, whether the School just didn’t ‘go off of the IEP’.
There was no confusion with Parent’s clear answers to District’s representative’s questions. In fact, Parent had testified earlier in direct-examination when he was asked how many times Student had received OT, responded “I do not remember exactly, but I believe it was 3x45” (T. P149). This accords with what the DOE had recommended in its program (Ex. DOE-2-21).
Parents’ Witness 2 testified that the charges billed in Student’s case were “on the higher side” and when asked for a range based on his experience, replied that he had “come across numbers such as that 250, 279, 315, just off the top of my head” (T. P120). Significantly, Parents’ Witness 2 made clear that he does not consider the amount charged as tuition, but that it is a pay-for-service program not a tuition-based program (T. P121). Although I have addressed Parents’ claim using the Burlington-Carter framework, Parents’ claim is in fact not for tuition costs.
The IDEA allows that reimbursement/funding may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.”[34] This statutory provision “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools.”[35] Although a reduction in reimbursement/funding is discretionary, courts have upheld the denial of reimbursement/funding in cases where it was shown that parents failed to comply with this statutory provision36.
The hearing record reflects that Parents, through Parents’ representative, notified the CSE by correspondence dated August 19, 2021 37 of Parents’ intention to enroll Student at the School and seek public funding for the 2021-2022 SY, more specifically “of parent’s intention to request an impartial hearing to obtain tuition reimbursement and/or direct payment to the parents for [Student’s] tuition for the 2021 – 2022 school year” (my emphasis) (Ex. P-B).
36 Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007].
37 Parents’ representative’s office emailed me, at my request, proof of the notice having been sent just after business hours on August 19, 2021 (Ex. IHO-IV).
I find that in this letter Parents offered sufficient, albeit generic, information to put the DOE on notice about Parents’ concerns regarding the CSE’s failure to make an appropriate program recommendation and informed of Parents’ intentions, giving the DOE an opportunity to cure any deficiencies, which is the intent underlying the ten-day notice requirement.[38] Significantly, however, the only relief that the DOE was informed of in this letter was of Parents’ intention to obtain reimbursement and/or direct payment for tuition (Ex. P-B-1). Whilst that may have been Parents’ intention at the time the ten-day notice was sent on August 19, 2021, the Services Enrollment Agreement having only been signed on October 8, 2021 (Ex. DOE-4; Ex. IHO-V), when the DPC was filed in 2023 it was clear that Parents were not claiming tuition but rather payment for services.
The claim in the DPC however is for “reimbursement for the tuition costs associated with the student’s placement at [School] for the 2021-2022 school year and/or direct payment to [School] for these tuition costs” (my emphases). Whilst the DPC does however include a claim that the “Department of Education will provide the student with the related services recommended on the last IEP and/or reimburse the parent and/or the school for the provision of [Student’s] mandated related services” (Ex. DOE-1-4), the claim is limited to the mandated related services. Accordingly, I find that the DOE was not properly given due notice of the true claim for which Parents are now seeking an award.
This failure to give due notice should also be viewed, not only considering my finding above regarding the alleged missing fourth page, but also my finding that Parents never really had any real idea of the extent to which they would be billed in this case, coupled with the fact that it is improbable that monthly invoices were in fact generated and billed to Parents monthly.
District’s representative raised the point that the hourly rates charged by the School to Parents to pay for the salaries, as well as up to sixty administrative staff including those who do not work for the School (T. P174), were factors that should bar recovery. Parents’ Witness 2 confirmed that hourly rates covered the salaries of janitorial and custodial staff, as well as insurance costs and the costs of maintaining and renting the facility (T. P123, & P124). District’s representative also raised the point that the rates have no bearing on the individuals who are providing the services or the amount they make each year (T. P178). Given that someone was hired specifically because Student was being enrolled, this ‘disconnection’ bears some relevance. Whilst I do not find the hourly rates (based on double the half-hourly rate) listed on the Rate Sheet (Ex. DOE-4-3) for the aid, the OT, speech, and ABA services unreasonable, I do find that the rate for ABA supervision at a rate of $350.00 an hour was not marketrelated as it relates to the 2021-2022 SY. An appropriate adjustment has been made in the calculation below.
Finally, Parents did not produce any evidence with respect to whether they had the financial resources to "front" the costs of the services39, and therefore failed to demonstrate an inability to pay. There was no evidence in the hearing record regarding either Parents' financial resources, such as a copy of a recent tax return or evidence regarding Parents' assets, liabilities, income, or expenses40, and no testimony in that regard whatsoever. Recently the District Court addressed the issue of direct payment versus reimbursement. The Honorable Judge wrote that “where it is undisputed that the DOE is responsible for payment, and the DOE does not contest the reasonableness of the cost of tuition, it would be nonsensical to draw a distinction on equitable grounds between requiring the DOE to pay the school directly and forcing the parents to make an initial payment in the same amount that the DOE is then required to reimburse”. [41]
The case before me is distinguishable from that case. The DOE is contesting the reasonableness of the cost of the services, plus it is not even tuition that is being claimed. I also note in regard to Parents’ “established” contractual obligation constituting an 'injury in fact', 'redressable' by the direct payment Parents seek: Parents did not disclose, according to Parents’ Witness 2, the complete contract; the contract that was disclosed was between Parents and the School Administration Entity; the party that de facto rendered the services to Student was the School, not the School Administration Entity; and despite being under subpoenaed to provide “[a]ny and all contracts, agreements, invoices, bills, and/or other written understanding in whatever written form between [the School] and [the School Administration Entity] related to any services provided to the Student pertaining to the 2021-2022 school year”, no such documents were produced (Ex. IHO-II-2; & Ex. IHO-III-3). I had asked Parent that if Parents did not prevail, what his understanding was in relation to the amount owed. Parent answered that he would have to pay whatever their bill was. Parent testified that “whatever the outcome is, I will either pay that or I’ll disagree with whatever the hearing is” (T. P165, & P166). For all these reasons, I am unable to find that retrospective direct payment would be an appropriate remedy in this case.
Parents have therefore met the third criterion of the three-part test set out in the Burlington/Carter case for reimbursement only of the cost of some services provided to Student during the 2021-2022 SY.
Appropriate Relief:
39 Application of a Student with a Disability, Appeal No. 12-036; Application of a Student with a Disability, Appeal No. 12-004; Application of the Dep't of Educ., Appeal No. 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041.
40 Application of a Student with a Disability, Appeal No. 23-052.
In the case of L.K. v New York City Dep’t of Educ. [42], the Honorable U.S. District Judge addressed whether the SRO had correctly determined that the IDEA permits a reduction in reimbursement, as a matter of equity, when parents procure services over and above those that would satisfy the state’s obligation to provide a FAPE. The Court concluded that the answer to that question was yes. The Court noted that Carter instructed courts to deny total reimbursement in the face of unreasonable cost and reasoned that Courts therefore must have leeway to award less-than full reimbursement to Parents who act in good faith. The Honorable Judge then addressed the question whether the cost of a service can be "unreasonable" under Carter if the service was not one the state was required to offer to provide the student a FAPE. As part of the analysis, the Honorable Judge considered cases from the second and the third circuit and wrote:
“Judge Lynch adopted the Second Circuit's interpretation of reasonableness in Board of Education of the City School District of the City of New York v. Gustafson. See No. 00-CV-7870 (GEL), 2002 WL 313798, at *7 (S.D.N.Y. Feb. 27, 2002). He explained that although Carter "did not suggest what factors should be considered to evaluate reasonableness," the "Second Circuit ... interpreted 'reasonable"' in Still to require a relationship between the amount of reimbursement and the quantum of services that the state would have been required to provide. Judge Lynch offered an important caveat, however, to the principle that a court should reduce reimbursement when parents pay for more services than the state would have been obligated to offer. In Gustafson, the IHO had decided that equitable considerations required reimbursing the mother of a student enrolled in a private school for only 20% of the cost of tuition. Id. at *2.
The IHO reasoned that the student did not require a full-time special education program, and that the 20% figure represented roughly the cost of the special education services provided to the student at the private school. Id. The SRO, however, reversed the IHO's decision, and the district court affirmed. Id. at* 1. The court, the SRO, and IHO all agreed that the student "received more services than would have been provided under a proper IEP within the public schools." Id. at *2-3, *7. But, the court explained, "these added benefits are inextricably linked to the substitution of most private programs for public ones." Id. at * 7. Given that "the Board [had] failed to propose a proper IEP, [and] the parent [had] found an appropriate placement," the court held that "full tuition reimbursement provide[d] the least arbitrary and most equitable result" because the record made it impossible to "identify[] a segregable service for which the cost can reasonably be estimated." Id. (emphasis added). Put differently, when a school district fails to provide a FAPE, parents that place their children in private programs will often end up paying for services that go beyond what the school district would have been required to provide if it had fulfilled its obligations under the IDEA in the first place. Parents should not be denied full reimbursement in each of these cases, as that would unfairly punish parents for finding an appropriate private placement. Rather, parents' reimbursement should only be reduced if there are identifiable services, whose costs can reasonably be estimated, that are segregable from the rest of the private program and that exceed the services that constitute a FAPE.
The Third Circuit and the Ninth Circuit have each interpreted the IDEA along these lines. In CB. ex rel. Baquerizo v. Garden Grove Unified School District, the Ninth Circuit held that the guardian of a student who had been denied a F APE was entitled to full reimbursement for the cost of private schooling, even though the private school did not meet all of the student's needs.[43] 635 F.3d 1155, 1157-58 (9th Cir.
2011). In reaching that holding, the court rejected the school district's argument that the district court, in considering the equities associated with reimbursement, should have "reduce[ed] [the] Guardian's reimbursement commensurate with the missing elements of [the student's] special educational needs." Id. at 1160. The court reasoned that it would not make sense to reduce a parent's reimbursement simply because the parent could afford a private placement that covered all of a student's needed services. Id.
The court added, however, that "[e]quity surely would permit a reduction from full reimbursement if [a private placement] provides too much (services beyond required educational needs), or if it provides some things that do not meet educational needs at all (such as purely recreational options), or if it is overpriced."
Id. (emphasis added). Similarly, the Third Circuit has indicated that courts should determine the appropriate amount of reimbursement "with reference to what is required by the IDEA to provide an appropriate education." Warren G. ex rel. Tom G. v. Cumberland Cty. Sch. Dist., 190 F.3d 80, 86 (3d Cir.
1999).” (my emphases).
The Honorable Judge held that it may reduce the reimbursement awarded to the Parents on the basis of any segregable services that the parents provided over and above what the Department would have been required to offer L.K. to provide a FAPE. The case before me conveniently lends itself to the above requirement that the costs can reasonably be estimated, segregable from the rest of the private program, and that exceed the services that constitute a FAPE, precisely because of the nature of the new financial model adopted by the School.
In awarding appropriate relief given my above findings, I have considered the services that Student did require for the 2021-2022 SY necessary for Student to make educational progress required by the IDEA.
In making my determination, I am mindful that school districts are not required to “maximize” the potential of students with disabilities,[44] but must provide “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’” (my emphasis).45
I find that the following services would have been required, based on the above authority, bearing in mind that according to Parent, which evidence I accept, that he believed that the School was required to provide the related services based on what was on Student’s IEP (and which forms part of proposed solution 5 of Parent’s claims in the DPC):
1. ABA services – 31 hours per week (based on the number of hours in a school day – Ex. DOE-7-1, which also accords with the DOE’s recommended periods for Student – Ex. DOE-2-21; less the hours when Student was receiving OT & Speech).
2. ABA supervision – 3.1 hours per week (calculated at 10% of item #1).
3. Occupational therapy services – 3 x 45 minutes per week (Ex. DOE-2-21).
4. Speech and language services – 3 x 45 minutes per week (Ex. DOE-2-22).
5. Aid (full time) – 31 hours per week (based on the number of hours in a school day – Ex. DOE-7-1, which also accords with the DOE’s recommended periods for Student – Ex. DOE-2-21).
Student was serviced during the 2021-2022 SY on 156 days, based on Student’s attendance according to Ex. DOE-9-1 (i.e., during the period October 11, 2021, through June 23, 2022). Accordingly, I find that the following hours are compensable (not factoring in the Prong III deduction addressed below) and any of hours provided above these are “segregable from the rest of the private program and … exceed the services that constitute a FAPE”:
1. ABA services – 824 hours (31 hours per week x 31.1 46 weeks, less 140 hours corresponding to OT &
speech).
2. ABA supervision – 82 hours (calculated at 10% of item #1).
3. Occupational therapy services – 70 hours (2.25 {or 3 x 45 minutes per week} x 31.1 weeks).
4. Speech and language services – 70 hours (2.25 {or 3 x[45] minutes per week} x 31.1 weeks).
5. Aid (full time) – 964 hours (31 hours per week x 31.1 weeks).
46 Rounding was used where required. Student attended 22 x ‘5-day weeks’, 9 x ‘4-day’ weeks, 3 x ‘3-day weeks’ and 1 x “1-day” week. Accordingly, 31.1 weeks corresponding to 156 days in total has been used in the calculation.
This therefore equates to the following monetary award, after including a Prong III deduction of 40% based on the abovementioned equitable considerations47:
1. ABA services – (824 hours x $250.00) x 0.6 = $123,600.00.
2. ABA supervision – (82 hours x $300.00) x 0.6 = $14,760.00.
3. Occupational therapy services – (70 hours x $250.00) x 0.6 = $10,500.00.
4. Speech-Language therapy services – (70 hours x $250.00) x 0.6 = $10,500.00.
5. Aid (full time) – (964 hours x $90.00) x 0.6 = $52,056.00. Total: $211,416.00
Other than the relief set out in my Order below, I do not find any other basis or evidence in the record supporting any additional relief.
ORDER:
Based upon the above Findings of Fact and Decision, it is hereby:
1. ORDERED that, the DOE shall reimburse Parents the cost of Services provided by the School to Student during the 2021-2022 school year by making payment to Parents in the sum of $211,416.00 (Two Hundred and Eleven Thousand, Four Hundred Sixteen Dollars), minus any payments already made by the DOE to the School for the 2021-2022 school year under or in terms of Pendency (if applicable), upon receipt by the DOE of Parents’ proof of payment(s) for those Services.
2. FURTHER ORDERED that, Parents’ request for an order for reimbursement/funding for Tuition costs associated with Student’s placement at the School is hereby denied.
SO ORDERED.
DATED: August 25, 2023
__H.A.C._ (Signed Electronically) ___
Impartial Hearing Officer
Harry A. Christodoulou
47 This deduction, which is based on the Prong III factors mentioned above, does not factor in the “multiple billing issue”, which Parents’ Witness 2 conceded had taken place and was stopped, as that has already been accounted for by removing all those services that are “segregable from the rest of the private program and … exceed the services that constitute a FAPE”.
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]
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENTS’ EXHIBITS
P-A. Program Description Undated 4 pages
P-B. Ten Day Notice P-C 48 - - - 08/19/2021 2 pages
P-D. Work Protocol 2021-2022 1 page
P-E. Progress Snapshot 2021-2022 41 pages
P-F. Speech and Language Evaluation Report 02/__/2022 11 pages
P-G. OT Evaluation 11/__/2021 6 pages
P-H. OT Progress Report 06/__/2022 4 pages
P-I. Curriculum Goals P-J Withdrawn - - 2021-2022 74 pages
P-K. Behavior Intervention Plan 01/14/2022 1 page
P-L. Break Attention 2021-2022 3 pages
DOE’S EXHIBITS
DOE-1 Due Process Complaint 03/19/2023 6
DOE-2 Individualized Education Program (IEP) 04/15/2021 30
DOE-3 IEP Attendance Form 04/15/2021 1
DOE-4 Services Enrollment Agreement 10/08/2021 3
DOE-549 Service Affidavit – School Year 2021-2022 05/05/2023 4
DOE-6 [REDACTED] 08/01/2022 1
Attendance DOE-7 Student’s Schedule 2021-2022 2021-2022 1 DOE-8 Student’s Providers 2021-2022 Undated 3 DOE-9 Time Sheets Undated [48]
DOE-10 [REDACTED] 2021-2022 5
Individualized Education Plan DOE-11 Occupational Therapy IEP 2021-2022 06/__/2022 3 DOE-12 Educational Progress Report 06/10/2022 3 DOE-13 Prior Written Notice (Notice of 06/09/2021 11 Recommendation)
IHO’S EXHIBITS
I. IHO’s PHC Summary 05/01/2023 49 2 pages
II. Page 4 of this exhibit has no affidavit content (T. P35). Signed District’s subpoena - [REDACTED] 05/22/2023 4 pages
III. Signed District’s subpoena - [REDACTED] 05/22/2023 4 pages
IV. Parents’ representative’s email to CSE-[REDACTED] attaching the ten-day notice 08/19/2021 3 pages
V. Services Enrollment Agreement – Parents’ version 10/08/2021 3 pages
Footnotes
[4] 34 C.F.R. § 300 et seq.
[6] 8 NYCRR § Part 200.
[7] NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504- delegation-Signed.pdf.
[14] Rowley, 458 U.S. at 203.
[17] See Antignano v. Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11 [E.D.N.Y. Jan. 4, 2010].
[18] School Committee of the Town of Burlington v. Department of Ed., Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Bd. of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].
[19] NYS Educ. Law § 4404(1)(c).
[20] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[22] See J.L. ex rel. J.R. v. New York City Dept. of Educ., 2016 WL 6902137, at *5-6 (E.D.N.Y. 2016).
[23] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007].
[24] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006].
[25] Gagliardo, 489 F.3d at 115.
[26] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[30] N.B., 711 F. App'x at 32; "What the statute guarantees is an appropriate education, not one that provides everything that might be thought desirable by loving parents." Walczak, 142 F.3d at 132 (internal quotation marks omitted). See also Fragnito ex rel. L.F. v Board of Ed. Of the Suffern Cent. Sch. Distr. 2020 CS 510452 [S.D.N.Y. July. 21, 2020] Accordingly, Parents have met the second criterion of the three-part test set out in the Burlington/Carter case.
[31] Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 [2d Cir., 2014]; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"].
[32] 20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 192 Fed. App'x 62, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at 69 n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001].
[2] was not employed at the school when the contract was signed on October 8, 2021, and therefore has no personal knowledge regarding the contract and the number of pages it comprised. When asked who is responsible for creating the timesheets, Parents’ Witness 2 testified that each provider records their time, but due to the nature of the school, the schedule is not always being kept. He testified that if a child is experiencing behavioral or a health situation that is not allowing the program to run as scheduled, there are changes that are being done on the spot. Parents’ Witness 2 further testified that there were times when there might have been three people billing for the same time, but that is something that is no longer taking place, stressing that he only joined in May of 2022, that the practice was no longer taking place, because he implemented many changes and that is one of the changes he implemented. Parents’ Witness 2, however, conceded that this practice was taking place during 2021-2022 SY (T. P127-P128). Parents’ Witness 2 testified that he did not know whether the monthly invoices were shared with Parents or if the annual service affidavit was shared with them but “definitely the records have been shared with the parents” (T. P128). District’s representative asked Parent’ Witness 2 whether anything prepared, any sort of billing statement prepared, would have been disclosed pursuant to the subpoena, but Parents’ Witness 2 replied that he did not know (T. P131). I sought clarification from Parents’ Witness 2 regarding what was meant by billing (T. P133- P136). In seeking to explain the process in answer to my questions, Parents’ Witness 2 testified that in “this specific case, I created a service affidavit for the entire school year on May 5th of 2023. And to answer the DOE's question about the frequency of the billing, because I started in this position in May of 2022, I don't know firsthand what took place before me. So I stated for the record that the service affidavit was certainly shared with the parent. And I am not certain whether it was shared on a monthly basis, as the invoices were created, or whether it was shared in my annual service affidavit for the entire school year” (my emphasis). I asked Parents’ Witness 2 “And so when you say the invoices, are you referring to - I don't see in any of the disclosure an invoice. But are you referring to DOE 9 as these statements equaling an invoice?” to which he responded “The DOE's Exhibit 9 is the raw data, based on which the invoice is being created. The time is captured on a per-minute basis. …” (my emphasis). Parents’ Witness 2 gave an example and referenced Ex. DOE-5 and again confirmed that the information was captured or extracted from an actual monthly invoice (T. P135, & P136).
[34] 20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].
[35] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004].
[38] Greenland Sch. Dist., 358 F.3d at 160.
[41] Ferreira v. New York City Dep’t of Educ., 2023 WL 2499261 (S.D.N.Y. March 14, 2023).
[42] 674 Fed. App’x 100, 101 [2d Cir. Jan. 19, 2017.
[43] Such as in this case, where the School did not provide physical therapy, which Parents then obtained separately.
[44] Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Central School Dist., 346 F.3d 377, 379 [2d Cir. 1998]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998].
[45] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[48] Ex. P-C was a duplicate of Ex. DOE-2 and therefore not admitted for that reason (T. P140).