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NYSED Case # 597350 - NYC Case # 247393
FINDINGS OF FACT AND DECISION
Case Number: 247393
Student’s Name: REDACTED (Student)
School District: N.Y.C. Dept. of Ed., Home District:
REDACTED
Service District: REDACTED
Impartial Hearing Officer: Kevin T. McGrath, Esq.
Date of Filing: April 12, 2023
Hearing Requested by: REDACTED (Parents)
Dates of Hearing: June 09, 2023
Record Close Date: June 23, 2023
Date of Decision: June 23, 2023 Findings of Fact and Decision i
Names and Titles of Persons Who Appeared on June 09, 2023:
For the Department of Education (DOE): REDACTED, Esq., DOE Agency Attorney For the Student: REDACTED, Esq., Law Office of REDACTED REDACTED, parent – Witness REDACTED, Educational Director of REDACTED – Witness REDACTED, Classroom BCBA at REDACTED - Witness
INTRODUCTION
Parents, through counsel, filed a Due Process Complaint (DPC) on or about April 12, 2023. In the DPC, Parent alleges that the Department of Education (DOE) failed to offer Student a free appropriate public education (FAPE) for the 2022-2023 school year. 1
Parents seek an award of (a) tuition for Student’s attendance at Private School, a private program not approved by the Commissioner of Education for the education of students with disabilities, for the 2022-2023 school year: and (b) 10 hours per week of Applied Behavior Analysis (ABA) home-based services. The DPC asserts the DOE failed to provide the Student with a FAPE for the 2022-2023 school year when its Committee on Special Education (CSE): (a) recommended a classroom setting of eight (8) students, one (1) teacher and two (2) assistants (8:1:2), which was not appropriate to allow the student to make progress; (b) included goals and management needs in the individualized education plan (IEP) that were “unclear”; (c) impeded the Parents’ ability to participate in the IEP creation by ignoring the Parents’ concerns; and (d) recommended a placement location which was unable to accept Student or implement the IEP.
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As detailed below, I find: (a) the DOE failed to meet its burden and failed to offer Student a FAPE for the 2022-203 school year; (b) Private School offers Student specially designed instruction sufficient to meet Student’s needs; and (c) the equities support the Parent’s requested relief.
PROCEDURAL HISTORY
I was appointed as the impartial hearing officer on April 13, 2023. The DOE served a Due Process Response on April 26, 2023. A Prehearing Conference was held on May 15, 2023, and a
Prehearing Conference Summary and Order was issued the same day.[4] DOE did not hold a resolution meeting with respect to this action.
A merits hearing was held before me on June 09, 2023. DOE Representative produced 11 exhibits at the hearing, all admitted into the record.[5] Also, at the hearing, Parents’ Representative produced 20 exhibits, all admitted into the record. The DOE Representative produced IEP Team
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Member to testify on behalf of the DOE. The Parents’ Representative produced Parent #1, Private School Representative, and Private School Teacher to testify on behalf of the Student. The parties then made oral closing statements.
On June 15, 2023, after closing statements were finished, Parent’s Representative submitted by email a proposed exhibit U. 7 The DOE objected to the untimely submission of the document. The document was not admitted into evidence and was marked for identification purposes only.
1
Ex. A. 2
Id.
FINDINGS OF FACT
After thoroughly reviewing the record, I make the following findings of fact and determinations.
Student was REDACTED years old at the start of the 2022-2023 school year and attended Private School. The Student’s eligibility for special education supports and services is not disputed based on the CSE classification of “preschool student with a disability.” 8 Student is diagnosed with Autism Spectrum Disorder (ASD), social communication deficit – Level 2, and restricted interest & repetitive behaviors – Level 2.
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Parent #1 10 attended the 2021 IEP meeting and participated in developing the IEP for the 2022-2023 school year. 11 The 2021 IEP recommended that (a) Student be placed in a special education self-contained 8:1:2 class and (b) receive related services of speech therapy (3 sessions per week for 30 minutes each in an individual setting [3x30 1:1]), occupational therapy (3 sessions per week for 30 minutes each in an individual setting [3x30 1:1]) and parent counsel and training (once per quarter at 60 minutes indirect sessions). Parents privately obtained a report from
Neuropsychologist (2022 Neuropsychologist Report), which they provided to the CSE for consideration. IEP Team Member did not recall seeing the report.
13 [14]
Parent#1 did not believe the 2021 IEP recommendations were appropriate since (1) it failed to recommend ABA as part of the program, and (2) the placement was for an 8:1:2 classroom instead of 1:1 instruction. 15 Parents also requested 10 hours of home-based ABA per week be listed in the IEP. 16 The DOE states that it does not direct any education/behavior methodology in the IEP to allow teachers flexibility in teaching styles but that some teachers use ABA. The IEP Team Member stated[17] that Student has many skills and strengths as a student. The IEP team believes the 8:1:2 recommendation is appropriate to allow Student to make progress. The 8:1:2 setting will allow Student to improve transitioning skills when moving between tasks and allow for peer modeling of behaviors. A smaller teacher-to-student ratio would be too restrictive because constant prompting by a teacher would impair independence and social growth, and there would be insufficient peer modeling. 18
8 Ex. 1 (Both Parent and DOE submit both IEP, as exhibits. For purposes of this decision, the DOE submissions for the IEP will be referenced when citing the 2021 IEP and 2023 IEP). 9
Ex. G-11. 10 Only Parent #1 provided testimony evidence. There was no suggestion in the record of a disagreement between the two parents regarding the facts, observations, conclusions, and opinions provided by Parent #1. Therefore, the decision uses the plural “parents” and assumes Parent #2 agrees with the facts, observations, conclusions, and opinions expressed by Parent #1 11
Ex. 1.
13 Ex G indicates that the evaluations of Student were conducted after the 2021 IEP meeting. Therefore the 2021 IEP meeting team was not able to consider Neuropsychologist’s opinions and recommendations. While IEP Team Member denies receipt of the document, Parent’s have provided consistent testimony regarding their concern and involvement with Student’s education. As such, the testimony that the the document was served on the DOE is accepted.
Parents sent a “Ten-Day Notice” to the DOE on September 19, 2022, stating their objections to the IEP and giving the DOE notice of their intent to place Student at Private School. 19 Accordingly, Student was unilaterally placed at Private School for the 2022-2023 school year.
After the school year had commenced, on January 27, 2023, Parents received a school location letter identifying Student’s placement at Public School. However, after communicating with Public School, Parent #1 was advised that no open spaces were available to accommodate Student in the setting recommended in the 2021 IEP. 20 Accordingly, Student continued the unilateral placement at Private School.
Private School
The Private School is an early learning center offering self-contained preschool education and related services for children with special education needs, including ASD. 21 Private School Representative is the founder and Administrative Director of Private School. 22 Private School Representative has a Master’s degree in Education, Special Education, and School Administration, New York State license in education, and is a Board Certified Behavior Analyst (BCBA). 23 Student’s teacher for the 2022-2023 school year holds a Master’s degree in education. 24 The service providers for Student hold licenses in their respective fields.
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Private School Supervisor is a licensed BCBA and oversees the various ABA providers at Private School.[26] Private School Supervisor has a New York State license in education and special education. 27 They have worked as an ABA and BCBA for 15 years. 28
Private School Representative and Private School Supervisor are familiar with Student’s special education and related services requirements.[29] Student has an individualized education plan created by Private School to address their needs. For the 2022-2023 school year, Student is placed[30] in a class with three (3) students, one (1) teacher, four (4) instructors, and one (1) assistant. 31 Individual strategies are implemented to assist Student’s education, including reducing visual distractions, using a sensor corner, breaking down skills into smaller steps, and using songs to help reinforce concepts and social behaviors. 32 Both witnesses believe that the ABA methodology is needed to deconstruct complex skills and tasks into smaller steps to allow Student to learn. ABA
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methodologies are used throughout the day at Private School to individualize all teaching areas. 34 Further, Private School Supervisor opined that ABA services were needed at home to help reinforce
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Ex. B. 20 Tr. at 100-101. These allegations, opinions, and statements claimed by Parent #1 were contained in the DPC and repeated during Parent’s testimony. The DOE failed to present any witnesses to challenge the veracity of the allegations, either in the case-in-chief or rebuttal. Accordingly, while the allegations are hearsay, they will be strongly weighted in favor of being accurate. 21
Ex J; Ex. K. 22
Tr. at 48. 23
Id. at 47-48. 24
Id. 49. 25
Id. the skills learned at school and to assist in breaking down social/personal home activities into smaller steps. 35 The combination of school and home ABA services are intended to assist student’s transition between environments.
Both the Parent and the Private School observed that the Student progressed in all areas (i.e., academic, behavioral, communication, and socio-emotional) during the 2022-2023 school year. 36 In the school setting, Student’s improvements include decreased use of gesture prompting to focus Student on tasks; an increase in Student’s attention span from 1 minute to 5-6 minutes; a significant increase in Student responding to their name being called; an increase in verbal response to gesture and greetings; and verbal request for desired items. 37 Parent #1 also observed improvements resulting from Private School’s education and use of ABA, including cessation of head banging due to frustration, Student making increased eye contact with people, and ability to verbally request items (a previous cause of frustration). Further, the record demonstrates that the DOE Representative’s cross-examination did not make a significant challenge or dispute to the opined academic, behavioral, communication, or social-emotional improvement stated during the direct testimony of both witnesses.
Parents executed an enrollment contract with Private School for the 2022-2023 school year. 38 Tuition at Private School is $134,760.00. The enrollment contract contains a provision allowing for
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the release from the contract if Parent accepts an appropriate public school placement. 40 Parents have not made any payment towards this tuition for the 2022-2023 school year, 41 which they claim is due to their financial inability to pay the tuition. Parents acknowledge they remain responsible for the
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total amount of the tuition regardless of the outcome of a due process hearing. 43
Reconvening of the IEP team in 2023
The IEP team reconvened on January 26, 2023 to discuss Student’s special education needs. Following the 2023 IEP, the CSPE recommended placement at Public School. However, when Parent spoke with Public School, there was no vacancy until September 2023 in an 8:1:1 classroom. Additionally, Parents were informed that Public School utilizes a non-ABA behavior methodology and could not provide instruction using ABA. Accordingly, Parents continued to unilaterally place Student at Private School for the remainder of the 2022-2023 school year.
Credibility
Upon considering the evidence, including all admitted documents and the testimonies of the witnesses, I determine the following. In admitting 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.
35
Id. at 83. 36
Tr. at 51-52, 58-59, 76-82, and 104; Ex. N, O, P and Q. 37
Id. 38
Ex. H; Ex. I. 39
Ex. H; Ex. I. 40
Ex. H at ¶3. 41
Ex. I. 42
Tr. at 103; Ex. R.
Tr. at 102-103.
CONCLUSIONS OF LAW AND ANALYSIS
I find that (a) direct funding of tuition at Public School is appropriate based on the DOE denial of FAPE for Student; Private School was an appropriate placement for Student, and the equities in the action favor Parent’s actions; and (b) that the CPSE unwillingness to consider home-based ABA services was a denial of FAPE.
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. When the local education
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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. 45 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.” 46 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.”
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A. Funding of Tuition at Private School
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. 48 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. 49
Prong I
As detailed herein, the DOE did not establish under Prong I that FAPE was provided to the Student for the 2022-2023 school year.
In support of its case in chief, the DOE offered 11 exhibits and testimony from IEP Team Member at the hearing. At the hearing, the DOE’s Representative argued that their evidence demonstrated that Student was provided a FAPE for the 2021-2022 school year and that the DOE offered placement in a program that would allow the Student to make progress in the least restrictive environment.
44
See 34 C.F.R. § 300.13. 45
Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 US 176, 206-207 (1982). 46
Endrew F. v. Douglas County Sch. Dist. RE-1, 580 US 386 (2017). 47
20 U.S.C. § 1415(b)(6)(A). 48
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).
NY Educ. Law § 4404(1)(c). The DOE is not required to show that it attempted to “maximize” the potential of students with disabilities under Prong 1. However, the IEP, among other requirements, must establish annual
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goals designed to meet the student's needs resulting from the student's disability and provide appropriate special education and services. 51 “Appropriateness” means that the IEP accurately reflects the results of evaluations to identify the student's needs, 52 offers sufficient special education services, 53
54 and is properly implemented. To demonstrate a FAPE, the DOE must offer “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student an opportunity greater than mere ‘trivial advancement.” 55 In addition, the IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” 56
Parents raise four arguments to establish a denial of FAPE, including that (a) there was an untimely school placement location recommendation and (b) when the placement recommendation was finally made, the location was not capable of implementing the IEPs. Under the IDEA, the local education agency is required to provide the "frequency, location, and duration" of the "services" to be provided. Despite the reference to "location" in Section 300.320(a)(7), the Second Circuit has held
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that it is not a per se procedural violation for the IEP to omit the name of the specific school, with such information to follow. 58 Still, the school designation cannot come so late that it impedes the parents' ability to participate meaningfully in the school selection process. For instance, a procedural
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violation occurred where the equivalent of a school location letter was sent "on June 15 for a school year beginning on July 6,” 60 "on June 18 for a school year beginning on July 5," 61 and on “June 18 for a school year beginning on July 2.” 62 "[T]he crux of the right to meaningfully participate in the school selection process is the right to 'evaluate the school assignment, i.e., the right to acquire relevant and timely information as to the proposed school.” 63
The Parents are correct that the DOE's actions impeded their right to acquire relevant and timely information about the proposed school. The DOE did not send a school placement letter for the 2022-20223 school year until January 2023. Since Student attends school for 12 months of the year, the placement recommendation was made over six months after the start of the 2022-2023 school year. The DOE did not present any evidence or testimony to dispute this allegation. The DOE did not establish that a timely placement recommendation was made by the June 1, 2022, start of the Student’s school year.
50 Rowley, 458 US at 189, 199; Grim v Rhinebeck Cent. Sch. Dist., 346 F3d at 377, 379; Walczak v. Florida Union Free Sch. Dist., 142 F3d 119, 132 (2d Cir. 1998) (an “appropriate” education is “not one that provides everything that might be thought desirable by loving parents”). 51
See generally, 34 CFR § 300.320(a) and 8 NYCRR § 200.4(d)(2). 52 See 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. Dept. of Educ., 2008 WL 2736027, at 6 (SDNY July 3, 2008), establishes annual goals related to those needs. 53 See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dept. of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dept. of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9. 54
See 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087. 55
Cerra v. Pawling Cent. Sch. Dist., 427 F3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F3d at 130. 56
Mrs. B. v. Milford Bd. of Educ., 103 F3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 US at 192. 57
34 C.F.R. § 300.320(a)(7). 58 V.A. v City of NY, 2022 US Dist LEXIS 84556, at 14-15 (EDNY 2022); T.Y. ex rel. T.Y. v. NYC Dept. of Educ., 584 F.3d 412, 419-20 (2d Cir. 2009); C.F. v. NYC Dept of Ed., 746 F.3d 68, 79 (2d Cir 2013). 59
S.Y. v. N.Y.C. Dept. of Educ., 210 F. Supp. 3d 556, 574-75 (SDNY 2016). 60
Id., citing FB v. N.Y. City Dept. of Educ., 132 F. Supp. 3d 522, 541-43 (SDNY 2015). 61
Id. 62
Id. 63 FB v. NYC Dept. of Educ., 132 F. Supp. 3d at 541-42, quoting V.S. ex rel. D.S. v. N.Y. C. Dept. of Educ., 25 F. Supp. 3d 295, 299 (EDNY 2014); S.Y. v NYC Dept. of Educ., 210 F Supp 3d at 573-575.
Furthermore, when a placement location was finally made, the school could not accept Student due to a lack of available space. The U.S. Court of Appeals, Second Circuit, has held that a parent can challenge the placement prior to the students' attending the school if the placement school is "facially deficient" and "cannot satisfy the IEP's requirements." The lack of any available space
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to accommodate Student until September 2023 renders the DOE incapable of implementing either the 2021 IEP or the 2023 IEP.
I hold that due to the DOE’s untimely recommendation six (6) months after the start of the school year and the failure to ultimately provide a placement recommendation capable of implementing the IEPs, DOE failed to provide Student with a FAPE for the 2022-2023 school year. Accordingly, it is unnecessary to decide if a FAPE was denied based on the other arguments raised in the DPC, including if the 8:1:2 class setting, with other related services, provided a FAPE for the 2022-2023 school year.
Prong II
As detailed herein, the Parent sufficiently established that Private School was a proper placement for the Student.
A private school placement must be “proper under the Act.” 65 This means the Private School must offer an educational program that meets Student’s special education needs. 66 A parent seeking tuition reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” 67 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.” A private placement is appropriate if it provides instruction
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designed to meet a student’s unique needs. 69 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. 70
Taken as a whole, the testimony and documentary evidence show the Private School meets the Frank G. standard and “provides educational instruction specially designed to meet the unique needs” of the Student that will enable them to make progress. The evidence demonstrates the Private School is an appropriate placement because they: (1) specialize in serving students with ASD and special education needs and have hired teachers specially trained to do so; (2) provide the Student
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with a student-to-teacher ratio of 3:1:4 for instruction, which, in turn, appropriately supports the Student’s academic and behaviors needs; 72 (3) individualizes instruction for the Student in education instruction; 73 and (4) the Student is making objectively established progress. 74
64 M.O. v. N.Y.C. Dept. of Educ., 793 F.3d 236, 244 (2d Cir 2015); see also E.B. v NY City Dept. of Educ., 2016 US Dist LEXIS 90311, at *17 (SDNY 2016). 65
Carter, 510 US at 12, 15; Burlington, 471 US at 370. 66
See Gagliardo v. Arlington Cent. Sch. Dist., 489 F3d 105, 112, 115 (2d Cir. 2007); Walczak, 142 F3d at 129 (2d Cir. 1998). 67 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). 68
Frank G., 459 F3d at 364; see Gagliardo, 489 F3d at 115. 69
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). 70
Gagliardo, 489 F3d at 112, citing Frank G., 459 F3d at 364-65. 71
Tr. at 48-49; Ex. J. 72
Id. at 58. 73
Id. at 70 and 90; Ex. L.
Tr. at 51-52, 58-59, 76-82, and 104; Ex. N, O, P and Q. The Private School provides services in compliance with the needs of the student. Specifically, Private School Representative and Parent have demonstrated that the Student is making educational progress. Finally, the DOE Representative’s cross-examination did not establish any
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evidence to dispute the claims Student was making progress at the Private School.
As a result of the above, I find that Parent has met their burden in proving that 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 the Parent so that the unilateral placement of the Student at the Private School was appropriate.
The DOE Representative argued that the equities did not favor the Parent because the Parent did not meaningfully participate in the IEP process and would not accept a placement other than at the Private School. On this evidence, the DOE Representative argued that Student did not require
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tuition reimbursement to the Private School.
Under the third Burlington/Carter prong, courts consider “equitable factors” relevant to an order of tuition. 77 “[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.” 78 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.
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In this matter, Parent attended the IEP meetings and engaged in a dialogue about Student’s education plan and their concerns about the IEP (specifically regarding the 8:1:2 not providing sufficient support). The testimony establishes that the Parent attempted to follow up with the school placement location. Parent provided a timely “Ten-Day Notice” detailing their concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year and gave notice of their intention to place the Student in Private School unilaterally. 80
Parent seeks the direct funding of the Private School tuition costs. This is an available remedy under the IDEA. 81 Parent signed a contract with Private School for the 2022-2023 school year. 82 Parent would remain liable for all tuition if claims under IDEA were unsuccessful. 83 I find no issue with the reasonableness of the costs associated with Private School, including tuition. Moreover, I find that the weight of the evidence establishes that Parent cooperated with the DOE and the CSE’s
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Tr. at 51-52, 58-59, 76-82, and 104; Ex. N, O, P and Q. 76
Tr. at 100-101. 77
Gagliardo, 489 F3d at 112. 78
Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at 6 (SDNY 2007). 79
See D.A. v. New York City Dept. of Educ., 769 F Supp 2d 403, 419-20 (SDNY 2011). 80
Ex. B. 81 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”). 82
Ex. H.
Ex. H. efforts to develop an IEP and recommendation by attending the IEP meeting, providing Private School progress updates, and communicating with DOE’s recommended placement location. 84
In contrast to the Parents’ actions, the DOE untimely made a placement recommendation, and the location could not implement the 2022 IEP. Overall, and after considering the record, I find that the equities sufficiently support Parent’s claim for tuition reimbursement and order the DOE to fully fund Student’s tuition to Private School for the 2022-2023 school year.
I also hold that Parent does not need to resubmit the contract to the school as it is part of the hearing record.
B. Home-based ABA services
I hold that the 2021 and 2023 IEPs were inappropriate for meeting Student’s individual needs and failed to provide Student with a FAPE for the 2022-2023 school year. As such, the request for compensatory services is GRANTED, as detailed below.
At issue is whether Student was denied a FAPE when the CPSE did not award ABA homebased services. Parents seek an award to direct funding for unilaterally obtaining ABA home-based services. As detailed below, the DOE failed to demonstrate that they adequately considered the
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recommendation of home-based ABA therapy resulting in a denial of FAPE.
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. 86 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. 87 A hearing officer may award compensatory education relief through supplemental special education or related services when there has been a denial of a FAPE. 88 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. 89
84 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 Educ., 746 F3d 68, 82 (2d Cir. 2014). 85 Tr. at 105. Parent #1 explained that the home provider was not paid for their prior hours as they needed to perform service hours as credit to their BCBA certification. However, the provider will be paid in June 2023 when they start providing 10 hours of home-based service. There was no testimony or documents presented to show that any payment for the past services was deferred until the resolution of a due process hearing. As such, the award will not include reimbursement for past services. 86 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. 87 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). 88
See P. v. Newington Bd. of Educ., 546 F3d 111, 123 (2d Cir. 2008).
Id.
The DOE has the burden of proof on the issue of compensatory education. 90 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. 91
In this action, the DOE failed to meet its burden of persuasion and production. 92 IEP Team Member testified that ABA services are “only available in Early Intervention since they are DOH model, but on the DOE level, we do not provide ABA service per sei. Instead, we use ABA methodology if appropriate for a student.” 93 Significantly, the witness does not indicate why ABA methodology was not appropriate or why another methodology was better suited. Instead, they testified that they do not want to limit teachers to using a single methodology. Given Parent #1’s multiple requests at the IEP meeting for ABA services, the absence of any explanation from the CSE regarding the appropriateness of ABA or other alternative methodologies to meet Student’s individual needs equated to ignoring the Parents’ attempt to participate. While this policy may be relevant when considering in-school instruction, there is no testimony explaining why home-based services were not required to meet Student’s educational needs or to reinforce classroom-taught behavior. The DOE failed to establish the CPSE team properly considering the requests from Parents or that home-based services were not appropriate. Accordingly, Parents were denied a meaningful opportunity to participate in the IEP process.
Regarding the 2023 IEP reconvening meeting, Parent #1 testified to providing the DOE with the 2022 Neurological Report. However, none of the DOE exhibits, or witness testimony establishes that the document was reviewed. As noted above, the Parent’s testimony regarding the service of the document is accepted. Since the IEP team did not review this evaluative document, which contained specific recommendations regarding the Student’s educational needs, the Parent was again denied a meaningful opportunity to participate in the IEP process. Therefore, I hold that DOE failed to offer Student a FAPE in the 2023 IEP.
Moreover, Neuropsychologist’s professional opinion is that Student would benefit from the ABA methodology. Private School Supervisor explained how reinforcement of ABA methodology at home is needed to allow for transition between environments and expand Student’s self-care skills. The service provider currently used is sufficiently experienced and is training for a BCBA certification. 94 The provider will be financially compensated starting in June 2023 at $180 per hour. 95 These services are appropriate to reinforce skills and make Student available to learn during academic instruction.
90 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. 91 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). 92 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. 93
Ex. 11 at ¶35. 94
Tr. at 103-105.
Id. Since the 2022-2023 school year ends in June 2023, the FOFD does not award compensation for any services performed after June 30, 2023.
Based on the failure to provide Student a FAPE and had the request for home-based services been adequately considered, an award of 10 hours per week would have been reasonable. The award of Compensatory services is calculated as follows. Parent #1 and 2022 Neuropsychologist Report detailed that 40 hours of ABA therapy per week was recommended. Student receives 30 hours a
96
week at Private School, so Parents seek 10 hours per week at home. 97 Student has been receiving 56 hours of services already, leaving a deficit of 4-5 hours per week over 46 weeks. 98 Therefore, Student is awarded a bank of 184 hours of ABA home-based services, provided on a 1:1 ratio, at $180.00 per hour. Said services are to be used within two years from the date of this Order.
As a result of the above, the DOE failed to provide Student with a FAPE in the 2022-2023 school year. Accordingly, an award of compensatory services is GRANTED in the amount and terms detailed below.
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 2022-2023 school year, and
(2) 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 $134,760.00 within 30 days of receipt of the invoice from the Private School; and
(3) The DOE shall directly fund a bank of 184 hours of ABA home-based services, provided on a 1:1 ratio, at $180.00 per hour. Said services are to be used within two years from the date of this Order. The DOE shall pay said services within 30 days of receipt of the invoice from the provider and Affidavit confirming services were provided.
So Ordered.
Kevin T. McGrath Dated: June 23, 2023 Kevin T. McGrath, Esq. (signed electronically) Impartial Hearing Officer
96
Tr. at 103; Ex. G. 97
Tr. at 103. Student attends school 6 hours a day equaling 30 hours per week. 98 Tr. at 103-105. The Parents did not submit any specific testimony or documentation on the actual hours of service provided at home. As such, without more specific information in the record, I elect to assume 6 hours per week of services were provided.
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and 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.
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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, Esq. DOE Representative REDACTED IEP Team Member REDACTED, Esq. Parent Representative REDACTED Private School REDACTED Private School Representative REDACTED Private School Teacher REDACTED Public School
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APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
| 1 | Individualized Education Program 21-22, 22-23 12/23/2021 14 |
| 2 | Meeting Notice (CPSE) 12/10/2021 1 |
| 3 | Initial Assessments of Student 2021 59 Determination of Eligibility for Preschool Special |
| 4 | 12/23/2021 1 Education Services |
| 5 | Individualized Education Program 22-23 1/26/2023 20 |
| 6 | Meeting Notice (CPSE) 1/13/2023 1 |
| 7 | REDACTED Teacher Report 1/22/2023 5 |
| 8 | Occupational Therapy Report 10/23/2023 3 |
| 9 | REDACTED Therapy Report 10/23/2020 3 |
| 10 | Speech Therapy Report 8/29/2022 3 |
| 11 | Witness Affidavit – REDACTED 6/2/2023 17 |
| A | Due Process Complaint with IH Confirmation 4/12/2023 10 |
| B | Parent email with Ten Day Notice 9/19/2022 2 CPSE Evaluations: Social History, Psychological, |
| C | Educational, Behavioral Observation, Speech 12/10/21 33 Language, and Occupational Therapy Reports |
| D | Individualized Education Plan 12/23/2021 14 |
| E | Individualized Education Plan 1/26/2023 20 |
| F | Prior Written Notice 1/27/2023 3 |
| G | Neuropsychological Evaluation by REDACTED February 2022 15 |
| H | REDACTED Enrollment Contract 2022-2023 8 |
| I | REDACTED Tuition Affidavit 5/30/2023 1 |
| J | REDACTED Program Description 2022-2023 1 |
| K | REDACTED Curriculum Plan 2022-2023 3 |
| L | Student Schedule 2022-2023 1 |
| M | Student Attendance 2022-2023 2 |
| N | REDACTED Educational Report 1/22/2023 4 |
| O | REDACTED Occupational Therapy Report 2/06/2023 2 |
| P | REDACTED Speech Therapy Report 4/17/2023 2 |
| Q | REDACTED Sensory Processing Evaluation 5/30/2023 5 |
| R | Parents’ Tax Return (1040) 2021 2 |
| S | REDACTED Vineland-3 Assessment 10/24/2022 16 |
| T | REDACTED Behavior Intervention Plan 2022-2023 5 |
| IHO | Exhibits Exhibit Title Date Pages |
| I | Due Process Response 4/26/2023 3 |
| II | Pre-Hearing Conference Summary and Order 5/15/2023 4 |
| III | Post-hearing submissions and emails 6/15/23 |
Footnotes
[3] IHO Ex. I
[4] IHO Ex. II
[5] See Appendix B. 6 Id. IHO Ex. III, which included the proposed documents and email correspondence between the parties on this issue.
[12] Ex. D-11; Ex. F.
[14] Tr. at 35-36; Ex 11 at ¶21. Additionally, the 2022 Neuropsychologist Report is not a listed document in the 2023 IEP Ex. 1; Ex 5; and Ex F. 15 Ex. B. 16 Id.
[17] Tr. at 36-37. Tr. at 40-41.
[26] Id. at 64-65. 27 Id. 28 Id.
[29] Id. at 50 and 65-67.
[30] Id. at 70 and 90; Ex. L. 31 Tr. at 58. 32 Id. at 76-79 33 Id. at 51-52 and 76-79. Id. at 54-55.