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CASE NUMBER: 598367 NYC: 247408
FINDINGS OF FACT AND DECISION
Case Number: 247408
Student’s Name: [Redacted]
School District: N.Y.C. Dept. of Ed., District # [Redacted]
Impartial Hearing Officer: Mohammad Ezzati
Date of Filing: 4/13/2023
Hearing Requested by: Parent
Date of Hearing: 7/18/2023, 7/20/2023
Record Close Date: 7/24/2023
Date of Decision: 7/24/2023
BACKGROUND
The Parent, through Parent Advocate, filed a Due Process Complaint(“DPC”) on or about April 13, 2023. In the DPC, Parent alleges that the Department of Education (“DOE” or “District”) failed to offer Student with a free appropriate public education (“FAPE”) for the 2019-2020, 2020-2021, 2021-2022, 2022-2023, and 2023-2024 school years. (P-A). By way of relief, Parent seeks an award of tuition reimbursement and direct tuition funding for Student’s attendance during the 2021-2022, 2022-2023, and 2023-2024 school years at Private School, a private program not approved by the Commissioner of Education for the education of students with disabilities. Id. Parent is also seeking 1380 hours of compensatory Special Education Teacher Support Services (“SETSS”), 184 hours of compensatory enhanced rate Counseling, and 920 hours of compensatory Applied Behavior Analysis (“ABA”) services. Id. Furthermore, Parent alleges that the equities support their claim for tuition reimbursement and direct funding for the school years at issue. Id.
In light of the foregoing and as more fully discussed below, I find that: (i) the DOE failed to meet its burden that it offered Student a FAPE for the school years at issue, (ii) Private School offers Student with specially designed instruction sufficient to meet Student’s needs, and (iii) the equities support Parent’s requested relief. Furthermore, with regards to Parent’s request for compensatory services, I find that only a partial award is appropriate.
PROCEDURAL HISTORY
I was appointed as the Impartial Hearing Officer on April 14, 2023. On May 17, 2023, the parties appeared for a virtual Pre-Hearing Conference. On that same date, I issued a Pre-Hearing Conference Summary and Order and scheduled a Due Process Hearing.
On July 18, 2023, both parties appeared for a virtual Due Process Hearing. (July 18, 2023 Transcript[1]). DOE Attorney submitted exhibits 1-8 into the record on consent of Parent Advocate. Id. Parent Advocate submitted exhibits A-J, M-N into the record on consent of DOE Attorney. Id. Parent Advocate introduced witness testimony from Parent. Id. DOE Attorney cross-examined Parent. Id. The parties made oral opening statements. Id.
On July 20, 2023, both parties appeared for the second virtual Due Process Hearing. (July 20, 2023 Transcript[2]). Parent Advocate introduced witness testimony from Director and Psychologist. Id. DOE Attorney cross-examined the witnesses. Id. The parties made oral closing statements. Id. A list of the documentary evidence in this proceeding is appended to this Decision.
FINDINGS OF FACT AND DECISION
After a full review of the record generated at hearing, I make the following findings of fact and determinations. Student is classified by the DOE as a child with Autism. (D-1; D-2; D-3; D-4; P-B). Student’s classification and entitlement to special education programming and services is not in dispute.
An Individualized Education Program (“IEP”) dated May 29, 2019 (“2019 IEP”) recommended special education programs and services consisting of: (i) a Special Class (12:1+1) (Defer to CBST), seven times per day; (ii) SETSS (Math), direct/group service, seven times per week; (iii) SETSS (ELA), direct/group service, eight times per week; (iv) Counseling, group service, once per week for thirty minutes, in a special education classroom; (v) Counseling, group service, once per week for thirty minutes, at a separate location with counselor; (vi) Counseling, individual service, once per week for thirty minutes, at a separate location with counselor; (vii) Occupational Therapy (“OT”), individual service, two times per week, thirty minutes per session; (viii) Parent Counseling and Training (“PCAT”), twice a year, sixty minutes per session; (ix) Paraprofessional (Behavior Support), individual service, daily; and (x) Paraprofessional (Transportation), individual service, daily. (D-1). The Placement Recommendation was NYSED-Approved Non-Public School. Id. A 12-month service and/or program was recommended. Id.
An IEP dated June 5, 2020 (“2020 IEP”) recommended special education programs and services consisting of: (i) a Special Class (12:1+1) (Defer to CBST), 35 times per week; (ii)
SETSS (Math), direct/group service, seven times per week; (iii) SETSS (ELA), direct/group service, eight times per week; (iv) Counseling, group service, once per week for thirty minutes, in a special education classroom; (v) Counseling, group service, once per week for thirty minutes, at a separate location with counselor; (vi) Counseling, individual service, once per week for thirty minutes, at a separate location with counselor; (vii) OT, individual service, two times per week, thirty minutes per session; (viii) PCAT, once per month, sixty minutes per session; and (ix) Paraprofessional (Behavior Support), individual service, daily. (D-2). The Placement Recommendation was NYSED-Approved Non-Public School. Id. A 12-month service and/or program was recommended. Id.
An IEP dated May 26, 2021 (“2021 IEP”) recommended special education programs and services consisting of: (i) a Special Class (12:1+1) (Defer to CBST), 35 times per week; (ii)
SETSS (Math), direct/group service, seven times per week; (iii) SETSS (ELA), direct/group service, eight times per week; (iv) Counseling, group service, once per week for thirty minutes, in a special education classroom; (v) Counseling, group service, once per week for thirty minutes, at a separate location with counselor; (vi) Counseling, individual service, once per week for thirty minutes, at a separate location with counselor; (vii) OT, individual service, two times per week, thirty minutes per session; (viii) PCAT, twice a year, sixty minutes per session; and (ix) Paraprofessional (Behavior Support), individual service, daily. (D-3). The Placement
Recommendation was NYSED-Approved Non-Public School. Id. A 12-month service and/or program was recommended. Id.
An IEP dated May 24, 2022 (“2022 IEP”) recommended special education programs and services consisting of: (i) a Special Class (12:1+1) (Defer to CBST), 35 times per week; (ii)
SETSS (Math), direct/group service, seven times per week; (iii) SETSS (ELA), direct/group service, eight times per week; (iv) Counseling, group service, once per week for thirty minutes, in a special education classroom; (v) Counseling, group service, once per week for thirty minutes, at a separate location with counselor; (vi) Counseling, individual service, once per week for thirty minutes, at a separate location with counselor; (vii) OT, individual service, two times per week, thirty minutes per session; (viii) PCAT, twice a year, sixty minutes per session; and (ix) Paraprofessional (Behavior Support), individual service, daily. (D-4). The Placement Recommendation was NYSED-Approved Non-Public School. Id. A 12-month service and/or program was recommended. Id.
An IEP dated May 23, 2023 (“2023 IEP”) recommended special education programs and services consisting of: (i) a Special Class (12:1+1) (Defer to CBST), 35 times per week; (ii)
SETSS (Math), direct/group service, seven times per week; (iii) SETSS (ELA), direct/group service, eight times per week; (iv) Counseling, group service, once per week for thirty minutes, in a special education classroom; (v) Counseling, group service, once per week for thirty minutes, at a separate location with counselor; (vi) Counseling, individual service, once per week for thirty minutes, at a separate location with counselor; (vii) OT, individual service, two times per week, thirty minutes per session; (viii) PCAT, twice a year, sixty minutes per session; and (ix) Paraprofessional (Behavior Support), individual service, daily. (P-B). The Placement Recommendation was NYSED-Approved Non-Public School. Id. A 12-month service and/or program was recommended. Id.
Burden
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 for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).
Prong I
The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order 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.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden. While the DOE submitted the IEPs for the school years at issue into the record, a review of same offers no explanation as to how the CSE made its recommendation, how the IEPs appropriately describes Student, or whether the IEPs are meaningfully calculated to confer educational benefit. In short, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating the IEPs, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”. Endrew F., 137 S.Ct. at 1002. Furthermore, while all the IEPs recommended placement at a NYSED-Approved Non-Public School, the DOE failed to offer an appropriate placement for any of the school years at issue. Therefore, I find that the DOE failed to offer the Student a FAPE for the school years at issue.
Prong II
A private school placement must be "proper under the Act." Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985). This means that the private school must offer an educational program which met the student's special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." Gagliardo, 489 F.3d 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.'" Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)
Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G., 459 F.3d at 364-65. When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. 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. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
Private School is a REDACTED Department of Education state-approved, private, notfor-profit school. (P-D). The integration of the REDACTED Learning Standards is applied to individual students as is appropriate within their IEP. Id. Private School specializes in educating children with Autism Spectrum Disorders, Attention Deficit Disorder/Attention Deficit Hyperactivity Disorder, Anxiety, Bipolar Disorder, Obsessive-Compulsive Disorder, Oppositional Defiant Disorder, and Sensory Integration Disorder. Id. Classrooms are student-centered, learner-active environments with state-of-the-art technology as part of each subject. Id.
Private School utilizes a Behavior Modification System based on a token economy point system. Id. Students earn points that determine rewards for their efforts and accomplishments. Id. It is rooted in consistent positive reinforcement. Id. The point system is designed to increase student awareness of behaviors that are negative and shape more positive behaviors. Id. Faculty use a common language to create consistent expectations in academic, social, and behavioral settings. Id. These strategic programs provide a structure for coaching in these areas. Id. Counselors teach the common language and skills in weekly group counseling settings and emphasize the skills during small group counseling to help students create individual counseling goals. Id. Private School has a transition program that includes career and work exploration, job placement, community service, training in all areas of work including resume, interviewing techniques, and workplace conflict. Id.
Director testified that Student was placed in a classroom with one teacher, one teaching assistant, and a co-teacher in most core classes. (July 20, 2023 Trans.). There are approximately 10-12 students in each classroom. Id. Student was placed in a classroom with like-minded peers who were performing at a similar level. Id. Private School provided all the related services listed on Student’s IEPs with the exception of a direct paraprofessional (behavior). Id.
I find that Parent has met their burden in proving that the private program offered an educational program which met Student’s need under Prong II of the Burlington/Carter standard. The IEPs for the school years at issue all indicate that Student is making academic progress. (D3; D-4; P-B). Furthermore, Director, Psychologist, and Parent all testified that Student is making academic progress at Private School. (July 18, 2023 Trans.; July 20, 2023 Trans.).
In reviewing the record before me, the weight of the evidence establishes that Student’s individual special education needs were addressed by Private School and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364.
Equities
Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
Here, Parent provided the necessary Ten-Days’ Notice of their concerns with the DOE’s offer of a FAPE for Student for the school years at issue. (P-J; P-I; P-H; P-G; P-F). Therein, Parent detailed specific concerns. Id. Parent, furthermore, gave the DOE notice of their intention to unilaterally place the Student at the Private School. Id. No evidence was submitted at hearing describing the DOE’s response to the Ten-Day Letter.
By way of relief, Parent seeks reimbursement for their private school tuition costs and to have the balance of unpaid tuition sent directly to the Private School. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. See e.g. Mr. and Mrs. A.
v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 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”). Having reviewed Parent’s testimony, I find that the unilateral tuition costs far exceed Parent’s income. (July 18, 2023 Trans). Equity demands that the DOE fund Student’s Private School tuition in this instance.
I find no issue with the reasonableness of the costs, including tuition, associated with the Private School. (P-C; IHO-I). Student attended the Private School during the years at issue. Id. Furthermore, I find that Private School developed a comprehensive remote learning plan for periods of time in-person instruction would be suspended during the COVID-19 pandemic. (July 20, 2023 Trans.). Moreover, I find that the weight of the evidence establishes that Parent cooperated with the DOE and its CSE’s efforts to develop an IEP and recommend a program and placement for the school years at issue. (P-J; P-I; P-H; P-G; P-F). Overall and after considering the record at hearing, I find that the equities support Parent’s claim for tuition reimbursement and direct funding.
Compensatory Services
The relief requested by the Parent is equitable in nature, as she is asking the IHO to devise an appropriate remedy to address the DOE’s failure to provide Student with a FAPE for the school years at issue. Specifically, the Parent has requested that the IHO order the DOE to fund: (i) 1380 hours of compensatory SETSS services; (ii) 184 hours of compensatory counseling services; and (iii) 920 hours of compensatory ABA. (P-A).
The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations”. See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy” (Boose v District of Columbia, 786 F. 3d 1054, 1056 [D.C. Cir. 2015], citing Carter, 510 U.S. at 15-16). In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act” (Doe v. East Lyme, 790 F.3d at 454).
An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education” (P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child's education” (Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 [2d Cir. 2008]). Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” (Doe v. East Lyme, 790 F.3d at 454). Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more -- they must compensate”, and “hearing officers may award ‘educational services . . . to be provided prospectively to compensate for a past deficient program’” (Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 522, 525 (D.C. Cir. 2005) (emphasis in original). “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves” (Reid, 401 F.3d at 522) (citations omitted). Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place” (Reid, 401 F.3d at 518).
There are generally two approaches to fashioning a compensatory education award, viz, the “quantitative” approach followed in the Third Circuit (see, e.g., M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 [3d Cir. 1996] [holding that a student denied a FAPE is entitled to compensatory education equal to the period of deprivation]), and the “qualitative” approach relied on by the 6th and D.C. Circuits (see, e.g., Reid, 401 F.3d at 518, 524 [requiring a flexible, fact-specific approach in which the award relies “on individual assessments” and is “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place”]).
The Second Circuit has not taken a preferred approach, opting instead as a general practice to “leave the mechanics of structuring the compensatory education award to the district court’s sound discretion”, so long as “the relief is [] appropriate in light of the purpose of the Act” (Doe v. East Lyme, 790 F.3d at 454, 457; accord L.O. ex rel. K.T. v. New York City Dept. of Educ., 822 F.3d 95, 125 [2d Cir. 2016]; see also Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *26 [E.D.N.Y 2008] [noting that “the Second Circuit has not articulated a test for determining how [compensatory education] services are calculated”, and awarding compensatory relief equal to the amount of time the student was deprived of services]). In calculating an award, a court can also consider “whether compensatory education should be limited to the kinds of services specified in the [IEP], or encompass analogous educational services appropriate to the Student’s current’s needs”; however, the ultimate award “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place” (Doe. v. East Lyme, 790 F.3d at 457) (internal citations omitted).
Under New York law, the DOE has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award under the IDEA. Education Law § 4404(1)(c). However, the Parent also has a responsibility to identify the specific remedy she is seeking so that the IHO can craft an appropriate remedy for the DOE’s failure to provide the Student with a FAPE for the years at issue. See JKG by JK and JKG v. Wissahickon Sch. Dist., 2021 WL 1122526, at *8 (E.D. Pa. 2021), [noting that “[w]hile the Court has discretion to fashion a remedy that it deems appropriate, the Court cannot unilaterally supply the facts necessary to reach such a decision”]; Butler v. Dist. of Columbia, 275 F. Supp. 3d 1, 5 (D.D.C.
2017) [holding that a hearing officer “must solicit the evidence necessary to determine the student’s specific educational deficits resulting from his loss of FAPE and the specific compensatory measures needed to best correct those deficits”] [internal quotes and citation omitted]. Here, the Parent has identified the specific remedy she is seeking and has provided documentary evidence and testimony in support of her request.
A. Compensatory SETSS
In the DPC, Parent requested relief in the form of 690 hours of compensatory SETSS for the 2021-2022 school year and 690 hours of compensatory SETSS for the 2022-2023 school year. For these school years, Student was parentally placed at Private School. Private School provided all the related services listed on Student’s IEPs with the exception of a direct paraprofessional (behavior). (July 20, 2023 Trans.). Furthermore, Director, Psychologist, and Parent all testified that Student is making progress at Private School. (July 18, 2023 Trans.; July 20, 2023 Trans.).
Having found Student’s placement at Private School appropriate under the Burlington/Carter standard, and the testimony of the witnesses that Student is making meaningful progress at Private School, I find that an additional award of compensatory SETSS is inappropriate. Accordingly, Parent’s request for an award of 1380 hours of compensatory SETSS is hereby denied.
B. Compensatory ABA and Counseling
When it comes to remote instruction and the switch to remote and hybrid learning necessitated by the COVID-19 pandemic, there is authority that bears mentioning.[3] The State Review Officer (“SRO”) in this case specifically found that the missed services were missed due to the switch in the provision of instruction from in-person to remote learning in response to the COVID-19 pandemic. The SRO noted that the “CSE's review might include a discussion of whether the student has new or different needs compared to before the pandemic, whether the student experienced a loss of skill or a lack of expected progress towards annual goals and in the general education curriculum, whether evaluations of the student or implementation of an IEP was delayed, and whether some of the student's IEP services could not be implemented due to the available methods of service delivery or whether such methods of service delivery were not appropriate to meet the student's needs ("Return To School Roadmap," 79 IDELR 232; "Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic," at pp. 3-4; see "Supplement #2 -Provision of Services to Students with Disabilities during Statewide School Closures Due to Novel Coronavirus (Covid-19) Outbreak in New York State," at p. 1).
If the parent disagrees with a CSE's determination regarding the student's entitlement to compensatory services, State guidance notes that: Parents of students with disabilities may resolve disputes with school districts regarding the provision of a FAPE by pursuing one of the dispute resolution options provided for in the IDEA. A parent may file a State complaint directly with NYSED in accordance with Commissioner's Regulation section 200.5(l), request mediation in accordance with Commissioner's Regulation section 200.5(h), or file a due process complaint and proceed to hearing in accordance with Commissioner's Regulation section 200.5(j). ("Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic," at p. 5; "Supplement #2 -Provision of Services to Students with Disabilities during Statewide School Closures Due to Novel Coronavirus (Covid-19) Outbreak in New York State," at p. 6).
The SRO continued: “At this point, the CSE should have reconvened to develop an IEP for the student for the 2021-22 school year (see Parent Ex, B at p. 1 [showing a projected date of annual review of April 6, 2021]), and the parent was required to raise these concerns concerning the student's regression and compensatory education with the CSE in the first instance. As discussed above, the USDOE and NYSED's Office of Special Education have indicated that, under these unique circumstances, a CSE should have the first opportunity to consider the student's needs and whether any additional services may be warranted as a result of the pandemic. Accordingly, the IHO erred in ordering compensatory education at this juncture.”
Here, in the DPC, Parent has plead that Student received virtual instruction during the COVID-19 pandemic and was not able to receive educational benefit from the virtual instruction. As relief, Parent is requesting a compensatory award. The record supports a finding that the CSE has already considered Student’s needs and made a determination as to the additional services that may be warranted as a result of the pandemic. The 2023 IEP includes a section titled ‘Compensatory Services’ that indicates Student requires “additional services to address lost skills and/or lack of expected progress due to the periods of remote and blended learning beginning in March 2020.” (P-B). The CSE determined that Student required the following services to remedy the lost skills and/or lack of expected progress due to the periods of remote and blended learning beginning in March 2020: (i) SETSS (Math), direct/individual service, 147 sessions, sixty minutes per session; (ii) SETSS (ELA), direct/individual service, 168 sessions, sixty minutes per session; (iii) Counseling, individual service, 42 sessions, thirty minutes per session; and (iv) OT, individual service, 21 sessions, thirty minutes per session. Id.
The record sufficiently supports the finding that the CSE has already considered Student’s needs and made a determination as to the additional services that may be warranted as a result of the pandemic. However, I find that the compensatory services granted by the CSE to be insufficient. Director testified that during the 2020-2021 school year, Private School had a hybrid schedule with students attending in person Monday thru Thursday and virtually on Friday. (July 202, 2023 Trans.). The record indicates that Student struggled with virtual instruction and did not receive educational benefits.
From March 2020 through June 2020, Student received virtual instruction, constituting
18 weeks of the school year. For the 2020-2021 school year, 20% of Student’s instruction was provided virtually (Fridays every week), constituting approximately 8.5 weeks of the school year. (July 20, 2023 Trans.). During this COVID period, Student was mandated to receive 185.5 hours of SETSS (Math), 212 hours of SETSS (ELA), and 39.75 hours of Counseling. (D-1: D-2). In total, Student was mandated 397.5 hours of SETSS in the IEPs. Id. In the 2023 IEP, the CSE recommended a total of 315 hours of compensatory SETSS. (P-B). The record supports the conclusion that Student was not able to receive an educational benefit during the remaining 82.5 hours of virtual SETSS. Furthermore, Student’s classification with Autism and documented behavioral issues warrant ABA services. Accordingly, Parent is entitled to 82.5 hours of compensatory 1:1 special education instruction to be provided by an independent qualified BCBA or LBA.
Parent is also requesting at-home ABA services. While there is undoubtedly a benefit to Student’s receipt of a home-based 1:1 ABA program, services that are intended to generalize skills outside the classroom are not required by the IDEA. See F.L. and M.L. ex rel. F.L. v. New York City Dept. of Educ., 2016 WL 3211969, at *11 (S.D.N.Y. 2016); P.S. v. New York City Dept. of Educ., 2014 WL 3673603, at *13-14 (S.D.N.Y. 2014); C.M. and S.M. ex rel. L.M. v. Mount Vernon City Sch. Dist., 2020 WL 3833426, at *26 (S.D.N.Y. 2020); L.K. v. New York City Dept. of Educ., 2016 WL 899321, at *8-10 (S.D.N.Y. 2016), aff’d in part, L.K. v. New York City Dept. of Educ., 674 Fed. App’x 100 (2d Cir. 2017). Although a school district may be required to offer services that seek to improve generalization “if a student’s difficulty in generalizing skills prevents him from making the progress required under the IDEA” (L.K., 2016 WL 899321, at *9), the hearing record fails to establish that Student is unable to make progress in the classroom without a home-based ABA program. The primary purpose of the home-based ABA program recommended for Student is to generalize skills outside the classroom. The DOE was under no obligation during the school years at issue to recommend or provide any home-based ABA services to generalize Student’s skills outside the classroom. Accordingly, the reasoning for home-based ABA instruction recommended for Student and requested by Parent is unavailing. Consequently, I further find that additional relief for BCBA or LBA supervision is not warranted.
During the COVID period, Student was mandated to receive 39.75 hours of Counseling. (D-1; D-2). In the 2023 IEP, the CSE recommended a total of 21 hours of compensatory Counseling. (P-B). The record supports the conclusion that Student was not able to receive an educational benefit during the remaining 18.75 hours of virtual Counseling. Furthermore, Student’s classification with Autism and documented behavioral issues warrant the provision of Counseling services by a BCBA or LBA. Accordingly, Parent is entitled to 18.75 hours of compensatory 1:1 Counseling services to be provided by an independent qualified BCBA or LBA.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT:
IT IS HEREBY, ORDERED, that the DOE shall reimburse Parent in the amount of $63,083.74 dollars for Student’s tuition at Private School for the 2021-2022 school year, within thirty (30) days of submission of proof of payment; and it is further,
ORDERED, that the DOE shall reimburse Parent in the amount of $68,442.66 dollars for Student’s tuition at Private School for the 2022-2023 school year, within thirty (30) days of submission of proof of payment; and it is further,
ORDERED, that the DOE shall pay to Private School the remainder of any tuition funds, totally $73,687.85 dollars within 30 days of submission of a signed, notarized bill encompassing, tuition costs owed by Parent to Private School for Student’s attendance at Private School for the 2023-2024 school year; and it is further,
ORDERED, that the DOE shall fund a total of 82.5 hours of compensatory 1:1 special education instruction or ABA therapy services for Student, to be provided by an independent qualified BCBA or LBA selected by Parent, who shall be paid at a rate not to exceed $200.00 dollars per hour, such payment to be made within thirty (30) days of Parent’s submission to the DOE of the provider’s invoice for such services; and provided, that the compensatory 1:1 special education instruction or ABA therapy services shall be fully used by June 30, 2025; and it is further,
ORDERED, that the DOE shall fund a total of 18.75 hours of compensatory 1:1 Counseling services for Student, to be provided by an independent qualified BCBA or LBA selected by Parent, who shall be paid at a rate not to exceed $290.00 dollars per hour, such payment to be made within thirty (30) days of Parent’s submission to the DOE of the provider’s invoice for such services; and provided, that the compensatory 1:1 Counseling services shall be fully used by June 30, 2025.
Dated: 7/24/2023
_____________________
Mohammad Ezzati
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DISTRICT EVIDENCE
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| 1 | Individualized Education Program (19-20 school year) | 5/29/2019 | 31 |
| 2 | Individualized Education Program (20-21 school year) | 6/5/2020 | 29 |
| 3 | Individualized Education Program (21-22 school year) | 5/26/2021 | 25 |
| 4 | Individualized Education Program (22-23 school year) | 5/24/2022 | 27 |
| 5 | Prior Written Notice | 6/5/2019 | 4 |
| 6 | Prior Written Notice | 5/5/2020 | 3 |
| 7 | Consent for Evaluation | 3/13/2020 | 3 |
| 8 | Social History Update | 6/11/2019 | 3 |
PARENT EVIDENCE
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| A | Notarized Request for Impartial Hearing | 4/12/2023 | 11 |
| B | Individualized Education Program (23-24 school year) | 5/23/2023 | 35 |
| C | Affidavit from Private School, Verifying Tuition Payments for the 2021-2022 and 2022-2023 school years | 7/7/2022 and 6/6/2023 | 2 |
| D | Affidavit of Director | 7/10/2023 | 4 |
| E | Affidavit of Psychologist | 7/10/2023 | 1 |
| F | Email with Ten-Day Letter of Unilateral Placement | 6/15/2023 | 2 |
| G | Email with Ten-Day Letter of Unilateral Placement | 6/20/2023 | 3 |
| H | Email with Ten-Day Letter of Unilateral Placement | 8/23/2022 | 4 |
| I | Email with Ten-Day Letter of Unilateral Placement | 6/24/2021 | 2 |
| J | Email with Ten-Day Letter of Unilateral Placement | 6/16/2020 | 2 |
| M | First Affidavit of Parent | 6/22/2023 | 6 |
| N | Second Affidavit of Parent | 7/11/2023 | 9 |
IHO EXHIBITS
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| I | Private School Contract for 2023-2024 school year | 7/13/2023 | 1 |
APPENDIX
REDACTED
Footnotes
[1] The instant decision is being issued prior to the completion of the July 18, 2023 transcript. As such, any reference to the transcript is based on IHO notes.
[2] The instant decision is being issued prior to the completion of the July 20, 2023 transcript. As such, any reference to the transcript is based on IHO notes.
[3] See Application of a Student with a Disability, Appeal No. 22-031.