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CASE NUMBER: 598721 NYC: 247673
FINDINGS OF FACT AND DECISION
Case Number: 247673 Student’s Name: STUDENT School District: SCHOOL DISTRICT Impartial Hearing Officer: Michele Host Date of Filing: April 24, 2023 Hearing Requested by: PARENT Dates of Hearing: June 30, 2023
July 14, 2023 Record Close Date: July 20, 2023 Time Sensitive: YES Date of Decision: July 21, 2023 Findings of Fact and Decision Case No. 247673
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 30, 2023:
REDACTED (“Parent’s Counsel”) — Student
REDACTED (“Director of Education”) — Student
REDACTED (“BCBA”)
REDACTED (“Psychologist”) REDACTED (“Parent”)
For the District:
REDACTED (“DOE Counsel”)
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 14, 2023:
Parent’s Counsel — Student
DOE Counsel — District
Findings of Fact and Decision — District
INTRODUCTION AND PROCEDURAL HISTORY
This matter concerns the Student, redacted year-old student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). The Student’s eligibility for special education supports and services is not in dispute.
This matter comes before me on the Parents’ due process complaint, filed on or about April 24, 2023, concerning the 2022-2023 school year. In the Parents’ due process complaint, the Parents allege that the DOE failed to provide the Student with a free and appropriate public education (“FAPE”) for the 2022-2023 school year in multiple respects, including by failing to recommend an appropriate program and placement for the 2022-2023 school year, failing to offer appropriate methodologies to meet the Student’s needs, failing to provide the Student with occupational therapy (“OT”), failing to provide the Student with counseling, and failing to provide the Student with home-based Applied Behavioral Analysis (“ABA”) therapy under the supervision of a board certified behavior analyst (“BCBA”). (P-A) As relief, the Parents seek direct funding for the Student’s tuition at the private school the Parents enrolled the Student in for the last few months of the 12-month 2022-2023 school year (“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, as well as compensatory services, a reconvene of the Committee on Special Education (“CSE”) with an order to develop a new Individualized Education Program (“IEP”) for the Student, and transportation. The Parents also request attorneys’ fees.[1] (P-A, p. 15)
Findings of Fact and Decision
I was appointed to this matter on April 25, 2023, and held a pendency hearing on May 10, 2023. During the pendency hearing, Parents’ exhibits A through K were entered into the record, and the Director of Education at the Private School (“Director of Education”) was cross-examined by the DOE. The DOE entered no exhibits into the record and called no witnesses to testify. On May 24, 2023, I issued an order denying the Parents’ request for pendency in this matter. I conducted a pre-hearing conference in this matter on June 6, 2023, and scheduled a due process hearing for June 30, 2023. In advance of the hearing, Parent’s Counsel disclosed proposed exhibits L through AA, and the DOE did not disclose any exhibits.
The due process hearing began on June 30, 2023. At the beginning of the hearing, DOE Counsel stated that the DOE would not present any evidence or witness testimony, and that the DOE would concede Prong I of the Burlington-Carter test. (Tr. 6) I entered the Parents’ exhibits L through AA into evidence without objection.[2] (Tr. 6-8) The DOE waived its opening statement, and Parents’ Counsel made an opening statement. (Tr. 8-17) The DOE rested after the Parents’ opening statement. (Tr. 18)
The Parents’ evidence included testimonial affidavits from the BCBA who runs the agency that provided the Student with ABA services beginning in November 2022 (“BCBA”); the Director of Education; the psychologist who conducted the Student’s April 10, 2022 neuropsychological evaluation (“Psychologist”); and the Student’s mother (“Mother”). The
DOE cross-examined the BCBA, the Director of Education, and the Psychologist. The Parents then rested, and both parties made closing arguments.
Findings of Fact and Decision
I reopened the hearing on July 14, 2023, to ask the parties additional questions regarding the relief requested by the Parent.
The record in this case closed on July 17, 2023. A list of the documentary evidence in this proceeding is appended to this decision.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law Art 89 § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. Part 200, and Section 504 of the Rehabilitation Act.
FINDINGS OF FACT
After considering all the evidence, as well as the closing arguments of both parties, my findings of fact are as follows:
The Student is redacted years old and is classified by the DOE as a Student with Autism.
(Tr. 9; P-D, p. 1) The Mother testified that the Parents had concerns about the Student’s behavior when the Student enrolled in pre-kindergarten at a public school for the 2018-2019 school year. At that time, the Mother testified, the Student “had very low frustration tolerance, would hit [the Student’s] peers and always had a very hard time transitioning from one activity to another.” (P-Z, ¶ 3) The Student was found eligible for special education services in 2019, but the Student continued to struggle. During kindergarten, the Student’s teachers reported that the Student “would push and hit others and throw objects in the class” and “refuse to do any academic tasks whatsoever.” (Id., ¶ 7) The Mother testified that the Parents took the Student for a private evaluation in November 2019, at which time the Student was diagnosed with Autism, Findings of Fact and Decision and the evaluator recommended ABA for the Student, a “much quieter school and an auditory processing evaluation, as well as a paraprofessional.” (P-Z, ¶ 8)
The Mother testified that the Student continued to struggle during 2020 and 2021. The
Mother testified that the Student’s May 2020 IEP stated the Student was hitting and spitting on fellow students, flipping over chairs, and throwing materials to the floor. (P-Z, ¶ 11) After the Student began second grade during the 2021-2022 school year, the Student’s teacher told the Mother that the Student pulled other students’ hair, took their face masks, threw his lunchbox at another student, and bit the Student’s 1:1 paraprofessional. (Id. at ¶ 15) In February of 2022, the Parents received a promotion in doubt letter for the Student. (P-T; Z, ¶ 16)
A neuropsychological examination of the Student dated April 10, 2022, stated that the Student should be “referred immediately to the Central Based Support Team (CBST)” because the Student “requires a placement in a specialty non-public school program which addresses the total educational needs of bright children with significant symptomatology of ASD who experience behavioral issues preventing them from accessing their educational program.” (P-N,
p. 29) The evaluation confirmed the Student’s Autism diagnosis and also diagnosed the Student with Social Pragmatic Language Disorder, Specific Learning Disorder with impairment in reading (with deficits noted in comprehension) – SEVERE; Specific Learning Disability with impairment in mathematics: including number sense, memorization of arithmetic facts, accurate or weak calculation, weak math reasoning – SEVERE; and Attention Deficit/Hyperactivity Disorder, combined type. (Id., p. 29)
The evaluation contains detailed recommendations for the Student, including but not limited to 1:1 intensive ABA instruction; a functional behavior analysis (“FBA”) and a behavior intervention plan (“BIP”); 1:1 speech-language therapy (“SLT”) 30 minutes per week and small Findings of Fact and Decision group therapy; OT; compensatory 1:1 academic instruction; counseling; and parent counseling and training (“PCAT”). (Id.) The evaluation also recommends that the Student receive services on a 12-month basis. (Id.)
On September 17, 2022, a different IHO entered a decision (“the prior FOFD”)
addressing an earlier DPC filed by the Parents alleging that the DOE failed to provide the Student with a FAPE for the 2019-2020, 2020-2021, 2021-2022, and 2022-2023 school years.
(P-C) The Parents’ claim for relief regarding the 2022-2023 school year challenged a May 27, 2022 IEP for the Student that recommended placement for the Student in a DOE specialized public school, with counseling twice a week (once individually and once in a group); OT three times a week on an individual basis; PT once a week on an individual basis and once a week in a group; SLT twice a week on an individual basis; a full-time paraprofessional; a BIP; and 12- month programming. (P-C, p. 13)
The prior FOFD found that the DOE failed to meet its burden of proving the appropriateness of its recommendations and programs for any of the school years at issue. (P-C,
p. 18) The prior IHO directed the CSE to reconvene and recommend a program deferring the Student’s placement to the CBST for placement in an appropriate non-public school (“NPS”).
The prior IHO further ordered that until the CBST could find an NPS for the Student, the DOE must provide the Student PT twice a week for individual 30-minute sessions; SLT three times per week for 30 minute sessions, twice a week individually, and once in a group; counselling twice a week for 30-minute sessions, with at least one session to be provided individually; at-home ABA therapy 10 hours per week, with one hour per week of BCBA supervision; PCAT with a BCBA four hours per month, individually; 30 hours of push-in ABA therapy in the Student’s classroom, as well as 1 additional hour of BCBA supervision. The prior FOFD also Findings of Fact and Decision
ordered an AT evaluation and a feeding evaluation. The DOE was instructed to follow the results of the AT and feeding evaluations when they were completed, as well as the Student’s recent Auditory Processing Evaluation.
The prior FOFD also contained an order directing the DOE to fund compensatory services for the Student, including 800 hours of ABA therapy; 180 hours of BCBA supervision; and 72 hours of PCAT. (P-C, p. 26)
On October 3, 2022, a CSE convened and issued an IEP for the Student, who was then in the third grade at a public school. (P-D, p. 1) The IEP classifies the Student as a Student with
Autism, and notes that the Student had other diagnoses including “social pragmatic disorder, specific learning disorder with impairment in reading, written expression, and mathematics, as well as ADHD combined type.” (Id.) The IEP also states that the Student engaged in maladaptive behaviors including “hitting, kicking, screaming, biting, head butting, eloping, and throwing objects.” (Id.) The IEP reports that the Student performed “well below grade level” on reading assessments and in social studies, and was performing at kindergarten level in math. (P-D, pp. 2-3) The IEP states that the Student learned best from 1:1 instruction. (P-D, p. 2)
The IEP’s recommendations largely followed the prior FOFD’s orders. The IEP recommended that the Student’s placement be in a “NYSED-Approved Non Public School—
Day.” (P-D, p. 23) The implementation date for the IEP was October 3, 2022. (P-D, p. 1)
Until the Student could be placed in an NPS, the IEP recommended that the Student be placed in an 8:1+1 special education classroom for academic subjects, and that the Student receive counseling services 2 times per week for 30 minutes, individually; OT 3 times per week for 30 minutes, individually; PT 2 times per week for 30 minutes, individually; SLT 2 times a week for 30 minutes, individually, and 1 time per week for 30 minutes in a group. (P-D, pp. 7, Findings of Fact and Decision 17) The IEP also recommended parent counseling and training (“PCAT”) 4 times per month for 60 minutes. (Id.)
The October 3, 2022 IEP also recommended push-in ABA therapy in the Student’s classroom for 30 hours per week and push-in BCBA supervision in the Student’s classroom for one hour per week until the Student could be placed in an NPS, as well as home-based ABA therapy for the Student for 10 hours per week; home-based BCBA supervision for 1 hour per week; and BCBA PCAT 4 hours per month. All of these ABA-related recommendations had a termination date of February 3, 2023, which the Mother testified was “surprising.” (P-D, p. 18;
P-Z, ¶ 29) The Mother also testified that the Student’s application packet was sent to five different non-public schools, and the Student was rejected from all of them. The Mother testified that “no one provided any real explanations, we heard that some did not have seats available and others were not supportive enough.” (P-Z, ¶ 30)
While the NPS application process was going on, the Student’s behavior at the Student’s public school continued to deteriorate. (P-Z, ¶¶ 31-32) The Mother testified that the Student’s school called her daily, and the principal told her that the Student “would have to be removed.”
(P-Z, ¶ 31) The Mother also testified that by November 2022, the Student was dealing with suicidal ideation. (P-Z, ¶ 32) The Parents informed the school of their concerns, and the school “provided little support only recommending [the Student] be taken to a psychological emergency room.” (Id.) The school did eventually create a Crisis Safety Plan for the Student, but the school did not share it with the parents until January 2023. The Mother testified that the school’s calls and emergency messages were so frequent that she had to leave her job. (P-Z, ¶ 37) The Mother called the CBST multiple times to follow up on the Student’s placement. (Id., ¶ 39)
Findings of Fact and Decision
The BCBA runs a full-service agency providing intensive ABA services (“ABA
Agency”) that began providing home-based ABA to the Student and push-in ABA services at the Student’s public school on November 1, 2022. (P-W, ¶¶ 7, 32) The BCBA testified that when the ABA Agency began working with the Student, the BCBA conducted an FBA and developed a BIP to address the Student’s maladaptive behaviors. (P-W, ¶ 33) The BCBA testified that within a few weeks of implementing the BIP, the Student “demonstrated a decrease in physical aggression behaviors. [The Student] increased the use of functional communication phrases (i.e.,
‘I need a break’, ‘I need help’, ‘I need space’ that were taught by the ABA therapist.” (P-W, ¶ 34) The Student’s elopement and off-task behaviors decreased, and the Student produced academic work. (Id., ¶ 35)
On March 29, 2023, the Parents sent the DOE a ten-day notice letter outlining the Student’s educational history, referencing the prior FOFD, and noting that the Student was deferred to the CBST but had still not been placed in an NPS. (P-B, p. 9; Z, ¶ 41) The Parents wrote that they disagreed with the Student’s public school placement and would be placing the Student at the Private School. (P-B, p. 9)
The Student began attending the Private School on April 24, 2023, at which time the ABA Agency stopped providing push-in school-based ABA. (P-AA, ¶ 39; W, ¶ 32) The Private School “is dedicated to the treatment, education and support of individuals with autism spectrum disorders and other special needs through empirically based procedures.” (P-H, p. 2) The
Private School uses ABA to teach students and reduce inappropriate behaviors. (Id.) Each student at the Private School has a BCBA Case Manager who analyses students’ progress and evaluates inappropriate behaviors using functional behavior assessments. The Private School has Findings of Fact and Decision
two sensory gyms and provides related services such as SLT, OT, and PT. (P-H, p. 3) The
Private School provides services on a 1:1 basis. (Id. at p. 5)
At the Private School, the Student received OT twice a week for 45 minutes on a 1:1 basis; SLT twice a week for 30 minutes on a 1:1 basis and once a week for 30 minutes in a group; PT twice a week for 30 minutes on a 1:1 basis, and BCBA supervision for one hour per week. (P-AA, ¶ 22) The Student’s academic subjects were taught using 1:1 ABA therapy, which the Student received for 27.5 hours per week. (Id.; Tr. 31-32)
While the Student was enrolled at the Private School, the Student continued to receive 10 hours per week of at-home ABA, 1 hour per week of BCBA, and the Parents received 1 hour per week of PCAT. (P-W, ¶¶ 32-53)
Even after the Student began attending the Private School, the Parents remained open to potential placements from the DOE. In June 2023, the Parents toured an NPS recommended by the DOE, accompanied by the BCBA. (P-W, ¶¶ 39-42; Z, ¶ 42) That NPS rejected the Student as well. (P-W, ¶ 42; Z, ¶ 42;)
The Student’s tuition at the Private School for the period between April 24, 2023, and June 30, 2023, was $65,836.00. (P-Z, ¶ 43) The Mother testified that the family’s “current household income is about $60,000 and paying this tuition would be an impossibility.” (P-Z, ¶ 43)
CONCLUSIONS OF LAW AND ANALYSIS
The IDEA establishes a “substantive right to a ‘free appropriate public education’” for children with disabilities. Endrew F. v. Douglas Co. School Dist, 137 S. Ct. 988, 993 (2017)
(quoting Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982)). The IDEA directs that, in general, an IHO’s decision must be made on Findings of Fact and Decision substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). Under the IDEA and New York law, where there is a procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE. See 20 U.S.C. § 1415 (f)(3)(E)(ii); 8 N.Y.C.R.R. § 200.5(j)(4)(ii).
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 CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). “Not every procedural error will render an IEP legally inadequate.” M.H. v. New York City Dep’t of Educ., 685 F. 3d 217, 245 (2d Cir. 2012) (citation omitted). 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 benefits. 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).
In general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i).
A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. School districts are not required to “maximize” the potential of students with disabilities, but must provide “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the Findings of Fact and Decision student with an opportunity greater than mere ‘trivial advancement.’” Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003).
The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v.
Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.
A school district’s failure to implement a student’s IEP constitutes a denial of FAPE under the IDEA. D.C. ex rel. E.B., 950 F. Supp. 2d at 509; Van Duyn ex rel. Van Duyn v. Baker
Sch. Dist. 5J, 502 F.3d 811, 821 (9th Cir. 2007) (holding that a failure to implement an IEP may deny a child a FAPE and give rise to a claim under the Act). However, a party challenging the implementation of an IEP “must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP.” D.D-S v. Southold Union Free Sch.
Dist., 2011 U.S. Dist. LEXIS 100809, at *40 (E.D.N.Y. 2011), quoting Houston Ind. Sch. Dist. v.
Bobby R., 200 F.3d 341, 349 (5th Cir. 2000).
Throughout the hearing process, a school district bears the burden to show that it (1)
complied with the IDEA’s procedural requirements; and (2) designed an IEP reasonably calculated to confer educational benefit on the student. C.B. ex rel W.B. v. N.Y. City Dep’t of Educ., 2005 U.S. Dist. LEXIS 15215, *37 (E.D.N.Y. June 10, 2005); 20 U.S.C.
1415(i)(2)(C)(iii); see also Walczak, 142 F.3d 119. However, “a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” N.Y. Educ. §
4404(1)(c).
Under the three-prong test established by the Supreme Court in Sch. Comm. of Burlington, Mass, v. Dep’t of Educ. of Mass, 471 U.S. 359 (1985) and Florence County. Sch.
Findings of Fact and Decision
Dist. Four v. Carter, 510 U.S. 7 (1993), parents who unilaterally place their children in private school are entitled to reimbursement from the school district if the services offered by the school district were inadequate or inappropriate, the services selected by the parent(s) were appropriate, and equitable considerations support the parent’s claim. See also Frank G. and Dianne G. v. Bd.
of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert. denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 U.S. LEXIS 11520 (Oct. 15, 2007). The first prong of the Burlington-Carter test encompasses whether the student’s IEP provided a FAPE. Brock v.
Dutton, 2015 U.S. Dist. LEXIS 44254, *14 (S.D.N.Y. March 31, 2015).
The Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d.
Cir. 2007) (quoting Frank G. v. Bd. of Educ., 459 F.3d at 364-65). The private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.” Frank G. v. Bd. of Educ., 459 F.3d at 364.
The final prong of the Burlington-Carter test involves the balancing of the equities. 20 U.S.C. § 1412(a)(10)(C)(iii). Reimbursement may be limited or denied if the parents failed to act reasonably, did not cooperate with the DOE’s attempts to evaluate the student, or failed to provide proper notice of the parents’ rejection of the Student’s placement. See 20 U.S.C. § 1412(a)(10)(C)(iii). When considering whether the parents have shown that the equities weigh in the parents’ favor, it is important to consider “whether the [parents] cooperated with the district in its efforts to meet its obligations under the IDEA.” C.L v. Scarsdale Union Free Sch.
Dist., 744 F.3d 826, 840 (2d Cir. 2014).
Findings of Fact and Decision
Compensatory Education
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) (citations omitted). 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 Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015). Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.” Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) (emphasis in original). An award of compensatory education “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.” Reid, 401 F.3d at 518, 524. Compensatory education awards may include reimbursement for out-of-pocket educational expenses paid by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services obtained by the parent are an appropriate alternative. Foster v. Bd. Of Educ., 611 Fed. App’x 874, 878-79 (7th Cir. 2015); Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 277-78 (3d Cir. 2014).
Findings of Fact and Decision
Section 504 of the Rehabilitation Act
Section 504 prohibits discrimination against qualified students with a disability. 29 U.S.C. § 794(a). Section 504 states, “[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).
Section 504 requires that school districts provide qualified students with a “free appropriate public education… regardless of the nature or severity of the person’s [disability].”
34 C.F.R. § 104.33(a). Under Section 504, an appropriate education means “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to [504’s] procedures.” 34 C.F.R. § 104.33(b).
Section 504 requires that recipients of federal funds that operate public educational programs or activities must “establish and implement . . . a system of procedural safeguards that includes...an impartial hearing with opportunity for participation by the [student’s] parents or guardian and representation by counsel, and a review procedure.” 34 C.F.R. § 104.36. 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 New York City Department of Education delegated to OATH the authority to adjudicate due process complaints under Section 504. [3]
Findings of Fact and Decision
I find that the Parents’ 504 claims are subsumed within the framework of the IDEA. The
Parents did not identify any specific regulatory requirement under 504 that is not subsumed under the IDEA that would merit separate analysis and discussion. Therefore, I will not separately analyze the 504 claims raised in the complaint.
Burlington-Carter Test Prong One
As to Prong I of the Burlington-Carter test, the DOE failed to meet its burden at hearing.
The Supreme Court has found a reviewing court may expect 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.”
Endrew F. v. Douglas County School District, 137 S.Ct. 988, 1002 (2017). In this case, the DOE conceded that it failed to meet Prong I of the Burlington Carter test, called no witnesses, and entered no evidence into the record. Therefore, I cannot find that the DOE offered the Student a FAPE for the 2022-2023 school year. Moreover, the weight of the evidence in this matter supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer the Student a FAPE for the 2022-2023 school year.
Burlington-Carter Test Prong Two: The Appropriateness of the Parents’ Unilateral Placement
A unilateral 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 relevant standard to apply is whether “the unilateral private placement . . . provides educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo, 489 F.3d at 115 (quotations omitted). No single factor is dispositive in this analysis. Id. The private placement does not necessarily need to provide certified special education teachers or Findings of Fact and Decision every special service that could assist in maximizing the Student’s potential. Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 2020 U.S. Dist. LEXIS 16007 (S.D.N.Y. 2020), aff’d 2020 U.S. App. LEXIS 39739 (2d Cir. 2020) (citation omitted). Moreover, parental placements are not subject to the same mainstreaming requirements as a school district placement. Frank G. v.
Bd. of Educ., 459 F. 3d at 364.
In this case, the Parents submitted a program description from the Private School, as well as two affidavits from the Director of Education. (P-H; K; AA) The BCBA and the Mother also testified in support of the Parents’ position that the Private School’s educational program for the Student was reasonably calculated to produce progress for the Student. (P-W; Z)
As noted above, the Private School provided the Student with OT twice a week for 45 minutes on a 1:1 basis; SLT twice a week for 30 minutes on a 1:1 basis and once a week for 30 minutes in a group; PT twice a week for 30 minutes on a 1:1 basis, and BCBA supervision for one hour per week. (P-AA, ¶ 22) The Student’s academic subjects were taught using 1:1 ABA therapy, which the Student received for 27.5 hours per week. (Id.) The Director of Education testified that the Student “requires a 1:1 program with the above mandates because of the intense deficits [the Student] faces and [the Student’s] high need for individualized learning, repetition and individualized reinforcement to make meaningful progress. Additionally, [the Student]
requires a high level of consistency and collaboration across providers to ensure meaningful progress.” (P-AA, ¶ 38)
The Director testified that, as of the date of the Director’s affidavit, the Student’s ABA, SLT, OT, and PT goals for the upcoming year were being developed, although the Student had been evaluated using the assessment of basic language and learning skills (“ABLLS”). The
ABLLS assessment revealed that the Student has strengths in receptive language, motor Findings of Fact and Decision imitation, and math skills, and deficits in using spontaneous language, social skills, labeling, and requesting. The Director of Education testified that during the school day the Student engages in inappropriate behaviors including “tantrum behavior, aggressions, elopement, spitting, and inappropriate language,” and the Private School is in the process of conducting an FBA for the Student. (P-AA, ¶ 35)
The Director of Education testified that during the Student’s “limited time thus far” at the Private School, the Student “has made progress.” (P-AA, ¶ 36) Specifically, the Director of Education noted the Student’s ability to complete program schedules that consist of three to four programs, identify different zones of regulation, follow behavior rules during transitions, and complete daily routines. The Director also testified that the Student has demonstrated an interest in socializing with other students and has performed well during the Student’s speech group. (P-AA, ¶ 36)
The BCBA testified that, in her view, the Private School is an appropriate placement for the Student because the Private School “has staff who are certified and licensed and have years of experience working with students with severe behaviors that prevent them from learning.” (P-
W, ¶ 38) The Mother testified that the Parents have seen progress in the Student both in home and at school since the Student enrolled at the Private School. (P-Z, ¶ 44)
As noted earlier, the DOE did not object to the Parents’ evidence being entered into the record, including the sworn affidavits of the Parents’ witnesses. The DOE’s cross-examination of the Educational Director, the BCBA, and the Psychologist does not undermine or controvert the testimony given by those witnesses. I therefore credit the testimony of the Parents’ witnesses in full.
Findings of Fact and Decision
I find that the Parents have met their burden to prove that the private program offers an educational program that meets the Student’s needs under Prong Two of the Burlington/Carter standard. The weight of the evidence establishes that the Student’s individual special education needs are being addressed by the Private School and that the instruction offered is “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364.
Burlington-Carter Test Prong Three: Equitable Factors
Equitable factors are relevant to fashioning relief under the IDEA. Burlington, 471 U.S. at 374; 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) (citations omitted); see also 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”). Reimbursement of private school tuition 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. 20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 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 U.S. Dist. LEXIS 11354 (S.D.N.Y. Feb. 4, 2008); Werner v. Clarkstown
Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 (S.D.N.Y. 2005).
The IDEA allows that reimbursement 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 [FAPE] to their child, Findings of Fact and Decision including stating their concerns and their intent to enroll their child in a private school at public expense.” 20 U.S.C. § 1412(a)(10)(C)(iii)(I); see 34 C.F.R. § 300.148(d)(1). This statutory requirement “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.” Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004).
In this case, the record does not establish that the Parents “acted with the requisite level of unreasonableness or misconduct that reimbursement should be denied on equitable grounds.”
Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ., 550 F. Supp 2d 420, 437 (S.D.N.Y.
2008). There is nothing in the hearing record to suggest, let alone demonstrate, that the Parents interfered in any manner with the CSE’s evaluation of the Student or prevented it from providing the Student with a FAPE for the 2022-2023 school year. The Mother testified credibly regarding her cooperation with the CSE and the CBST. (P-Z, ¶¶ 26-28, 39, 42) The Mother also described her visit to a state-approved NPS after the Parents unilaterally placed the Student at the Private School, underscoring the Parents’ willingness to work with the DOE. (P-Z, ¶ 42)
The DOE has raised no argument that the equities would not weigh in favor of the Parents.
The record supports a finding that the Parents cooperated fully with the DOE and timely sent the requisite ten-day notice to the DOE in advance of their removal of the Student from the Student’s public school placement.
In addition, the record clearly establishes that the Parents incurred an obligation to pay the Private School the aggregate tuition sum of $65,836.00, which the Mother testified the Parents are unable to pay. (P-J; Y; Z) Direct tuition funding is relief encompassed by the equitable remedial powers inherent in the IDEA. See, e.g., Mr. and Mrs. A. v. New York City Dep’t of Educ., 769 F. Findings of Fact and Decision
Supp. 2d 403, 406 (S.D.N.Y. 2011). Given my finding that the Private School is the appropriate placement for the Student, the Student is entitled to an award for tuition funding for the Student’s attendance at the Private School between April 24, 2023, and June 30, 2023, to be paid directly to the Private School. See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453-54 (2d Cir.
2013) (“direct payment fits comfortably within the Burlington-Carter framework: like reimbursement, direct payment to the private school that provided the required educational program ‘merely requires [the school district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.’”) (quoting Burlington, 471 U.S. at 370-71).
While the amount of tuition at the Private School is not insignificant, I do not find that the tuition costs are excessive or unreasonable, given the Private School’s educational program for the Student. Carter, 510 U.S. 7, 15-16. After considering the entire record presented at hearing, I find that the equities support the Parent’s claim for direct funding.
OTHER RELIEF SOUGHT
In addition to prospective tuition funding for the Student’s attendance at the Private School, the Parents seek additional relief that I will discuss below.
Compensatory Education
An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the DOE complied with its obligations under the IDEA. Newington, 546 F. 3d at 123. The Southern District recently emphasized that Findings of Fact and Decision appropriate equitable relief can encompass both tuition funding and services such as home-based
ABA. See V.W. v. New York City Dep’t of Ed., 2022 U.S. Dist. LEXIS 147630, *12-13 (S.D.N.Y.
Aug. 17, 2022).
A compensatory education award can be designed using either a “quantitative” or a “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation. Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits). Given the duration of the deprivation and the evidence and testimony in the record, this case lends itself more appropriately towards the qualitative approach.
The testimony of the Parents’ witnesses was credible, well-reasoned, and persuasive, and as a whole, supports the Parents’ position. The Student needed not only an appropriate school placement, but also 10 hours per week of at-home ABA, one hour per week of BCBA supervision, and 4 hours per month of BCBA PCAT to be put in the position the Student would have been in if the DOE had lived up to its obligations under the IDEA and the prior FOFD and placed the Student in an NPS and refrained from ending the Student’s at-home ABA services on February 3, 2023. Newington, 546 F. 3d at 123. The BCBA testified credibly and persuasively about the role of the Student’s home-based ABA in the Student’s education. (P-W, ¶ 44-52)
The BCBA testified that the Student is making progress with home-based ABA in expressive language skills, self-regulation skills, social skills, and receptive language, and has also been successfully increasing the amount of time the Student is regulated. (P-W, ¶¶ 44, 46) The BCBA also testified that the at-home ABA targets the Student’s maladaptive behaviors “for Findings of Fact and Decision extinction and replacement. By targeting these interfering behaviors, [the Student] is more available at school for learning.” (P-W, ¶ 45)
The BCBA also testified about the need for the Student to receive at-home ABA in addition to the ABA instruction the Student receives at the Private School. The BCBA said:
[The Student] requires a wrap-around program inclusive of specialized school-based services at [the Private School] and a home-based ABA program. In my clinical opinion, [the Student] requires, this wrap-around program to make appropriate progress. This is the result of [the Student] being able to practice the same skills in each setting, which is an important element to ensure consistency so that [the Student] can solidify the mastery of these skills. Additionally, the home based program prevents regression in the school setting.
(P-W, ¶ 47)
The DOE presented no explanation regarding why the October 3, 2022 IEP’s recommendation for ABA therapy for the student for 10 hours per week in the Student’s home; BCBA supervision for 1 hour per week; push-in ABA therapy in the Student’s classroom for 30 hours per week; push-in BCBA supervision in the Student’s school for one hour per week; and
BCBA PCAT 4 hours per month stopped on February 3, 2023. Although the Student continued to receive these services between February 3, 2023, and June 30, 2023, the Parents had to use hours of compensatory relief that had already been provided to the Student as part of the September 17, 2022 decision to ensure the Student would receive the services. (Tr. 41-43; 7/14/2023, pp. 7-9)
The BCBA’s testimony regarding her agency and its rates was reasonable. (P-W, ¶ 54-
55) Generally, the reasoning behind the relief requested by the Parents is all clearly explained in the Parents’ evidence. Accordingly, I will grant the Parents the relief they seek and order the DOE to provide 21 weeks of 10 hours of at-home ABA therapy; 1 hour per week of BCBA supervision; and 4 hours per month of BCBA PCAT.
Findings of Fact and Decision
New IEP Meeting
The Parents also seek an order directing the CSE to reconvene and develop an IEP containing a “specifically narrowly tailored program to address [the Student’s] individual needs, which incorporates the specific recommendations of the independent evaluators, namely [the
BCBA].” (P-A, p. 14; 7/14/23 Tr., p. 4) Notably, the Parents’ request for this relief in their due process complaints specifically asks that I order the CSE to “develop an IEP for 2022-2023.” (P-A, p. 14)
The Parents’ due process complaint sought relief based on the DOE’s failure to implement the Student’s October 3, 2022 IEP, and more generally sought relief based on the Student’s 2022-2023 school year. (P-A, D) The 2022-2023 12-month school year has now ended. Although IHOs have broad jurisdiction to grant any relief necessary, including compensatory education, to ensure that a child receives FAPE, it would be beyond my jurisdiction to order the DOE to reconvene and recommend a particular placement and program for the Student, given that such an order would go beyond what is necessary to provide the Student with relief for the 2022-2023 school year. See Letter to Kohn, 17 IDELR 522 (OSEP
1991); Letter to Siegel, 33 IDELR 275 (OSEP 2000).
Transportation
The IDEA requires that a school district must provide transportation for a child with a disability if that service is necessary for a disabled child ‘to benefit from special education.”
Donald B. v. Board of Sch. Comm’rs, 117 F.3d 1371, 1374 (11th Cir. 1997) (citing 20 U.S.C. § 1401(a)(17); see also N.Y. Educ. Law §§ 4401(4), 4402(4)(d). Transportation may be deemed necessary “if in its absence a disabled child in private school would be denied ‘a genuine opportunity for equitable participation in [a special education program]’, . . . or special education Findings of Fact and Decision program benefits “comparable in quality, scope, and opportunity for participation . . . [to those provided for] students enrolled in public schools’” Donald B., 117 F.3d at 1375 (internal citations omitted).
In addition, New York law defines special education as “specially designed instruction . .
. and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” Education Law §§ 4401(1), 4402(4)(a); see also Education Law § 4401(2); 8 N.Y.C.R.R. § 200.1(ww).
The due process complaint seeks funding for the Student’s placement at the Private School for the 2022-2023 school year and transportation to and from this placement. As I am finding the Private School to be the appropriate placement, I will order that the DOE provide the Student with transportation to and from the Private School for the 2022-2023 school year.
Attorneys’ Fees
The Parents also requested attorneys’ fees and expenses in the Parents’ due process complaint. (P-A, p. 15) The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction. 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington
Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006). Only a court can determine if a party is entitled to attorneys’ fees and I would be exceeding the scope of my authority by determining that the Parents are the prevailing party entitled to costs. Therefore, to the extent that the Parents are seeking reimbursement and/or payment of attorneys’ fees and costs, the Parents’ request is denied.
Findings of Fact and Decision
I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parents’ remaining claims not discussed herein are dismissed with prejudice.
ORDER
Based above the above findings of fact, it is hereby:
1. ORDERED, that the DOE shall directly fund the Private School for the Student’s attendance at the Private School from April 24, 2023, through June 30, 2023, in the amount of $65,836.00 within 15 days; and it is further
2. ORDERED, that the DOE shall directly fund the Student’s round-trip transportation to and from the Private School for the 2022-2023 school year, within 15 days’ receipt of appropriate receipts/invoices; and it is further
3. ORDERED, that the DOE shall fund the following compensatory services, with qualified providers of the Parents’ choosing, to be used within three years of this order:
a. 210 hours of ABA therapy, at the rate of $150.00 per hour,
b. 21 hours of BCBA supervision, at the rate of $200.00 per hour, and
c. 21 hours of BCBA PCAT, at the rate of $200.00 per hour. SO ORDERED. DATED: July 21, 2023
Michele Host (signed electronically)
Impartial Hearing Officer
Michele Host Findings of Fact and Decision
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.
Findings of Fact and Decision
APPENDIX A – ADMITTED EXHIBITS
DISTRICT’S EVIDENCE
Exhibit Title Date Pages
NONE
PARENTS’ EVIDENCE
Exhibit Title Date Pages P-A Demand for Due Process Hearing 4/24/23 16 P-B Ten-Day Notice 3/29/2023 12 P-C /17/2022 28 P-D Individualized Education Program 10/3/2023 25 P-E Email from District’s CBST Unit 11/4/2022 2 P-F Education Referral Response Form 1 10/27/2022 1 P-G Education Referral Response Form 2 10/27/2022 1 P-H Private School: Program Description Undated 6 P-I Private School Acceptance Letter 3/13/2023 1 P-J Private School Enrollment Contract 3/24/2023 1 P-K Affidavit of Director of Education 5/5/2023 4 P-L FBA/BIP January 2023 9 P-M Autism Skills Assessment 4/24/2022 16 P-N Neuropsychological Evaluation 4/10/2022 32 P-O Speech/Language Evaluation 5/5/2022 15 P-P Occupational Therapy Evaluation 5/5/2022 8 P-Q Physical Therapy Evaluation 5/5/2022 5 P-R OT Sensori-Motor Evaluation 3/28/2022 & 35
4/07/2022 P-S Auditory Processing Evaluation 3/18/2022 9 P-T NYC DOE Promotion in Doubt Letter 2/8/22 1 P-U Affidavit of Dr. Psychologist 6/16/2023 5 P-V Curriculum Vitae of Psychologist Undated 2 P-W Affidavit of BCBA 6/22/2023 14 P-X Resume of BCBA Undated 3 P-Y Private School Costs 2022-2023 Undated 1 P-Z Affidavit of Mother 6/23/2023 7 P-AA Affidavit 2 of Director of Education 6/27/2023 7
IMPARTIAL HEARING OFFICER’S EVIDENCE
Exhibit Title Date Pages
NONE
Footnotes
[1] In the Parents’ due process complaint, the Parents requested direct payment to the Private School for the cost of the Student’s meals. (P-A, pp. 14-16) Parents’ Counsel withdrew that request on the record at the hearing. (Tr. 17)
[2] The Parents’ exhibits are cited as “P” followed by a letter. The transcript for the first date of hearing is cited as “Tr.” followed by a page number, and the transcript for the second day of hearing is cited as “7/14/2023” followed by a page number.
[3] NYC Exec. Order No. 20 (June 24, 2022), www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504-delegation-Signed.pdf.