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Case Number: 599128 – NYC: 247931
FINDINGS OF FACT AND DECISION
Case Number: 247931
Student’s Name: [REDACTED] (Student)
Date of Birth: [REDACTED]
School District: New York City Department of Education (District)
Hearing Requested by: [REDACTED] (Parent)
Request Date/Date Complaint Filed: 5/3/2023
Dates of Hearing: 09/13/2023
Actual Record Close Date: 10/10/2023
Date of Decision: 10/10/2023
Date of Distribution: 10/10/2023
Time Sensitive: Yes ☐ No ☒
Impartial Hearing Officer: Teresa R. Nuccio, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 09/14/2023
For the Student
• [REDACTED], Esq., Attorney for Petitioner
• [REDACTED], Parent (Parent)
• [REDACTED], Licensed Physical Therapist (LPT)
• [REDACTED], Board Certified Behavior Analyst (BCBA-D)
• [REDACTED], Clinical Psychologist (Psychologist)
• [REDACTED], BCBA/Director (BCBA) of [REDACTED] (Private School)
For the New York City Department of Education
• [REDACTED], Esq
OATH IHOs Observing:
Danielle Silas
Jaime Kotchek
Catina Venning
INTRODUCTION
The parents filed a Due Process Complaint (DPC) against the district on 05/03/2023.[1] The DPC alleges violations of the Individuals with Disabilities Education Act (IDEA) and the New York State Education Law, [2] resulting in the denial of a free appropriate public education (FAPE) for the 2020-2021, 2021-2022, and 2022-2023 school years.[3]
JURISDICTION
This due process hearing was held, and a decision is being rendered pursuant to the Individuals with Disabilities Education Act, § 504 of the Rehabilitation and New York State Education Law.[4] The undersigned Impartial Hearing Officer (IHO) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (OATH), and meets all the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. I was appointed to hear this matter on 05/04/2023.
PROCEDURAL HISTORY
The DPC requested an interim order for the district to fund the following Independent Educational Evaluations (IEEs) by evaluators of the Parents’ choosing at the individual providers’ normal and customary rates: [5]
a) Speech and Language Evaluation (SL/IEE).
b) Feeding and Swallowing Evaluation (FS/IEE).
c) Physical Therapy Evaluation, including an APE component.
d) Occupational Therapy Evaluation (PT-APE/IEE).
e) Functional Behavior Assessment (FBA) and corresponding Behavior Intervention Plan (BIP).
Therefore, an initial conference was held virtually on 06/05/2023 via WebEx. Each party was represented by an attorney. As to the IEE requests, the tribunal issued an interim order memorializing the parties’ agreement setting a schedule to submit written briefs instead of oral argument and a hearing..[6] By a decision dated 06/29/2023, the parents’ requests for the speech-language (SL) and occupational therapy (OT) evaluations were granted, but the requests for an FBA and BIP, FS/IEE, and PT-APE/IEE were denied. [7]
On 08/04/2023, a prehearing conference was held, and the parties agreed to conduct the due process hearing on 09/14/2023.[8] Per the prehearing conference order (PHCO), [9] the district timely served a motion to dismiss the DPC based on the statute of limitations. By an order dated 08/29/2023, the motion was denied without prejudice and with leave to renew after a full hearing on the merits. [10]
All parties appeared for the due process hearing on 09/14/2023. The parties’ respective exhibits were admitted into evidence without objection.[11] The district presented an opening statement, [12] rested on the documentary evidence as to Prongs I and III, [13] and did not present rebuttal evidence on Prong II. The parent submitted a written opening statement.[14] The parent called four witnesses: (1) the parent, (2) BCBA-D, who evaluated the student in May 2022, (3) BCBA/Director of the private school, and (4) the psychologist who conducted the neuropsychological IEE in 2021. The district cross-examined the witnesses, and the tribunal asked clarifying questions.[15] The district requested and was granted the opportunity to submit a written closing argument.[16] The parent presented a closing argument on the record [17] and reserved the right to serve a supplemental written closing argument, if necessary, once she received the district’s written submission. [18]
A request for an extension of the compliance date was granted.
ISSUES
1) Did the district deny the student a FAPE for the 2020/2021, 2021/2022, and 2022/2023 school years?
2) Are the parent’s claims for the 2020/2021 [19] and 2021/2022 school years barred by the statute of limitations?
3) Is the private school the appropriate placement for the student for the 2022/2023 school year?
4) Do the equities favor the parent for an award of tuition reimbursement for the 2022/2023 school year?
5) Is the student entitled to compensatory education for the 2020/2021, 2021/2022 and 2022/2023 school years?
6) Is the parent entitled to a Feeding and Swallowing IEE and Physical Therapy with adaptive physical education IEE?
Based on the totality of the evidence, the tribunal finds that (1) the district denied the student a FAPE for all school years at issue, (2) the statute of limitations does not bar the claims for the 2020/2021 and 2021/2022 school years, (3) the private school was the appropriate placement for the student for the 2022/2023 school year, (4) the equities favor the parent, (5) the student is entitled to compensatory education services, and (6) the FS/IEE and PT-APE/IEE are warranted. [20]
FINDINGS OF FACT
Upon considering the evidence, including all admitted documents and the testimonies of the witnesses, the tribunal has found the evidence relevant and representative of the facts for which they were offered. The weight afforded will be reflected in the analysis. As for the witnesses, there is no reason to doubt the veracity of their statements or the earnestness of their relevant opinions. Therefore, the tribunal finds the witnesses and their respective testimonies credible.
Accordingly, based on all the documentary and testimonial evidence and the oral and written arguments of counsel, the tribunal makes the following findings of fact:
The procedural history of the IEPs, IEEs, and Parent Cooperation.
The parent attended a three-year mandated IEP review meeting (triennial) on 01/28/2021.[21] The IEP developed by the Committee on Special Education (CSE) has an implementation date of 02/11/2021.[22] The parent agreed with the recommendations because she could provide direct 1:1 assistance to the student during remote instruction imposed by COVID-19 pandemic restrictions.[23] This 1:1 assistance was necessary because the student engaged in the following:
(i) elopement; (ii)repeated flopping to the floor; (iii) echolalia; and self-injurious behavior, such as hitting his head on hard surfaces (floors, walls, and furniture) and hitting himself in the face with his hands.[24] The parent testified that it was not until 03/22/2021 that she received a copy of only the IEP.[25] The district did not offer rebuttal evidence that the PWN was provided with the IEP on 03/22/2021 or cross-examine the parent on this issue. It is noted that although the related service providers submitted progress reports, [26] the CSE did not rely upon these documents when making their final recommendations. [27]
The parent first learned of ABA therapy when she received an advertisement flyer through her employer. In March 2021, the parent researched ABA providers online and learned of the BCBA-D’s agency but was unaware that educational-based ABA could be provided as part of his IEP program.[28] The parent notified the school of her efforts to obtain this [medical-based] therapy to address the behaviors that were impeding the student’s learning, but the school stated that they were not familiar with such services.[29] The BCBA-D’s agency accepted the parent’s health insurance[30] and worked with the student between 05/22/2021 and 06/13/2021. This was when the parent first learned about the additional need for ABA academic instruction in school to manage behaviors within the classroom environment, assessments, and a FBA, together with a BIP, to identify and address the student’s needs as part of the student’s educational program. [31]
In July 2021, the parent requested an AT/IEE by email due to concerns “about the regression in his language and speech over the past several years. I am seeking to obtain an AAC device for him to facilitate language acquisition and to provide him with the means of communicating his needs and wants at home and in other settings.” [32] The parent renewed this request in September 2021 and informed the school that the BCBA-D was recommending the AT/IEE. Further, the parent was seeking “all speech sessions [the student] has missed in the past” as calculated by the speech therapist. She was also following up on the representations by the school during the summer that the AT evaluation would be available in September.[33] The district did not cross-examine the parent as to the nature and duration of the parent’s communications with the SL therapist before she sent the email to the school.
Also, in July 2021, the parent requested SL therapy at home and forwarded the BCBA-D’s contact information to the assistant principal.[34] In August 2021, the parent emailed the assistant principal once again, I am requesting a crisis Para to be assigned to [the student] upon the first day of returning to school. One, he [ ] is a flight risk, [the teacher] noted in his IEP that he frequently bolts out of the classroom. She indicated he is fast and does not exhibit any fears. In addition, he is anaphylactic to nuts and fish. A staff member needs to be with him that carries an Epi-Pen with him at all times. In addition, I request a bus para owing to his severe flight risk, for which he needs someone to be with him at all times. [The student] should be picked up from in front of the home and not down the block. Thank you. [35]
Starting in November 2021, the district conducted the AT/IEE and a Neuropsychological IEE F (Neuro/IEE).[36] The AT/IEE assessments were conducted on 11/23/2021, 01/13/2022, and 01/27/2022. The Neuro/IEE evaluations were conducted on 01/18/2022, 01/30/2022, 02/17/2022, 03/7/2022, and 03/22/2022.[37]
Despite concluding the evaluations in March 2022, the IEP team did not convene until 06/21/2022,[38] five months after the annual review was due on 01/28/2022.[39] The IEP recommended that despite the student’s significant deficits, he was to participate in the same State and district-wide assessments as general education students.[40] Further, the IEP (a) did not incorporate any of the recommendations of the psychologist, (b) continued the student’s 12-month educational placement in an 8:1:1 class in a District 75 school, or (c) did not refer the student to the Central Based Support Team (CBST) to place the student in an approved nonpublic school that “specializes in the education of children with autism and can provide [student] with a small student-to-staff ratio, a multisensory program, evidence-based methodologies such as Applied Behavior Analysis (ABA), and intensive one-to-one instruction.”[41] The student attended the recommended placement from 7/2022 until 12/2022. On 12/15/2022, the parent served by email[42] a Ten Day Notice (TDN) advising the district that the June 2022 IEP did not offer the student an appropriate program and placement, and the student was still not progressing. [43] Therefore, the parent notified the district of her intention to unilaterally place the student in a private school.
Before serving the Ten-Day Notice, the parents requested that the district fund a PT-APE/IEE) on 07/15/2022.[44] This request was based on (a) the recommendations in the Neuro IEE and (b) that the 2022 annual review of the student was “insufficient.”[45] The 07/15/2022 letter also requested an Independent FBA and BIP to address dangerous and maladaptive behaviors engaged in by the student that the district’s evaluator did not properly assess.[46] Receiving no response, the parents renewed these requests on 04/04/2023 and added three more– a SL/IEE, OT/IEE, and F/IEE.[47] The district did not respond to these subsequent requests.
The SL/IEE evaluation ordered by this tribunal was conducted on 07/19/2023, and the report is dated 08/01/2023.[48] The OT/IEE evaluation was conducted on 07/15/2023, and the report is dated 07/25/2023.[49]
It was not until 11/08/2021 that an FBA was conducted and it was not implemented until 06/22/2022 – at the end of the 2021/2022 school year.[50] The FBA failed to address the student’s maladaptive behaviors that impeded the student’s learning, such as “flopping to the floor, scripting, whining, crying, climbing on furniture, and screaming.”[51] The CSE did not incorporate the BCBA-D’s and psychologist’s recommendations despite the student's history.[52] On 06/21/2022, the in-school paraprofessional was finally recommended nearly one year after the BCBA-D’s evaluation. Still, the student has not been provided with one for the bus to address his allergies and maladaptive behaviors.[53]
Based on this sequence of events, the tribunal finds that the parent made every effort to work with the district to have the student sufficiently evaluated and obtain the appropriate educational support to enable the student to make reasonable progress before deciding to place him in private school unilaterally.
The ABA Evaluation.
(i) Background.
When the DPC was filed, the student was a [REDACTED]-year-old student diagnosed and classified with autism. The student is easily distracted and struggles with impulsiveness, transitioning, and effectively communicating his needs.[54] On or about 01/28/2021, the CSE determined that the student did not need a BIP even though he would climb on the furniture and engage in self-injurious, self-directed, and elopement behaviors.
The CSE also failed to recommend assistive technology (AT) even though the student was minimally verbal, speaking in “[two to four word] utterances to request, comment, protest and response to questions,” as documented by the speech-language (SL) provider’s progress report.[55] This report documented that the student was difficult to engage and required multiple redirections to attend to non-preferred activities.[56] The SL provider set an annual goal for the student to speak in “[four to five] word utterances to ask/respond to a question, comment or describe with 80% accuracy given moderate verbal prompts in 4 out of 5 opportunities.” [57]
(ii) Testimony and Documentary Evidence
The BCBA-D testified that she evaluated the student, created a BIP, and developed an ABA treatment request recommending that he receive the services in school.[58] Unlike academic therapy, medical ABA therapy is home and community-based, which (a) focuses on generalizing communication skills with family members, siblings, and peers and (b) addresses maladaptive behaviors such as aggression towards others, property destruction, self-injurious behavior, and avoidance tactics when asked to do non-preferred tasks such as washing his hands.[59] The medical-based services are not provided within or focused on the academic environment.
The BCBA-D reported that the student does not make eye contact, demonstrates echolalia, and engages in aggressive, restrictive, and repetitive behavior patterns. Additionally, the student presents with deficits in a) social-emotional reciprocity, b) using language to “mand” (request) items, c) developing, maintaining, and understanding relationships, and d) responding to his name.[60] She also observed that the student presents with no functional language and extremely low visual perceptual skills.[61] The BCBA-D testified that the inability to communicate his needs was of particular concern because he had difficulty communicating with others about his severe allergies.[62] In August 2021, the parent and the BCBA-D provided this information to the assistant principal but received no response.[63] To address the student’s inability to communicate his need for an EpiPen and elopement behavior, [64] the parent requested (a) an in-school paraprofessional[65] and (b) a medical accommodation for a bus paraprofessional.[66] These concerns were previously discussed with the student’s teacher. [67]
The BCBA-D testified that while attending the public school, the student continued “to engage in behaviors in school that had been extinguished at home with ABA, such as self-injurious and eloping behaviors.”[68] This is corroborated by the parent’s testimony that the student improved his behaviors with the medical-based, at-home ABA therapy.[69] The maladaptive behaviors decreased in school once he was placed in the private school with full-day ABA services.[70] The ABA therapy makes the student “available to learn” and “happy to earn preferred items and activities utilizing a token economy.”[71] Without the ABA therapy, the student regresses, i.e., the maladaptive behaviors return, and his communication and social skills diminish.[72]
The Neuropsychological Evaluation.
The psychologist evaluated the student in his home in the presence of his mother and ABA therapist. She observed mild episodes of self-stimulating behavior, but the therapist re-directed him, minimizing the maladaptive and interfering behavior.[73] The student’s present level of performance in the areas of communication, socialization, and the ability to independently complete activities of daily living is in the <1 percentile in all three domains. Therefore, he requires substantial support and therapy.[74] Based on this score (<1 percentile), this eight-year-old student is functioning at an 18-month to two-year-old level. [75]
Next, the psychologist testified that the student was functioning at a three-year-old level and was “untestable” in other areas, including executive function and attention, the recognition and naming of facial emotions, and memory and learning. [76] She recommended a specialized and homogenously small-grouped education program for “bright children with severe ASD [77] symptomatology” because despite his low levels of functioning, the student’s reasoning skills, in isolation, are functioning in the 98th to 99th percentile. This is the equivalent of a 16-year-old student.[78] Based on this unique learning profile with wide variability, the student requires prompting and facilitation by a dedicated adult trained in ABA.[79] The psychologist concurred with the speech-language pathologist that the student requires a comprehensive feeding evaluation to assess his oral motor skills and suspected sensory-based feeding disorder, which can adversely impact the ability to integrate speech with mouth and throat movements. [80]
The Private School
The BCBA/Director of the private school testified that she is a certified special education teacher, birth through grade 6, and a licensed behavior analyst (LBA). She has been employed by the private school since 2010 and assumed the director position in 2022.[81] As director, her duties include overseeing the student’s assessments, goals and program development, and progress throughout the school year. Additionally, the BCBA/Director conducts FBAs, creates BIPs, provides ongoing staff training, and oversees the lead teachers and classroom supervisors.[82] Before her employment with the private school, the BCBA/Director had a diverse background, which includes (a) teaching in self-contained, inclusion, and ABA classrooms and (b) working with students in home-based ABA programs. She has worked with students from ages four through 18. [83]
The private school serves students with ASD and related disabilities who require highly individualized ABA programs on a 1:1 basis, targeting their academic, behavioral, and social needs while incorporating related services throughout the day. [84] The private school supports the student’s family to ensure consistency between home and school by providing the parents with parent education workshops once per month, classroom observations one hour per week, and home visits twice a year.[85] The student’s parent attends a clinical team meeting every eight weeks to review his progress and behavior at school and receives daily updates by email, notes and phone.[86] The private school is ungraded and chartered by the State of New York. The student is alternatively assessed with the Assessment of Functional Living Skills and daily data collection. [87]
The BCBA/Director has personal knowledge of the student’s progress in all domains.[88] His day consists of five hours of 1:1 individualized instruction utilizing ABA methodology and one hour per day of 2:1 ratio during “instructional lunch and leisure skills.”[89] The student’s teacher for the 2022/2023 school holds a Master of Science Degree in Applied Behavior Analysis and Autism, and the five ABA instructors in the classroom hold bachelor’s degrees in related fields, including psychology and early childhood education.[90] The private school has allowed the student to make meaningful progress in his self-management, social, communication, and academic skills. The private school has addressed and decreased the student’s elopement behaviors through Functional Communication Training, Response Blocking, and Learn Units to Teach Self-Management Skills, as well as his maladaptive behaviors, by collecting data with the Functional Assessment Screening Tool and creating a corresponding BIP.[91] The student receives all related services from the staff providers at the private school. [92]
CONCLUSIONS OF LAW & ANALYSIS
Statute of Limitations
The IDEA and New York State [93] provide an opportunity for any party to present a complaint related to the identification, evaluation, or educational placement of a child or the provision of FAPE that occurred not more than two years before the date the parent or public agency “knew or should have known about the alleged action that forms the basis of the complaint.”[94] It is well settled that the date when the parent knew or should have known about the claim is a “fact-specific inquiry.” [95] Here, the parent could not have known that the 2020/2021 and 2021/2022 IEPs were deficient due to the COVID-19 pandemic. The student was receiving home remote instruction. Moreover, the parent was also unaware that ABA therapy was a service that could address the student’s behavioral needs until March 2021. [96]
I find the parent’s testimony and evidence credible since she has made the concession that her claims for the 2020/2021 school year should be limited to the period of May 3, 2021, through June 2021 – two years before the filing of the DPC –which is when the parent started consulting with the BCBA-D and fully understood the importance of ABA therapy. The statute of limitations was tolled until the discovery date in and about 05/22/2021.[97] Additionally, the statute of limitations was also tolled since the parent did not know that the 01/28/2021 IEP was deficient until the 06/21/2022 IEP documented the student’s regression to a kindergarten/early first-grade level in reading and math from a second/third-grade level. It is also noted that the district did not present evidence that the parent was provided with procedural safeguards.
Accordingly, the tribunal holds that the parent was unaware that causes of action existed for the 2020/2021 and 2021/2022 school years when the 01/28/2021 IEP was created. The district’s motion to dismiss these causes of action based on the statute of limitations is denied.
Burdens of Proof, Persuasion, and Production
The mechanics of decisions in tuition reimbursement and direct funding cases have evolved from the two United States Supreme Court cases of Sch. Comm. of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359 (1985) and Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), which have morphed into the “three-prong” analytical framework that has come to be known as the “Burlington/Carter” test or analysis. When considering an award for tuition reimbursement and funding in favor of the parents, a tribunal must use this framework to determine that (1) the school district’s proposed placement was inadequate or inappropriate, (2) the parent’s alternative private placement is appropriate to meet the student’s needs, and (3) the equitable considerations support the claim.
The school district carries the burden of proof, including the burdens of persuasion and production, in due process hearings commenced under the IDEA, except in cases where the parent is seeking tuition reimbursement and direct funding for a unilateral placement. In the latter scenario, the parent or guardian only has the burdens of persuasion and production on the appropriateness of such placement (Prong II).[98] The party who carries the burden must establish an entitlement to a judgment in their favor by a preponderance of the evidence, [99] i.e., evidence that is of greater weight or more convincing than the evidence offered in opposition thereto. [100]
To meet its burden of proof that the student was provided with a FAPE, the school district must offer a “cogent and responsive explanation for their decision that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”[101] Moreover, it is the district’s burden “to demonstrate which evaluative materials were reviewed during each CSE meeting in reaching the terms of the IEP[s].”[102] Otherwise, a tribunal is
…left to speculate many months... many years, later as to how the CSE reached the terms of the child's IEP (i.e., which, if any, evaluative materials the CSE actually considered). The resulting implication of this procedural violation is that it provides the reviewing authority with almost unfettered discretion, as it combs through the evaluative materials generated at the time the IEP was formulated, to match terms of the IEP to any assertion contained in any existing document, irrespective of whether it was actually viewed and considered by the CSE or even in possession of the CSE at the time of the meeting. [103]
This is impermissible because “it permits the reviewing body to offer post hoc rationalizations for how the CSE reached its conclusions and refer to documents that may or may not have been in possession of the CSE at the time of the meeting.” [104] Here, the district failed to offer a cogent and responsive explanation for the IEP program and placement recommendations, as well as their decisions regarding IEEs through witness testimony to (a) meet its burden of proof on Prongs I and III and (b) rebut the parent’s Prong II case. The district did not offer evidence of the sending of the PWNs associated with the 01/28/2023 or 06/21/2022 IEP to the parents.[105]
As to compensatory education services, the district did not offer witness testimony or documentary evidence that the student was provided with either the Special Education Recovery Services agreed to on 10/22/2021 [106] or the missed hours as calculated by the SL therapist. Therefore, the parent’s request for these services is uncontested. Likewise, the district did not rebut the parent’s evidence regarding the student’s need for in-school ABA services, OT services stemming from the CSE’s failure to recommend such services in the 1/28/2021 IEP, or the need for compensatory PCAT services.
The district’s argument that it met its burden on the documentary evidence is without legal or factual merit.
Prong I – Free and Appropriate Public Education
The purpose of the IDEA[107] is to provide a FAPE tailored to the unique needs of the handicapped student through an IEP.[108] A tailored FAPE consists of specifically designed instruction that must meet the child’s unique needs in all educational aspects during classroom instruction[109] and prepare them for further education, employment, and independent living.[110] This includes personalized instruction with sufficient related and other supportive services to assist the student in benefiting from special education to derive an educational benefit, achieve passing marks, and advance grade to grade.[111] This personalized instruction must also “be appropriately ambitious in light of [the student’s] circumstances”[112] to (a) “enable the student to be involved in and make progress in the general education curriculum”[113] and (b) open the door of public education to a disabled child in a meaningful way such that it is likely to produce progress, “not regression,”[114] or only “trivial advancement.” [115] To satisfy its obligations under the IDEA, the local school districts must implement extensive procedural requirements to protect the rights of the parents and student, including the right (a) to be notified of a change in the student’s educational placement or the provision of a free appropriate public education, [116] and (b) to be provided with “a large measure of participation at every stage of the administrative process.”[117] In sum, a tribunal must conduct a two-prong analysis, i.e., whether (a) the school district complied with the procedural requirements in the IDEA and (b) the IEP as developed is reasonably calculated to enable the child to receive educational benefits. [118]
Concerning the end of the 2020/2021 school year and the entire 2021/2022 school year, the evidence establishes that the student regressed an entire grade level, constituting a denial of FAPE. Therefore, based on the student’s cognitive and behavioral deficits, a history of self-injurious and aggressive behavior, and regression,[119] the 06/21/2022 recommendation by the district to continue the 8:1:1 placement and disregard the BCBA-D and psychologist’s recommendations also constituted a denial of FAPE for the 2022/2023 school year.[120] Further, the district did not offer documentary evidence or witness testimony to rebut the parent’s Ten-Day Notice that as of 12/2022, the student still failed to progress in the 06/21/2022 recommended placement.[121] The district did not establish through witness testimony that the recommended school could implement the 06/21/2022 IEP, and had he remained in the school, the student would make progress, rather than continue to regress.[122]
The tribunal holds that the district’s failure to (a) create appropriate IEPs, (b) provide ABA academic and multisensory instruction, (c) provide a paraprofessional in school and on the bus, (d) perform the requested IEEs, and (e) offer an appropriate school placement with a small class ratio, constitutes a denial of FAPE to the student for the 2020/2021, 2021/2022 and 2022/2023 school years.[123] The tribunal also finds that the failure to incorporate the recommendations of the BCBA-D and psychologist denied the parent meaningful participation in the education process. [124]
Prong II – Appropriate Unilateral Placement
The parents have the burden to establish by a preponderance of the evidence[125] that the chosen unilateral placement is appropriate, i.e., that it provides educational instruction specifically designed to meet the student’s unique special education needs.[126] However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.”[127] The parents must demonstrate that the private school placement is reasonably calculated to enable the child to receive educational benefits to likely produce progress, not regression.[128]
Therefore, “[n]o 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 prove that a child is receiving an educational benefit. Still, courts assessing the propriety of a unilateral placement must 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.” [129] Here, the (i) five hours of 1:1 individualized instruction utilizing ABA methodology, (ii) one hour per day of 2:1 student-to-teacher ratio during “instructional lunch and leisure skills,”[130] and (iii) the student’s demonstrated progress in all domains establishes that the private school offers the student a FAPE consisting of specifically designed instruction tailored to the student’s unique academic, cognitive and social-emotional needs.[131] The private school employs teachers with degrees in applied behavioral analysis, psychology, and early childhood education, which address the student’s needs.[132] This method of instruction has allowed the student to make demonstrated progress in all domains and toward maximizing his potential. [133]
Prong III – Equities (Tuition Reimbursement)
Once the parent establishes the appropriateness of the unilateral placement, "the courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant."[134] In making that equitable determination, a hearing officer may consider many factors, i.e., a) whether a parent’s unilateral withdrawal of the student from the public school was justified[135] and with adequate notice to the district, [136]
b) whether the amount of private school tuition was reasonable, c) whether a parent availed themselves of need-based scholarships or other financial aid from the private school and d) whether there was any fraud or collusion in generating/inflating the tuition to be charged to a district, or the arrangement with the private school was fraudulent or collusive in any other respect. [137]
In New York, the district must prove that the equities do not favor the parent.[138] Still, the parents must identify the specific remedy they seek so that the tribunal can craft an appropriate award.[139] The need to specify a remedy is akin to a pleading requirement to provide the district with fair notice of the claim and an opportunity to prepare a defense.[140] If the district meets this burden, the burden of proof does not shift to the parent. However, absent rebuttal evidence by the parent, the hearing officer will be constrained to find for the district.
After considering the relevant equitable factors and without evidence to the contrary, the tribunal holds that (a) the parent’s unilateral withdrawal of the student from the public school was justified[141] and with adequate notice to the district, [142]
b) $90,615.99 for the private school tuition is reasonable, c) need-based scholarships or other financial aid from the private school were not available and d) there is no fraud or collusion in generating/inflating the tuition to be charged to a district, or the arrangement with the private school was fraudulent or collusive in any other respect.[143] The parent assumed the unconditional obligation to pay the tuition, [144] with the right to a pro-rated refund if she accepted a placement from the district.[145] The parent at all times cooperated with the district, i.e., attending all IEP meetings, providing consent for the evaluations, and placing him in the recommended school before enrolling him in a private school.
IEEs
The legislative intent of the IDEA is to guarantee a "free appropriate public education" (FAPE) to all eligible children with disabilities,” which is comprised of special education and related services, individually tailored to classroom instruction and non-academic support services in school.[146] This is accomplished through an IEP that must include a statement of how the student’s disability affects progress toward their academic and non-academic goals. [147]
The IEP developed must contain, among other things, a statement of the present levels of educational performance of such child.[148] To do so, the school district must conduct a comprehensive initial evaluation of a child with a disability and, similarly, comprehensive reevaluations at least once every three years (“triennial evaluation”), which are used to develop the individualized academic and support services” that the student with a disability receives at school.”[149] Between triennial evaluations, the school district must conduct an annual review to (a) regularly collaborate to develop, maintain, and update the student’s IEP throughout their education and (b) determine whether the student’s annual goals are being achieved. [150]
The IDEA and the implementing regulations grant the student’s parents the right to (a) disagree with the school’s initial and triennial evaluations and (b) receive an IEE at public expense, the results of which must be considered when the school makes decisions relating to the student’s education.[151] This is one of many procedural safeguards that ensure parents’ meaningful participation in the IEP process.[152] Once the parent requests an IEE, the school district “must, without unnecessary delay,” either (a) file a due process complaint to request a hearing for a determination of whether the evaluation is appropriate or (b) conduct the IEE at public expense.[153] The purpose of an IEE is also to provide parents with access to expert evidence without regard to their income.[154] This expert conducting the IEE is “a qualified examiner who is not employed by the public agency responsible for the education of the child in question." [155] The district neither (a) evaluated the student in all areas of suspected disability, [156] (b) followed the procedural guidelines upon receipt of the parent’s requests for IEEs, [157] (c) presented evidence that these IEEs were not procedurally proper or necessary nor (d) rebutted the parent’s evidence demonstrating the need for these IEEs.
The parent has demonstrated the need for the FS/IEE and PT-APE/IEE based on the testimony of the BCBA-D and the psychologist, as well as the SL/IEE and OT/IEE.[158] Therefore, the district shall fund these evaluations, both at reasonable market rates paid by the implementation unit of the District within the last six months, by a provider of the parent’s choosing within 30 days of the date of this order. The district shall fund the cost of round-trip private transportation to and from the IEEs within 30 days of receipt of the invoices from the provider or reimburse the parent for the cost of the transportation upon receipt of proof of payment from the parent.
Finally, the parent’s request for an order directing the district to fund the independent neuropsychological evaluation at the rate of $6,000.00 is granted. Again, if the district disputed the need for the IEE following the student’s triennial evaluation, it was obligated to either pay for the IEE at the requested rate or file a due process complaint.[159] Moreover, the district did not present evidence as to a reasonable rate for the IEE.
Compensatory Education
An appropriate equitable remedy for a denial of a FAPE can include an award of compensatory education.[160] A tribunal is authorized under the IDEA to fashion an appropriate remedy, and the courts have held that compensatory education is an available option to compensate a student for a denial of a FAPE.[161] This remedy may be in various forms of retroactive and prospective equitable relief that requires a school district to fund education “as a remedy for any earlier deprivations in the child's education.”[162] Yet, unlike an IEP that needs only to provide some benefit, compensatory awards must do more, i.e., they must compensate, and thus, tribunals may award educational services to be provided prospectively to compensate for a past deficient program. [163]
Therefore, compensatory education as a remedy is a “replacement of educational services the child should have received in the first place.”[164] Such claims are subject to a two-year statute of limitations measured from when the parent knew or should have known about the alleged actions or violations by the school district, which form the basis of the due process complaint.[165] This approach is known as the “discovery rule” or a “reasonable discovery date.”[166] It was the clear intent of Congress to eschew the occurrence [accrual] rule and have the statute of limitations begin upon the date of discovery. [167]
There are generally two approaches to fashioning a compensatory education award: 1) the “quantitative” approach[168] and 2) the “qualitative” approach.[169] The quantitative approach provides for compensatory education equal to the period of deprivation, whereas the qualitative approach fashions an award based upon 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.” [170] The Second Circuit has generally adopted the practice of leaving “the mechanics of structuring the compensatory education award” to the court’s sound discretion to fashion a relief that is appropriate in light of the purpose of the IDEA without articulating a specific formula or approach.[171] When 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 needs.” Still, 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”[172] and appropriate in light of the purpose of the IDEA. [173]
Under New York law, the district has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award. [174] However, the parent must identify the specific remedy they seek so that the tribunal can craft an appropriate remedy for the years it claims the student was denied a FAPE.[175] This is akin to a pleading requirement to provide the district with fair notice of the claim.[176] The tribunal may order that an award of services be placed in a bank to be used by a specific date to allow flexibility in the implementation. [177]
Based on the student’s functional levels, which vary widely from that of an 18-month child to a 16-year-old teenager, the district shall fund the following qualitative compensatory education services:
1) 3,210 hours of compensatory ABA with a provider of the Parent’s choosing at a rate of $225.00 per hour.
2) 144 hours of compensatory PCAT with a provider of the Parent’s choosing at a rate of $225.00 per hour.
3) 180 hours of compensatory speech-language therapy with a provider of the Parent’s choosing at a rate of $300.00 per hour.
4) 144 hours of compensatory occupational therapy with a provider of the Parent’s choosing at a rate of $300.00 per hour.
5) These hours shall be placed in a non-expiring bank.
6) The cost of transportation for the Parent and Student to and from the compensatory services within 30 days of receipt of the invoices from the private transportation provider or reimburse the parent for the cost of the transportation upon receipt of proof of payment from the parent.
This is a qualitative award based upon the individual assessments and is reasonably calculated to provide the student with the educational benefits he should have received had the district provided the student with these services, together with an appropriate educational placement in the first place.[178] It is well documented that (a) the student did not receive his mandated services during the 2020/2021 school year, [179] (b) the IEEs were not commenced until November 2021, (c) the 2022 annual review was conducted five months late, and (d) the student suffered academic regression. Also, as a result of the delay in conducting the IEEs and the late 2022 annual review, the student’s existing related services were not increased until 06/21/2022 when the 2021/2022 school year ended, and he went without a BIP, OT, AT, and a paraprofessional for that entire school year. [180]
Miscellaneous Relief
For the reasons stated above,
1) The parent’s request for an order directing the district to reconvene the CSE to amend the IEP to include in-home ABA services for the student at a frequency of 15 hours per week is granted.
2) An Order for the Department to reconvene the CSE to amend the IEP to include a bus paraprofessional in the student’s IEP as part of his specialized transportation is granted.
ORDERS
Based upon the foregoing facts and conclusions of law, it is hereby
ORDERED that the respondent/district’s motion to dismiss the DPC as to the 2020/2021 and 2021/2022 school years is DENIED, and it is further
ORDERED that the respondent/district denied the student a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years, and it is further
ORDERED that the private school was the appropriate placement for the student for the 2022-2023 school year, and the petitioner/parent’s request for tuition reimbursement is GRANTED, and it is further
ORDERED that the respondent/district shall retrospectively directly fund the private school tuition and all costs, including transportation, in the amount of $90,615.99 and remit payment to the private school within 35 days of the date of this order, and it is further
ORDERED that petitioner/parent’s request for an order directing the district to fund the independent neuropsychological evaluation at the rate of $6,000.00 is GRANTED and the respondent/district shall remit payment to the provider within 35 days of the date of this order, and it is further
ORDERED that the petitioner/parent’s request for the respondent/district to fund the Feeding and Swallowing IEE and the Physical Therapy with Adaptative Physical Education IEE at market rate by a provider of the parent’s choosing is GRANTED, and it is further
ORDERED that the respondent/district shall fund the Feeding and Swallowing IEE and the Physical Therapy with Adaptative Physical Education IEE at market rate by a provider of the parent’s choosing within 35 days of the date of this order, and it is further
ORDERED that the petitioner/parent’s request for the respondent/district to fund the cost of round-trip transportation to and from the IEEs is GRANTED, and it is further
ORDERED that the respondent/district shall fund the cost of round-trip transportation to and from the IEEs within 35 days of receipt of the invoices from a private transportation provider of the parent’s choosing or reimburse the parent for the cost of the transportation provider upon receipt of proof of payment from the parent, and it is further
ORDERED that the petitioner/parent’s request for an order directing the respondent/district to reconvene the CSE to include in the student’s IEP in-home ABA services at a frequency of 15 hours per week is GRANTED, and it is further.
ORDERED that the petitioner/parent’s request for an order directing the respondent/district to reconvene the CSE to include in the student’s IEP a bus paraprofessional as part of his specialized transportation is GRANTED, and it is further
ORDERED that the respondent/district shall reconvene the CSE within 35 days of this order, and it is further
ORDERED that the respondent/district shall fund the following compensatory education services:
1) 3,210 hours of compensatory ABA with a provider of the parent’s choosing at a rate of $225.00 per hour.
2) 144 hours of compensatory PCAT with a provider of the parent’s choosing at a rate of $225.00 per hour.
3) 180 hours of compensatory speech-language therapy with a provider of the Parent’s choosing at a rate of $300.00 per hour.
4) 144 hours of compensatory occupational therapy with a provider of the Parent’s choosing at a rate of $300.00 per hour.
5) These hours shall be placed in a non-expiring bank.
6) The cost of transportation for the Parent and Student to and from the compensatory services within 30 days of receipt of the invoices from a private transportation provider of the parent’s choosing or reimburse the parent for the cost of the transportation upon receipt of proof of payment from the parent.
Dated: October 10, 2023
SO ORDERED:
Teresa R. Nuccio, Esq.
Impartial Hearing Officer
(Digitally Signed)
_____________________
Teresa R. Nuccio, Esq.
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 proceedings before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
APPENDIX A – REDACTION IDENTIFICATION PAGE
Student’s Name: [REDACTED]
Date of Birth: [REDACTED]
School District: New York City Department of Education
Parent[s] Name[s]: [REDACTED]
BCBA-D: [REDACTED]
BCBA/Director: [REDACTED]
Private School: [REDACTED]
Psychologist: [REDACTED]
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
District Exhibits
1. Individualized Education Program (IEP) (02/26/2020; 33 pages)
2. Special Education Remote Learning Plan (05/04/2020; 3 pages)
3. Occupational and Physical Therapy Clinical Guide (06/26/2020; 2 pages)
4. Special Education Program Adaptations Documents (PAD) (09/21/2021; 5 pages)
5. Related Services Adaptations for Blended Remote Learning (09/24/2020; 6 pages)
6. Individualized Education Program (IEP) (01/28/2021; 27 pages)
7. Assessment Planning (01/2021; 1 page)
8. Student Progress Reports (01/29/2021; 5 pages)
9. Prior Written Notice (Notice of Recommendation) (01/05/2021; 4 pages)
10. Individualized Education Program (IEP) (06/21/2022; 42 pages)
11. Special Education Recovery Services (11/12/2021; 4 pages)
12. Occupational Therapy Evaluation (11/09/2021; 4 pages)
13. Psychological Update (10/20/2021 and 11/08/2021; 7 pages)
14. Functional Behavioral Assessment (Various Dates 2021; 33 pages)
15. Physical Therapy Evaluation (04/06/2022 and 04/20/2022; 7 pages)
16. Progress Reports – Counseling (06/21/2022; 5 pages)
17. Social History Update (10/04/2021; 6 pages)
18. Request for Re-evaluation (09/13/2021; 2 pages)
Parent Exhibits
P-A. Parent’s Impartial Hearing Request (04/14/23; 9 pages)
P-B. Individualized Education Program (IEP) (01/28/21; 21 pages)
P-C. Individualized Education Program (IEP) (06/21/22; 40 pages)
P-D. Department Counseling Progress Report (01/27/21; 3 pages)
P-E. Department Speech and Language Progress Report (01/29/21; 2 pages)
P-F. Vineland-3, Adaptive Behavior Scales- Third Edition (06/13/21; 31 pages)
P-G. Applied Behavior Analysis (ABA) Treatment Plan (06/13/21; 59 pages)
P-H. Department Occupational Therapy (OT) Evaluation (12/08/21; 3 pages)
P-I. Department Assistive Technology (AT) Evaluation (04/05/22; 8 pages)
P-J. Independent Neuropsychological Evaluation (05/04/22; 24 pages)
P-K. Department Physical Therapy (PT) Evaluation (05/12/22; 11 pages)
P-L. Email correspondence with Parent and Department Regarding assistive technology (AT) evaluation (07/20/21-07/21/21; 2 pages)
P-M. Email from Parent to Department re: crisis paraprofessional (08/18/21; 1 page)
P-N. Email correspondence with Parent and Department Regarding speech and AT (09/13/21-09/19/21; 3 pages)
P-O. Parent letter to Department requesting an Independent neuropsychological evaluation (01/13/22; 1 page)
P-P. Email correspondence with Parent and Department Regarding independent neuropsychological Evaluation (01/28/22-01/31/22; 2 pages)
P-Q. Parent letter to Department requesting Independent PT evaluations and Functional Behavior Assessment With corresponding Behavior Intervention Plan with Receipts (07/15/22; 5 pages)
P-R. Parent letter to Department requesting Independent Educational Evaluations with receipts (04/04/23; 10 pages)
P-S. Tuition Agreement Summary Report (12/20/22; 5 pages)
P-T. Lower School Program Offerings and Features (2022-2023; 9 pages)
P-U. Student Schedule (2022-2023; 1 page)
P-V. Tuition Affidavit (05/10/23; 1 page)
P-W. Ten-Day Notice with Submission and Receipt (12/15/22; 4 pages)
P-X. Request for One-to-One Health Professional (12/22/22; 7 pages)
P-Y. Email correspondence between Parent, DOE, And [REDACTED]re: Bus Paraprofessional with Attachments (01/19/23; 9 pages)
P-Z. Comprehensive Behavior Supports Inc., Progress Report and Treatment Plan (02/07/23; 145 pages)
P-AA. Resume of [REDACTED] (Undated; 8 pages)
P-BB. Consent for Additional Assessments, Social History, Signed (05/17/23; 1 page)
P-CC. Email Communication between Client and CSE 10 re: Consent (05/17/23; 2 pages)
P-DD. Affidavit of [REDACTED] (05/22/23; 10 pages)
P-EE. WITHDRAWN
P-FF. Resume of [REDACTED] (Undated; 3 pages)
P-GG. Parent Consent for Additional Assessments (01/05/21; 2 pages)
P-HH. Assessment Planning (01/10/21; 1 page)
P-II. Email from School to Client RE: IEP (03/22/21; 1 page)
P-JJ. Parent Consent for Additional Assessments (09/17/21; 1 page)
P-KK. Prior Written Notice (10/13/21; 3 pages)
P-LL. Approval of Independent Neuropsychological Evaluation (01/31/22; 2 pages)
P-MM. Affidavit of [REDACTED] (05/05/23; 7 pages)
P-NN. Progress Report, Educational (01/09/23; 5 pages)
P-OO. Progress Report, Occupational Therapy (01/09/23; 5 pages)
P-PP. Progress Report, Speech-Language Therapy (01/09/23; 4 pages)
P-QQ. Functional Behavior Assessment and Corresponding Behavior Intervention Plan (04/00/23; 8 pages)
P-RR. Attendance Record, Final (06/23/23; 1 page)
P-SS. Affidavit of [REDACTED] (09/12/23; 6 pages)
P-TT. Affidavit of [REDACTED] (09/07/23; 2 pages)
P-UU. Affidavit of [REDACTED] (09/11/23; 4 pages)
P-VV. Speech Language Evaluation (08/01/23; 9 pages)
P-WW. Parent’s Memo of Law (09/12/23; 22 pages)
P-XX. Occupational Therapy Evaluation (07/25/23; 8 pages)
IHO Exhibits
I. Interim Order Scheduling IEEs (06/05/2023; 3 pages)
II. Interim IEE Decision (06/29/2023; 12 pages)
III. Prehearing Conference Order (08/04/2023; 7 pages)
IV. Interim Motion Order (08/29/2023; 5 pages)
Footnotes
[1] P-A:001-009 (Parent’s Exhibit)
[2] 20 U.S.C. § 1400 et seq. and 34 C.F.R. § 300 et seq.; § 504 of the Rehabilitation Act of 1973; and New York State Education Law § 4404 et seq. and 8 NYCRR § 200.5 et seq.
[3] P-A:001
[4] 20 U.S.C. § 1400 et seq. and 34 C.F.R. § 300 et seq.; § 504 of the Rehabilitation Act of 1973; and New York State Education Law § 4404 et seq. and 8 NYCRR § 200.5 et seq.
[5] P-A:007
[6] 06/05/23 Tr.7-8 (Transcript pages); IHO-I
[7] IHO-II:8-9
[8] 08/04/23 Tr.12; IHO-III:1 (The transcript pages do not flow sequentially from 06/05/23 to 08/04/23. A status conference was held on 07/14/23, and that transcript started on page 1. The 08/04/23 transcript starts on page 7, and the transcript from the 09/14/23 due process hearing sequentially follows the 08/04/23 transcript starting on page 20.)
[9] IHO-III-2:¶9
[10] IHO-IV
[11] Tr.32-40 (Note: The transcript index reflects the wrong pages for the exhibits.)
[12] Tr.41-43
[13] Tr.43
[14] P-WW
[15] Tr.48-105
[16] Tr.107:9-11
[17] Tr.110
[18] Tr.107:15-24
[19] The claim for the 2020/2021 school year is limited to two years immediately preceding the filing of the DPC on 05/3/2021 (See Parent’s Closing Brief at page 9).
[20] The parent’s request for a BIP has been rendered moot since one was created by the BCBA-D.
[21] P-B:002 and C:021
[22] P-B:001
[23] P-SS:¶14
[24] P-SS:¶13
[25] P-SS:¶15
[26] P-D, P-E, P-H
[27] See District’s Exhibit 4 to their closing brief - Prior Written Notice (PWN) dated 02/10/2021. This exhibit was not admitted into evidence during the DPH. The parent did not object in her closing brief to the submission of post-hearing exhibits.
[28] P-SS:¶10
[29] P-SS:¶11
[30] P-SS:¶9-10
[31] P-SS:¶16-18
[32] P-L:1
[33] P-N:1-3
[34] P-L:1
[35] P-M:1
[36] P-I (AT/IEE report dated 04/05/2022) and P-J (Neuro/IEE report dated 05/04/2022)
[37] Id.
[38] P-C:39
[39] P-B:1
[40] P-C:38
[41] P-W:001
[42] P-W:003
[43] P-B and P-W
[44] P-Q
[45] P-Q:002
[46] Id.
[47] Id.
[48] P-VV
[49] P-XX
[50] P-C:1, 4; P-UU:¶23
[51] P-UU:¶24
[52] P-SS:¶31-32
[53] P-C:32, P-SS:¶24-25, 39
[54] P-A:2
[55] Id. and P-E:¶1
[56] P-E:¶1
[57] P-E:¶6.1
[58] P-A:2 and P-SS:¶10-11, ¶16
[59] Tr.89-90
[60] P-A:2 and P-G:5
[61] P-UU:¶8 [This testimony corroborates the SL therapist, who reported that the student only speaks in two to four word utterances. See P-E:1]
[62] P-SS:¶21 and P-UU:¶17
[63] P-A:2 and P-L:1
[64] P-A:2, and P-SS:¶21
[65] P-M:1 and P-SS:¶24
[66] P-M:1 and P-SS:¶24
[67] Tr.57-54
[68] P-UU:¶19-20
[69] Tr.52-53
[70] P-SS:¶38
[71] P-UU:¶19-21
[72] P-UU:¶20
[73] P-MM¶11
[74] P-MM¶14, 17
[75] Tr.63-64, 68:16-24
[76] Tr.61-63, P-MM:¶15
[77] Autism Spectrum Disorder
[78] Tr.63-64 and P-J:022
[79] Tr.65-68 and P-MM:¶¶19 and 21
[80] Tr.69-70 and P-VV
[81] P-DD:¶3-4
[82] P-DD:¶5
[83] P-DD:¶6-8
[84] P-DD:¶9 and 12
[85] P-DD:¶14
[86] P-DD:¶19
[87] Tr.77-78
[88] P-DD:¶16-18
[89] P-DD:¶20.
[90] Tr.75-77; P-DD:¶21-22, 36
[91] P-DD:¶27-30
[92] Tr.74-75; P-DD:¶32-34
[93] Educ. Law § 4404 (1) (a)
[94] Somoza v. N.Y. City Dep’t of Educ., 538 F.3d 114, quoting 20 U.S.C. § 1415 (b) (6) (B).
[95] K.H. v. New York City Dep't of Educ., 2014 U.S. Dist. LEXIS 108393, *52 [EDNY 2014]
[96] P-SS:¶10
[97] K.C. v. Chappaqua Cent. Sch. Dist., 2019 U.S. Lexis 218144, *40 [SDNY 2019]; 20 U.S.C. §1415 [f] [3] [D] [ii], 24 C.R.F. 300.511 [f], Education Law § 4044 [1] [1], and 8 NYCRR § 200.5 [j] [i]; and see Bd. of Educ. v. CM, 744 Fed Appx. 7, *11 [2d Cir. 20189]
[98] R.E. v. New York Dep’t of Educ., 694 F.3d 167, 184-185 [2d Cir. 2012]; and New York Education Law §4404[1][c]. It is noted that the plain language of the statute is silent as to the burden of proof with respect to the equities and only speaks to the parent’s burden vis-à-vis the appropriateness of the unilateral placement. However, although R.E. v. New York Dep’t of Educ., holds that the parent has the burden on Prong III, this holding relies on Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 [2d Cir. 2005] which was decided prior to the amendment of New York Education Law §4404[1][c] in 2007. Compare, Archive 2007 [L.2007, ch 378, § 19, eff. 06/30/07], with Archive 2006. Prior to 2007, the statute was silent as to the burdens of proof and persuasion, thereby following the Burlington/Carter standard which placed the burden on Prongs II and III on the parent.
[99] 20 U.S.C. § 1415 (i)(2)(c). See also, Reid v. District of Columbia, 401 F.3d 521
[100] Greenwich Collierles v. Director, 990 F.2d 730, 736 [3rd Cir. 1993], affirmed 512 U.S. 246 [1994]
[101] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 1002 [2017] [hereinafter “Endrew F.”]
[102] L.O. v. N.Y. City Dep’t of Educ., 822 F.3d 95, 110 [2nd Cir. 2016]
[103] Id. (italics added).
[104] Id. (italics added).
[105] It is noted that the district only submitted the PWN for the 1/28/2021 IEP as an exhibit to the post-trial motion to dismiss the complaint (Ex. 4). Therefore, this PWN was not considered with respect to the merits of the district’s case.
[106] DOE-11
[107] 20 U.S.C. §§ 1400-1482
[108] See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 183 [1982] [hereinafter referred to as “Rowley” [internal quotations omitted].
[109] Id. at p.188
[110] See generally, Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Rowley, 458 U.S. 206-07; and 20 U.S.C. § 1400 [d] [1] [A]-[B].
[111] Rowley, 458 U.S. 204
[112] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 1000 [2017] [hereinafter “Endrew F.”]
[113] Endrew, 137 S.Ct. 994; and See 34 CFR §300.320 [a] [2] [i], [2] [i] [A]; 8 NYCRR §200.4 [d] [2] [iii].
[114] Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 [2d Cir. 2005]; and Walczak, 142 F.3d 119, 130 [2d Cir. 1998] [internal citations omitted]
[115] See P. v. Newington Bd. Of Edu., 546 F.3d 111, 119 [2nd Cir. 2008]
[116] Rowley, 458 U.S. 182-183 (quotations omitted)
[117] Rowley, 458 U.S. 205
[118] Reid v. District of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] and R.E. v. New York City Dep't of Educ., 694 F.3d 190-191
[119] P-B:1 and P-C:2
[120] 20 U.S.C. §§ 1400-1482; Rowley, 458 U.S. 183-204
[121] P-W
[122] M.O. v. N.Y. City Dept. of Educ., 793 F.3d 244
[123] Rowley, 458 U.S. 205
[124] Rowley, 458 U.S. 205
[125] Gagliardo, 489 F.3d 105, 112 [2d Cir. 2007] [internal citations omitted]
[126] Gagliardo, 489 F.3d 105, 115 [internal citations omitted]
[127] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006], citing Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] (“…the §1401 [a] [18] requirements, including the requirement that the school meet the standards of the state educational agency, 1401 [a] [18] [B] -- do not apply to private parental placements.”)
[128] Gagliardo, 489 F.3d at 112 [internal citations omitted]
[129] Id.
[130] P-DD:¶20.
[131] Rowley, 458 U.S. 183 and 20 U.S.C. §§ 1400-1482
[132] Tr.75-77; P-DD:¶21-22, 36
[133] Id.
[134] Forest Grove Sch. Dist. v. T.A., 557 U.S. 246-247
[135] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014]
[136] Forest Grove Sch. Dist. v. T.A., 557 U.S. 247 and E.M. v. New York City Dep't of Educ., 758 F.3d 461
[137] E.M. v. New York City Dep't of Educ., 758 F.3d 461
[138] Education Law § 4404 [1] [c]
[139] 8 NYCRR § 200.5 [i] [1] [v]
[140] See generally, Rombach v. Change, 355 F.3d 164, 171 [2d Cir. 2004]
[141] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014]
[142] Forest Grove Sch. Dist. v. T.A., 557 U.S. 247 and E.M. v. New York City Dep't of Educ., 758 F.3d 461
[143] E.M. v. New York City Dep't of Educ., 758 F.3d 461
[144] P-V (The petitioners’ income and inability is not required to establish the propriety of direct retrospective payment since the exercise of rights under the IDEA cannot be made to depend on the financial means of a disabled child's parents. Ferreira v. N.Y. City Dep't of Educ., 2023 U.S. Dist. LEXIS 43032, *27 [SDNY 2023] [internal citations omitted]). It is also noted that the district failed to assert the inability to pay as a defense. See also Cohen v. N.Y. City Dep't of Educ., 2023 U.S. Dist. LEXIS 171815, *18 [SDNY 2023], holding that “To require parents to fund their children's education in the first instance, unless they demonstrate an inability to pay…skews the equities underlying the IDEA and cases applying that law. Direct payment to the school simply requires the DOE to belatedly fund expenses that it was obligated to pay all along. E.M. v. New York City Dep't of Educ., 758 F.3d 453. Thus, where, as here, a private school is willing to enroll the student and the risk that it will take years to obtain payment, parents who satisfy the Burlington factors have a right to retroactive direct tuition payment. Mr. & Mrs. A., 769 F. Supp. 2d 403, 428 [SDNY 2011].” Therefore, the tribunal cannot inquire sua sponte into the parent’s financial ability to pay the tuition (Application of a Student with a Disability, Appeal No. 23-036, p.8).
[145] P-S p.2, ¶5
[146] D.S. v. Trumbull, 975 F.3d 152, 156 [2d Cir. 2020]; 20 U.S.C. § 1412(a)(1)(A)
[147] D.S. v. Trumbull, 975 F.3d 157
[148] Bd. of Educ. v. Rowley, 458 U.S. 176, 182 (1982)
[149] D.S. v. Trumbull, 975 F.3d 155; 20 U.S.C. § 1414 (a) (2)
[150] D.S. v. Trumbull, 975 F.3d 157; 20 U.S.C. § 1414 (d) (4) (A)
[151] D.S. v. Trumbull, 975 F.3d 156
[152] D.S. v. Trumbull, 975 F.3d 157
[153] D.S. v. Trumbull, 975 F.3d 158; 34 C.F.R. § 300.502
[154] D.S. v. Trumbull, 975 F.3d 158
[155] D.S. v. Trumbull, 975 F.3d 163; 34 C.F.R. § 300.502(a)(3)(i)
[156] 8 NYCRR § 200.4 (b) (1) (v)
[157] D.S. v. Trumbull, 975 F.3d 158; 34 C.F.R. § 300.502
[158] P-VV and P-XX
[159] D.S. v. Trumbull, 975 F.3d 158; 34 C.F.R. § 300.502
[160] E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 [2d Cir. 2014].
[161] P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008].
[162] Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 [2d Cir. 2008]; and Doe v. East Lyme, 790 F.3d at 454.
[163] See Reid v. Dist. of Columbia, 401 F.3d 516, 525 [D.C. Cir. 2005].
[164] See Id. at 518.
[165] 8 NYCRR §200.5[J][1][I] and 20 U.S.C. §1415 [b] [6] [B] and [f] [3] [C]
[166] G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 613 [3rd Cir. 2015]
[167] Id.
[168] 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.].
[169] See, e.g., Reid, 401 F.3d at 518, 524
[170] Id.
[171] 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]
[172] Doe. v. East Lyme, 790 F.3d 457.
[173] Doe v. East Lyme, 790 F.3d 457 citing Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359, 369 [1985]
[174] Education Law § 4404[1][c]
[175] See JKG v. Wissahickon Sch. Dist., 2021 U.S. Dist. LEXIS 55235 *25 [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].
[176] See generally, Rombach v. Change, 355 F.3d 164, 171 [2d Cir. 2004]
[177] M.M. v. New York City Dep’t of Educ., 2017 U.S. Dist. LEXIS 47812, *25 [S.D.N.Y. 2017]
[178] Doe v. East Lyme, 790 F.3d 457 and Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *26, supra.
[179] P-N:2
[180] P-C:31-32