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FINDINGS OF FACT AND DECISION
Case Number: 248877
Student’s Name: [REDACTED]
School District: N.Y.C. Dep’t. of Educ., [REDACTED]
Impartial Hearing Officer: John Henry Olthoff
Date of Filing: 06/09/2023
Hearing Requested by: Parent
Date of Hearings: 07/07/2023, 08/04/2023, 08/11/2023
Date of Decision: 08/23/2023
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 7, 2023
[REDACTED], Advocate (hereinafter “Advocate”) — Student
[REDACTED], Parent (hereinafter “Parent”) — Student
[REDACTED], Esq. — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 4, 2023
[REDACTED], Advocate — Student
[REDACTED], BCBA SETSS Provider (hereinafter “ABA Provider #1”) — Parents
[REDACTED], ABA Provider (hereinafter “ABA Provider #2) — Parents
[REDACTED], Esq., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 11, 2023
[REDACTED], Advocate — Parents
Parent — Parents
[REDACTED] (hereinafter “Program Coordinator”) — Parents
[REDACTED], Esq., Attorney — DOE
BACKGROUND
On June 12, 2023, Parent, through Advocate, initiated a due process complaint (“DPC”) against Respondent New York City Department of Education (“DOE”), pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“IDEA”), The Regulations of the Commissioner of Education, 8 N.Y.C.R.R. § 200.5 and Section 504 of the Rehabilitation Act. On June 14, 2023, I was appointed as the Impartial Hearing Officer (“IHO”) in this matter.
A Settlement and Pre-Hearing Conference (“PHC”) was held on July 7, 2023. The impartial hearing was held on August 4 and 11, 2023. DOE waived its opening statement, did not enter any documents into the record, did not call any witnesses, and waived its closing statement. Parent entered eighteen (18) documents into the record without objection and called four witnesses, including Parent.
LEGAL FRAMEWORK
A School District’s Obligation to Provide a FAPE The Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. (“IDEA”), requires school districts to provide a free appropriate public education (“FAPE”) to students with disabilities, which consists of special education and related services designed to meet students’ unique needs. The IDEA also seeks to ensure that the rights of students with disabilities, and their parents/guardians, are protected. Forest Grove School Dist. v. Y.M., 557 U.S. 230, 239 (2009); Bd. of Educ. of Hendrick Hudson C.S.D. v. Rowley, 458 U.S. 176, 206-07 (1982).
A school district provides a FAPE to a student with a disability when it complies with the various procedural requirements of the IDEA, and the school district’s Committee on Special Education (“CSE”) develops an Individualized Education Program (“IEP”) consistent with those procedural requirements and is reasonably calculated to enable the student to receive educational benefits. Rowley, supra, 458 U.S. at 206-07; T.M. v. Cornwall C.S.D., 752 F.3d 145, 151, 160 (2d Cir. 2014). Under the IDEA, the obligation to identify and evaluate students, and to develop and implement IEPs for students with special education needs rests solely on the school district. In New York it is the school district that bears the burden of proof, including the burden of production and persuasion, regarding any issue at an impartial hearing, except for the appropriateness of a unilateral placement, where the burden shifts to the parent. N.Y. Educ. Law § 4404(1)(c).
If a parent alleges procedural violations of the IDEA, an IHO may find that a student did not receive a FAPE if such procedural violations: 1) impeded the student’s right to a FAPE; 2) significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of FAPE to the student; or 3) caused a deprivation of educational benefits. See 20 U.S.C. §1415(f)(3)(E); 34 C.F.R. §300.513(a)(2); 8 N.Y.C.R.R. §200.5(j)(4)(ii); see also Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007).
For a district to provide for “merely more than de minimis” progress from year to year is insufficient: the U.S. Supreme Court has opined that the essential function of the IEP is to set out a plan for pursuing academic and functional advancement for the disabled student, and that such educational program must be reasonably calculated to enable the student to make progress appropriate in light of the child’s unique circumstances. See Endrew F. v. Douglas Cty. School
Dist. RE-1, 137 S. Ct. 988, 999, 1001, 2017 U.S. LEXIS 2025 (2017). A school district’s failure to offer or provide a FAPE for a disabled student may arise out of many different scenarios, including multiple procedural violations of IDEA requirements by the district, see R.E. v. New York City Dept. of Educ., 694 F.3d 167, 189-91 (2d Cir. 2012), and/or a substantively inadequate and inappropriate IEP. See Rowley, supra, 458 U.S. at 192. “Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” R.E., supra, 694 F.3d at 190-91; see also M.H. v. N.Y.C. Dept. of Education, 685 F.3d 217, 245 (2d Cir. 2012); Werner v. Clarkstown C.S.D., 363 F. Supp.2d 656, 659 (S.D.N.Y. 2005).
A school district’s CSE is required to assess a student in all areas related to the suspected disability, including, where appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities. See 8 N.Y.C.R.R. § 200.4(b)(6)(vii); see also 34 C.F.R. § 300.304(c)(4). The evaluation must be sufficiently comprehensive to identify all of the student’s special education needs, whether or not commonly linked to the disability category in which the student has been identified. 8 N.Y.C.R.R. § 200.4(b)(6)(ix); see also 34 C.F.R. § 300.304(c)(6); R.Z. v. City Sch. Dist. of New Rochelle, 2018 U.S. Dist. LEXIS 56564 (S.D.N.Y. 2018). Additionally, part of any reevaluation of a student, the CSE and other qualified professionals shall review the existing evaluative data on a student and determine whether additional evaluative data are needed. 8 N.Y.C.R.R. § 200.4(b)(5).
The Regulations of the N.Y.S. Commissioner of Education “are designed to ensure that students with disabilities are suitably grouped, requiring that such students be placed with students who have similar levels of academic achievement, social and physical development, and management. needs.” E.P. v. New York City Dep’t of Educ., 2016 U.S. Dist. LEXIS 77891 (S.D.N.Y. June 10, 2016); see also 8 N.Y.C.R.R. § 200.6(h)(2). “New York state regulations implementing the IDEA clearly constrain a school district’s choice of placement classroom.” E.P., supra, citing J.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 63178, 2013 WL 1803983, at *2 (S.D.N.Y. April 24, 2013). Moreover, if a student has been successfully educated by means of a particular methodology or curriculum, and any subsequent placement must transition from that program to a new one in order to benefit meaningfully from the new placement, it must be part of the IEP, or the IEP is invalid.
If a school district defends its IEP, “the use of retrospective testimony about what would have happened if a student had accepted the district’s proposed placement must be limited to testimony regarding the services described in the student’s individualized education program (“IEP”). Such testimony may not be used to materially alter a deficient written IEP by establishing that the student would have received services beyond those listed in the written IEP.” R.E., supra, at 174. Testimony regarding services that do not appear on a student’s IEP may not be used to rehabilitate a deficient IEP or amend that IEP after the fact. R.E., supra, at 185.
School authorities can be expected 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., supra, at 1002.
There can be no delay in implementing a student’s IEP, and the district is required to have an IEP in effect at the beginning of each school year for every student with a disability in that district’s jurisdiction. The failure to do so is a clear denial of FAPE. 20 U.S.C. §1414(d)(2)(A); 34 C.F.R. §300.323(a); 8 N.Y.C.R.R. §200.4(e)(1)(ii); see also, Cerra v. Pawling C.S.D., 427 F.3d 186, 194 (2d Cir. 2005) (school districts must ensure that a child’s IEP is in effect by the beginning of the school year and the parents must be provided a copy); K.L. v. New York City Dept. of Educ., 2012 WL 4017822, at *13 (S.D.N.Y. Aug. 23, 2012), aff'd, 530 Fed. App'x 81 (2d Cir. 2013); B.P.
v. New York City Dept. of Educ., 841 F. Supp. 2d 605, 614 (E.D.N.Y. 2012) (district fulfilled its procedural obligation by providing the IEP before the first day of school); see also SRO Appeal No. 20-110; 20-038; 15-099.
In Mr. and Mrs. A. York v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D.N.Y. 2011), the Court held that failure to offer any placement to the student prior to the start of the school year constitutes a denial of FAPE. In F.B. v. New York City Dep’t of Educ., 132 F. Supp 3d 522 (S.D.N.Y. 2015), DOE did not communicate the school placement to the parents as of the deadline for enrollment at a private school, but before the start of the public-school year. The Court, citing M.O. v. New York City Dep’t of Educ., 793 F.3d 236, 244-45 (2d Cir. 2015), held that parents have the right to obtain relevant information in a timely fashion about DOE’s proposed placement and found denial of FAPE. The Court further held that parents had a procedural right to inquire whether the proposed school location had the resources set forth in the IEP. The Court explained that a parent’s IDEA-guaranteed right to meaningfully participate means, at a minimum, the right to obtain relevant and timely information as to the proposed school, and that the parent’s procedural rights do not stop the moment the CSE meeting ends. In C.U. ex rel. G.U. v. N.Y.C. Dep’t of Educ., 23 F. Supp 3d 210 (S.D.N.Y. 2014), the Court held because the procedural protections in the IDEA are intended to ensure substantive outcomes, see Rowley, supra, at 206, it follows that parents have a procedural right to evaluate the school assignment, i.e., the right to acquire relevant and timely information as to the proposed school. In G.U., supra, the student had autism and a seizure disorder, meaning that the proposed school’s ability to implement the IEP affected the student’s safety as well as education.
School districts do not have “carte blanche” to assign a child to a school “that cannot satisfy the IEP requirements.” T.Y. v. New York City Dep’t of Educ., 584 F.3d 412, 420 (2d Cir. 2009). Additionally, parents who challenge a proposed IEP are not foreclosed from all prospective challenges to a proposed school location’s ability to implement the IEP. R.E., supra. “To conclude otherwise would require parents to send their child to a facially deficient placement school prior to challenging that school’s capacity to implement the child’s IEP, which is “antithetical to the IDEA reimbursement process.” See V.S. ex rel. D.S. v. New York City Dep’t of Educ., 25 F. Supp.3d 295, 300 (S.D.N.Y. 2014); M.O. supra, at 244-45.
Reimbursement/Direct Funding for a Nonpublic School When a school district fails to offer or provide a FAPE, that school district may be obligated to reimburse parents for the costs of private educational services obtained for their disabled student. Generally, reimbursement of such costs is required when: 1) the services or educational program and placement offered by the school district are inadequate or inappropriate for the student; 2) the services or educational program and placement selected by the parents and provided to the student are appropriate; and 3) the equitable considerations and related factors support the parent’s claims. Florence Cty. School Dist. Four v. Carter, 510 U.S. 7 (1993); School Committee of Burlington v. Dept. of Educ., 471 U.S. 359, 369-70 (1985); R.E., supra, 694 F.3d at 184-85.
School districts that seek “to avoid reimbursing parents for the private education of a disabled child can do one of two things: give the child a free appropriate public education in a public setting, or place the child in an appropriate private setting of the State’s choice. This is the IDEA’s mandate, and school officials who conform to it need not worry about reimbursement claims.” Carter, supra, at 15.
Neither the New York Education Law nor the IDEA obligates a parent to prove at hearing that they are unable to afford the cost of their child’s placement at an appropriate private school. Special education placements are to be provided “at no cost to the parent.” N.Y. Educ. Law § 4401(1); Letter to Hampden, 49 IDELR 197 (OSEP 2007). The entitlement to a FAPE cannot depend on a family’s ability to front the cost of a unilateral placement and then wait, potentially years, for reimbursement. See, e.g., D.A. v. N.Y.C. Dept. of Education, 769 F. Supp.2d. 403, 427 (S.D.N.Y. 2011).
Equitable Considerations
The third prong of the Burlington/Carter analysis is that a parent’s claim for reimbursement (or direct payment) must be supported by equitable considerations. Reimbursement/direct payment may be reduced, or denied, if a parent fails to timely raise the appropriateness of an IEP, fails to make their child available for an evaluation, or acts in an unreasonable manner. The latter often involves a parent who obstructed or was uncooperative in the district’s efforts to meet their obligations under the IDEA. See C.L. supra, at 840.
When considering equitable factors, courts “may consider many factors, including, inter alia, whether plaintiff’s unilateral withdrawal of her child from the public school was justified, whether plaintiff provided the Department with adequate notice of the withdrawal, whether the amount of private school tuition was reasonable, whether plaintiff should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect.” E.M.
v. New York City Dep’t of Educ., 758 F.3d 442, 461 (2d Cir. 2014). See also C.L., supra, at 840 (where parents’ pursuit of a private placement “was not a basis for denying their tuition reimbursement, even assuming, as the District contended before the IHO, that the parents never intended to keep [student] in public school.”) (emphasis added).
Compensatory Education
The IDEA authorizes a hearing officer to fashion an appropriate remedy, and compensatory education is an available option under the IDEA to make up for a denial of a FAPE. P. v. Newington
Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). The broad discretion under the IDEA allows for courts to consider reimbursement for private school tuition as compensatory education for longer than the statute of limitations. See, Draper v. Atl. Indep. Sch. Sys., 518 F.3d 1275 (11th Cir. 2008). A student “is entitled to compensatory education for the period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the problem.” G.L., supra, at 618-19; citing M.C. ex rel. J.C. Cent. Reg’l Sch. Dist., 81 F.3d 389, 396-97 (3d Cir. 1996).
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). The purpose of compensatory education is to provide an appropriate remedy for a denial of FAPE. See, e.g., E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 451 (2d Cir. 2014); see also Newington, supra, at 123. Such an award should aim to place the student in the position they would have been had the school district complied with its obligations under the IDEA. See, e.g., Newington, supra, at 123; see also Draper, supra, 1275, 1289.
Compensatory education is an equitable remedy that may require a district to fund a child’s education beyond their statutory eligibility. Burr v. Ambach, 863 F. 2d 1071 (2d Cir. 1988); see also M.C. v. Cent. Reg’l Sch. Dist., 81 F. 3d 389 (3d Cir. 1996). In the Second Circuit, extended eligibility has been limited to “gross violations” of IDEA for a substantial period of time. See Garro v. State of Connecticut, 23 F.3d 734 (2d Cir. 1994); Somoza v. New York City Dep’t of Educ., 538 F.3d 106 (2d Cir. 2008).
A presently appropriate educational placement “does not abate the need for compensatory education.” D.W. v. Dist. of Columbia, 561 F. Supp. 2d 56, 61 (D.D.C. 2008); see also Flores ex rel. J.F. v. Dist. of Columbia, 437 F. Supp. 2d 22, 30 (D.D.C. 2006). Where a current appropriate program must provide some benefit, an award of compensatory education must do more—it must compensate. See Reid ex rel. Reid v. Dist. of Columbia, 401 F. 3d 516, 525 (D.C. Cir. 2005).
Moreover, a child’s entitlement to special education “should not depend on the vigilance of the parents (who may not be sufficiently sophisticated to comprehend the problem) nor be abridged because the district’s behavior did not rise to the level of slothfulness or bad faith.” M.C., supra, at 397. Where parents participated in IEP meetings, but there was no reason they knew or should have known about a school district’s denial of FAPE until an independent evaluation revealed a student’s diagnoses and capabilities, and parents initiated a due process complaint within two years of the evaluation, the finding of denial of FAPE and the amount of compensatory education was not barred by the two year statute of limitations. See K.H. v. New York City Dep’t of Educ., 2014 U.S. Dist. LEXIS 108292 (E.D.N.Y. 2014).
FINDINGS OF FACT
After considering all the evidence, as well as Counsels’ arguments, this IHO’s Findings of Fact are as follows:
1. Student is a [REDACTED] year-old boy who resides with his parents on [REDACTED].
(Ex. A) [1]
2. Student has been diagnosed with Autism Spectrum Disorder (“ASD”), with accompanying a. Expressive and receptive language deficits; b. Attention deficits, hyperactivity and impulsivity; c. Fine motor and graphomotor deficits; d. Sensory integration deficits; e. Deficits in adaptive skills; f. Stereotypic behaviors; and g. Academic learning deficits. (Ex. G-9).
3. Student received Applied Behavior Analysis (“ABA”), a therapeutic intervention for students with ASD, from Early Intervention (“EI”) and during preschool. (Ex. A-2) [2].
4. Student made progress with ABA and the related services he received from EI and during preschool. (Ex. A-2-3).
5. Student regressed considerably during the 2021-2022 and 2022-2023 school years, due in part to DOE’s failure to offer or provide ABA services. (Ex. A-4-6; see also Exs. C, E).
6. A February 2023 Progress Report notes that Student was “not meeting expectations” in academics and continued to struggle with attending to tasks. (Ex. F).
7. A neurodevelopmental evaluation of Student was conducted on February 23, 2023. (Ex. G).
8. The neurodevelopmental evaluation indicates that Student exhibits global deficits as a result of his autism diagnosis. (Ex. G).
9. The evaluation recommends, inter alia, that Student should be placed “in a special education school whose primary teaching methodology is 1:1 Applied Behavior Analysis,” (Ex. G-9).
10. Parent attended a Committee on Special Education (“CSE”), virtually, on March 30, 2023, to develop an IEP for Student (“March 2023 IEP”). (Exs. B, J).
11. The March 2023 IEP notes Students difficulties in the school environment, including, inter alia, difficulties in sustaining attention, the need for redirection, issues with elopement, and difficulty with following directions. (Ex. J).
12. DOE conducted a Classroom Observation on May 9, 2023. (Ex. N-4). The Classroom Observation notes that Student was having considerable difficulty attending to the lesson, and “was observed to run away from desk to rug area, throwing himself onto the floor, kicking and banging his hands.” After his paraprofessional attempted to intervene, Student “continued to roll on the floor and was seen crawling away from her, going under desks, and other seats. [Student] was then observed to walk over to the water fountain and turn on the sink, playing with the water and stimming frequently.” (Id.).
13. The CSE reconvened on May 22, 2023. (Ex. M).
14. At the May 22, 2023 CSE, Parent again requested a deferral to DOE’s Center-Based
Support Team (“CBST”) for a deferral for a nonpublic school placement. This request was refused. (Ex. A-7-8).
15. After previously agreeing that Student required an ABA-based school program, the CSE changed its recommendation to a 6:1:1 classroom in a District 75 school. (Ex. A-8).
16. Student is currently receiving home ABA pursuant to a partial resolution of the instant matter. (Exs. B, O, Q, R; Tr. 61-65).
17. Student has been able to realize some progress since he started receiving ABA pursuant to the partial resolution agreement. (Ex. B).
18. Student continues to exhibit difficulty in attending and communicating, and with elopement behaviors. (Ex. Q).
19. Student was given a screening at Parent’s proposed placement, a New York State Approved
Nonpublic School (“NPS”), and the NPS was found to be appropriate for Student. (Ex. K).
20. The Program Coordinator NPS testified that the NPS provides an ABA-based curriculum designed to meet the needs of students on the autism spectrum. (Tr. 86-106).
21. The Program Coordinator additionally testified that Student responded well to ABA strategies during his screening. (Tr. 91, 100-01).
22. The considered consensus among the witnesses is that Student has benefited from, and will continue to benefit from, an intensive school-based ABA program with home ABA
support.
ANALYSIS AND CONCLUSIONS OF LAW
DOE Failed to Offer or Provide Student with a FAPE
As an initial matter, DOE chose not to enter any documents or present any witnesses or opening or closing arguments, effectively conceding that it failed to meet its burden under the New York Education Law. Far from offering a cogent explanation for its recommendations, DOE instead opted to leave all of the heavy lifting at the hearing to Parent.
Additionally, the record supports a finding that DOE denied Student a FAPE during the 21/22, 22/23, and 23/24 SYs. First, while Parent is a mandatory CSE member pursuant to 8 N.Y.C.R.R. § 200.3(a)(1)(i), DOE exhibited a pattern of failing to consider Parent’s requests, either by its failure to agree to a deferral to the CBST, or its failure to provide any additional requested supports despite clear evidence of Student’s regression. (Ex. A-6-7; see also Exs. E, J, M, N). While DOE did conduct a Functional Behavioral Assessment (“FBA”) and develop a Behavior Intervention Plan (“BIP”) in February 2022, DOE never provided Parent with any update on Student’s progress (or lack thereof) with the BIP. (Ex. A-4-5). Although a school district is not required to offer “everything that might be thought desirable by loving parents,”[3] the record demonstrates that DOE failed to offer Parent meaningful participation in the IEP process.
Additionally, Parent alleged, and DOE failed to rebut, that DOE failed to ever provide Parent Counseling and Training (“PCAT”), per the requirement in the Commissioner’s Regulations that PCAT be offered to parents of children with autism. 8 N.Y.C.R.R. § 200.13.
Moreover, DOE has failed to demonstrate that its various recommended placements were reasonably calculated to enable Student to receive educational benefits. This is especially concerning given its different placement recommendations during the 21/22 SY (12:1:1 classroom in a Community School), 22/23 SY (8:1:1 classroom in a Non-Specialized School), and 23/24 SY (6:1:1 classroom in a District 75 School). (Exs. C, E, M). In addition to demonstrating that Student has regressed considerably under DOE’s care, these varied placements support the conclusion that Students needs cannot currently be met in a public-school setting.
Parent’s Proposed Educational Placement is Appropriate
While it is understood that Parent seeks placement at a New York State Approved Nonpublic School, namely the AHRC James P. Murphy Staten Island Prep School (“NPS”), with the added support of a home-based ABA program, for the 23/23 SY, the appropriateness of Parent’s proposed remedy will be analyzed under the Burlington/Carter framework.
The record establishes that Student responded to, and made progress with, ABA therapy in the home and in the classroom. (Exs. A, B). Parent’s witnesses provided extensive testimony affirming Student’s need for an ABA-based school placement with home ABA, supported by a Board Certified Behavior Analyst (“BCBA”). (Exs. K, Q, R; Tr. 49-65; 86-106).
Program Coordinator at NPS provided extensive credible testimony concerning NPS and how the program is designed to meet the needs of students with ASD, such as Student. (Tr. 88-106). Specifically, NPS uses ABA teaching strategies based on a curricular framework known as Strategies for Teaching based on Autism Research (“STAR”), which utilize “evidence-based intervention practices that the National Professional Development Center on Autism Spectrum Disorders as well as the National Autism Center has identified as the most effective for children with autism.” (Tr. 88-89). The NPS also provides related services, and Program Coordinator works with the principal and with providers to create the appropriate schedules for each student. (Tr. 97-98).
Program Coordinator additionally testified that Student responded well to positive reinforcement and was able to exhibit appropriate behavior during the screening. (Tr. 100-01). Program Coordinator also testified as to the importance of working with parents and with home providers to ensure carryover of skills. (Tr. 101-05). Program Coordinator credibly testified that if she did not believe that NPS was appropriate for Student, the family would not have received an “appropriateness letter.” (Tr. 105; see Ex. K).
Parent has established by a preponderance of the evidence that the proposed NPS placement will provide Student with special instruction, supported by related services, that will enable him to receive an educational benefit.
Parent has likewise established that the requested home-based ABA program is necessary to meet Student’s needs. DOE’s IEPs have documented Student’s difficulties in attending, and issues with, inter alia, elopement and self-stimulatory behaviors that interfere with this learning. (See, e.g., Ex. J-6). Student has been able to make some progress with the home-based ABA program he currently receives pursuant to the partial resolution in this matter. (Exs. B, Q, R; Tr. 49-73) [4]. ABA Provider #1 credibly testified that Student should receive “continuous SETSS at home, after school, with his current team, let by the BCBA, so that [Student] can continue to receive ABA therapies throughout the course of his day,” and further testified that Student “would greatly benefit from these services to work on gaps in foundational and behavioral skills.” (Ex. Q). ABA Provider #2 similarly stated that Student “needs to attend a full day ABA program in the Fall
2023. [SETSS] 1:1 instruction should be mandated at home supplying [Student] with ABA throughout his day and aiding in generalization of acquired skills in different environments.” (Ex. R).
Equitable Considerations Favor Parent
Parent has demonstrated cooperation and attempts to collaborate with DOE in all respects concerning Student’s special education placements, including attendance at all IEP meetings, and in seeking out independent evaluative data to share with the CSE. (Exs. A, B, C, G, J, M). DOE’s failures stand on their own and are in no way fairly traceable to any action (or inaction) on Parent’s part. See, e.g., E.M, supra. Parent’s interest in a nonpublic placement in light of DOE’s failures is entirely reasonable and, as a matter of law, is no bar to Student’s placement in, or funding for, such a placement. C.L., supra.
Prospective Placement is Appropriate
Under certain circumstances, courts have frowned on an IHO ordering relief in the form of specific IEP recommendations, as such have the effect of circumventing the process detailed in the IDEA, where the school district’s CSE is tasked with reviewing information about the student’s progress under current educational programming and periodically assessing the student’s needs. See, e.g., SRO Appeal No. 22-145, citing Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 (D.D.C. 2018). However, where DOE has failed Student consistently, but particularly for the SYs in question, where it has itself demonstrated that its placements were failing to meet Student’s needs (Exs. C, E, N-4), where it has offered no defense of its various IEPs, and placements, and where Parent has proposed an educational placement capable of producing progress, it is within this IHO’s discretion to fashion appropriate relief, and placement at NPS, with the added support of a home ABA program, is an appropriate remedy in this instance.
Student is Entitled to an Award of Compensatory Education
Given DOE’s failure to offer or provide Student with a FAPE during the 21/22 and 22/23 SYs, DOE will be required to provide services likely to place Student in the place he would have been had DOE fulfilled its obligation in the first instance. See Newington, supra; Reid, supra; Draper, supra.
I find that Parent’s calculation of 920 hours of ABA, to be provided by a BCBA, along with 920 hours of Special Education Teacher Support Services (“SETSS”) by a provider trained in ABA, to be appropriate in light of Student’s demonstrated deficits and needs. (See Ex. A-11).
DECISION AND ORDER
IT IS HEREBY ORDERED that DOE procedurally and substantively denied Student a FAPE during the 21/22, 22/23, and 23/24 SYs; and IT IS FURTHER ORDERED that within ten (10) days of this decision, DOE shall do the following:
1. Convene a Committee on Special Education, including a representative from [REDACTED] NPS, wherein DOE shall defer Student’s placement to its Center Based Support Team, specifically for placement at that NPS; and
2. Add to Student’s IEP a home-based ABA program consisting of the following: a. 10 hours per week of direct ABA therapy provided by a BCBA; b. 2 hours per week of indirect ABA provided by a BCBA or Licensed Behavior Analyst (LBA), to provide Parent with training and to collaborate with the school; c. 5 hours per week of direct Special Education Support Services (SETSS) by an ABA-trained provider; d. 1 hour per week of indirect SETSS to provide for collaboration between school and home; and IT IS FURTHER ORDERED that DOE shall provide Student with compensatory education in the form of
a. A bank of 920 hours of ABA provided by a BCBA; and b. A bank of 920 hours of SETSS by an ABA-trained provider; and IT IS FURTHER ORDERED that all home-based services be funded at market rate; and IT IS FURTHER ORDERED that there shall be no expiration date for the compensatory education services in this Order; and IT IS FURTHER ORDERED that DOE shall provide a copy of this decision to any person participating in any review of Student’s placement that takes place during the next twelve (12) months from the date of this decision, at least three (3) days in advance of any such meeting.
Dated: New York, NY
August 23, 2023
/s: John Henry Olthoff/
John Henry Olthoff, Esq.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within forty (40) days 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, pursuant to Section 4404 of the New York 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 twenty-five (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, the 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 (2) 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 are available at http://www.sro.nysed.gov.
DOCUMENTATION ENTERED INTO THE RECORD BY DOE
None
DOCUMENTATION ENTERED INTO THE RECORD BY PARENT
EXHIBIT DESCRIPTION DATE PAGES
A. Request for Impartial Hearing June 9, 2023 (11 pages)
B. Parents Supplemental Affidavit July 27, 2023 (1 page)
C. Individualized Education Program April 7, 2021 (23 pages)
D. Psychoeducational Evaluation October 14, 2021 (4 pages)
E. Individualized Education Program April 14, 2022 (40 pages)
F. Progress Report to Families February 2023 (1 page)
G. Neurodevelopmental Evaluation February 23, 2023 (12 pages)
H. Email with google meet link for March 30, 2023, IEP March 22, 2023 (2 pages)
I. Behavior Intervention Plan undated (1 page)
J. Individualized Education Program March 29, 2023 (30 pages)
K. Letter of Appropriateness April 4, 2023 (1 page)
M. L Email correspondence with school assessment team April 24, 28 May 1, 10 4 & 12, 2023 Individualized Education Program May 22, 2023 (37 pages)
N. Email from PS 31 school social worker May 22, 2023 (4 pages)
O. Resolution Agreement June 23, 2023 (2 pages)
P. DOE Guidance document – Determining the Need Undated (3 pages)
Q. for Compensatory Services at IEP Meetings Witness Affidavit – [REDACTED] August 4, 2023 (2 pages)
R. Witness Affidavit – [REDACTED] August 4, 2023 (2 pages)
Footnotes
[1] “(Ex. __)” and “(Exs. __)” refer to an exhibit or exhibits entered into the record, while “(Tr. __)” refers to the page in the transcript cited.
[2] Parent’s DPC is presented as a notarized document and, accordingly, serves as her direct testimony in this proceeding. As DOE failed to rebut any of Parent’s allegations set forth in the DPC, I accept the allegations as facts.
[3] See, e.g., Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998).
[4] While I would not go so far as to adopt Parent Advocate’s position that DOE’s offer of home ABA through resolution is a tacit acknowledgement on DOE’s part that Student requires these services (see Tr. 39), the progress shown in a short period of time, in contrast to the regression documented when Student was not provided these services, suffice to establish their appropriateness.