Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 249138

Student’s Name: [REDACTED] (Student)

Date of Birth: [REDACTED]

School District: New York City Department of Education (DOE)

Hearing Requested by: [REDACTED] (Parents)

Date Complaint Filed: June 21, 2023

Date of Hearing: October 23, 2023

Record Closed Date: December 7, 2023

Date of Decision: December 7, 2023

Impartial Hearing Officer: Amy Randhawa

INTRODUCTION

This case concerns the Student whose eligibility for special education supports and services is not in dispute. The Parents, through counsel, filed a Due Process Complaint (DPC) alleging that the New York City Department of Education (DOE) failed to offer the Student a free appropriate public education (FAPE) for the 2023-2024 school year, causing the Parents to unilaterally place the Student at the Private School and obtain after-school Applied Behavior Analysis (ABA) services from a private ABA provider (ABA Provider), beginning in July 2023. P Ex. 1. 1 0F

Specifically, the DPC asserts that the DOE failed to complete triennial evaluations in all domains; complete a Functional Behavioral Assessment (FBA) and a Behavioral Intervention Plan (BIP); recommend an appropriate class size with a small student to teacher ratio; locate a placement capable of implementing the Student’s Individualized Education Program (IEP) prior to the start of the 2023-2024 school year for a twelve-month program; recommend sufficient parent training and Board Certified Behavior Analysts (BCBA) supervision; recommend home-based services; or recommend sufficient consult services for the Student’s ABA therapists and school. Id. at 3.

By way of relief, the Parents seek an award of reimbursement and direct payment for the Student’s tuition at the Private School for the twelve-month 2023-2024 school year and the following services for a 52-week period: ten hours of weekly after-school 1:1 ABA services, two hours of weekly BCBA supervision, and one hour of monthly consult for the Student’s ABA providers. Id. at 3-4; Tr. 60.

I find that: (1) the DOE failed to meet its burden that it offered the Student FAPE for the 2023-2024 school year; (2) the Private School offers the Student specially designed instruction sufficient to meet the Student’s needs; and, (3) the equities support the Parents’ requested relief for funding for the Private School and 1:1 ABA services, BCBA supervision, and consult for the Student’s ABA providers.

JURISDICTION

This due process hearing (DPH) was held, and a decision in this matter is being rendered pursuant to the IDEA, 20 U.S.C. § 1400 et seq., and its implementing federal regulations, 34 C.F.R. § 300 et seq.; Section 504 of the Rehabilitation Act of 1973; and New York State Education Law § 4404 et seq. and its implementing regulations at 8 NYCRR § 200.5 et seq.

1 Exhibits are referred to as follows: “D” for DOE exhibits and “P” for Parent exhibits, followed by the exhibit number, and if applicable, page number(s) and/or paragraph(s).

PROCEDURAL HISTORY

The DPC was filed on June 21, 2023, and the parties appeared for a Pre-hearing Conference on July 24, 2023, Status Conferences on August 22, September 12, and October 10, 2023, and a DPH on October 23, 2023. At the DPH, the Parents were represented by the Parent Attorney and the DOE was represented by the DOE Attorney. Tr. 49.

At the DPH, the DOE presented no testimony, but entered exhibits 1 through 7 into the record without objection from the Parents. Tr. 51-54. The DOE issued an opening statement and closing statement. Tr. 57-58, 117. The DOE asserted that it was resting on its documents, not presenting any witness, and that the Parents’ requested relief should be denied. Id. The DOE argued that the Parents did not meet their burden to demonstrate that the unilateral placement was appropriate because the Parents are requesting ABA services outside the unilateral placement to meet the Student’s full needs. Id. Further, the DOE argued that the equities favor the DOE because the services requested by the Parents are excessive and unjustifiable. Id.

Without objection from the DOE, the Parents entered exhibits A through S into evidence, including testimony by affidavit from the Founder and current Head of School of the Private School (P Ex. S). Tr. 55-57. The Parents offered the Head of School for cross-examination and presented direct testimony from the Student’s Father and the ABA Provider’s Executive Director. Tr. 65-77, 78-93, 94-115. The DOE cross-examined all three Parent witnesses.^[2] Further, the 1F

Parents issued an opening and closing statement on the record. Tr. 58-60, 117-120. The Parents argued that they met their burden at hearing as the Private School provides the Student with a specialized education program that meets her needs. Id. Further, they asserted that the Student requires the requested after-school ABA services to work towards her goals and access her education in the least restrictive environment. Id.

FINDINGS OF FACT

I make the following findings of fact.

The Student is a [REDACTED] who started at the Private School in July 2019 and is currently completing her fifth year at the school in an [REDACTED] program. D Ex. 1:1, 12; P Ex. S ¶18. She is classified by the DOE as a student with Multiple Disabilities and her Parents have full guardianship of the Student because she cannot make life decisions independently. D Ex. 1:1, 12. The Student is diagnosed with Autism Spectrum Disorder (ASD), Obsessive Compulsive Disorder (OCD), Attention Deficit Hyperactivity Disorder (ADHD), and with learning disabilities. D Ex. 5:3, D Ex. 7:4.

The Student presents with deficits in academic, social emotional functioning, adaptive behavior, and expressive, receptive, and pragmatic language. D Ex. 1:5, 10. The Student’s cognitive, academic, and social needs are significant and preclude participation in the general education curriculum. Id. at 10. As a result, she participates in an alternative assessment curriculum tailored to meet her individual learning needs and address academic concerns. Id.

The Student has a history of engaging in high rates of off task behaviors, including emotional and physical dysregulation in school and high rates of attention seeking behavior; requires consistent support to access the curriculum in both 1:1 and group activities; and, her behavior greatly affects her ability to maintain relationships with peers and navigate her environment. Id. at 5-6. The Student, at times, may cry, yell, scream, physically hurt others, and use her body or objects to [REDACTED] others and objects that [REDACTED] her. Id. at 6. The Student has received ABA services since she was approximately ten years old, including afterschool services from the ABA Provider, as a part of her educational program. Tr. 79, 82. The ABA Provider’s Executive Director accurately defined ABA as the science of behavior applied to improving socially significant behavior to a meaningful degree, which includes utilizing data to identify the specific procedures and tactics necessary to change a student’s learning behavior or communication and participation in the community. Tr. 97.

The DOE’s Committee on Special Education (CSE) convened on March 30, 2023 to create an IEP for the Student effective June 20, 2023. D Ex. 1:1, 41. The Parents participated in the meeting, along with several Private School staff members including the Head of School, and staff from the ABA Provider, including the Executive Director. Id. at 41; D Ex. 2:1. The CSE recommended a 12-month extended school year 8:1:1 program in a District 75 Specialized School along with individual counseling, group occupational therapy, Parent Counseling and Training, group Physical Therapy, group Speech-Language Therapy, and a full-time daily individual paraprofessional for behavior support. D Ex. 1:29-31.

The IEP developed for the Student notes that she is “on a life skills program” and will continue to develop skills to transition to a vocational program, pursue employment, and improve her functional living skills. Id. at 12, 32. The Student’s annual IEP goals include learning personal hygiene, including brushing her hair and adjusting her clothes across settings; following a routine to maintain a clean area and personal hygiene during meals; independently managing money and budgeting; improving her self-regulation and executive functioning skills for increased independence planning, organizing, and completing age-appropriate academic tasks; and, identifying and expressing feelings as they relate to her environment across a multitude of settings.

Id. at 15-17, 24, 28.

Further, the IEP’s transition activities note that the Student will continue to receive instruction in a variety of domains (e.g., life skills, self-care, leisure) aimed at allowing her to function as independently as possible in her home and community life; build skills to improve frustration tolerance, apply coping skills, complete non-preferred tasks, and build rapport with new people; receive support and guidance with safely navigating the community, such as traveling to and from a specific location; and, learn to travel minimum distances to meet her needs with minimal adult support, buy necessities and groceries, cook and prepare meals, manage finances, and clean/organize her home with minimal adult support. Id. at 33-35.

The IEP notes the Parents concerns that an 8:1:1 setting in a District 75 school will be overwhelming for the Student and hinder her ability to grow; that she needs a class size no larger than 6; and, that the Student is thriving at the Private School. Id. at 40. The IEP also notes the Private School’s belief that the Student could not do well in a District 75 school; that she cannot transition from class to class or eat in a cafeteria as her OCD behaviors would be a major trigger; that a class of 8 is too large; and, that the Student would regress in such a setting. Id.

Further, the IEP states that although the CSE considered a Special Class in a specialized school 6:1:1 and NYSED-Approved Non-Public School-Day, the Student “does not need such intensive specialized instruction to address their educational needs.” Id. at 40-41.

By letter dated June 16, 2023 to the CSE (Ten-Day Notice), the Parents provided the DOE notice of their concerns regarding the DOE’s offer of FAPE for the Student during the 2023-2024 school year. P Ex. B. The Ten-Day Notice asserts that the Student requires continuous year-round instruction and access to ABA in order to access an education or otherwise she is prone to regression, but that the CSE recommended a District 75 8:1:1 program without including any school or home-based ABA services or BCBA supervision. Id. Also, the notice states that to date, the Parents have not received a proposed school placement. The Ten-Day Notice informs the DOE that since the DOE failed to provide the Student a FAPE for the 2023-2024 school year, the Student will attend the Private School and the Parents will seek funding from the DOE for the cost of the placement. Id.

The Parents signed a contract for the Private School on May 25, 2023, and the Student was unilaterally placed at the Private School for the 12-month 2023-2024 school year from July 5, 2023 through June 21, 2024 at a total cost of [REDACTED]. P Ex. D, P Ex. E.

The Private School is a non-approved school that provides specialized educational programs for students that require a high degree of customization and an intensive degree of qualified instruction and therapeutic interventions. P Ex. S ¶¶3, 5. During the 2023-2024 school year, there are [REDACTED] students at the school and [REDACTED] treatment staff. Tr. 70. Every classroom team is a co-leading model, including one state certified special education teacher and one lead behavior therapist who is working toward licensure and board certification in ABA under the guidance and supervision of the school’s BCBA/LBAs. P Ex. C. In addition to the classroom staff, the school employs a full-time school nurse, mental health services, occupational therapy, speech and language therapy, and physical therapy. Id.

The Private School offers 1:1 and 2:1 support in a group setting and group sizes vary, with most groups ranging from 6-8 students. Id. Every student is assessed to identify their grade level for reading, writing, and math and then grouped with academic peers for math, English language arts (ELA), science, and history/social studies to facilitate targeted learning in small groups, dyads, and or 1:1 instruction based on learning style and needs. Id. The school’s curriculum adheres to the New York State Common Core with modifications, as needed. P Ex. C. In addition to reading, writing, math, science, social studies/history, current events, art, music, STEAM, and adaptive physical education, the school also offers daily social skills groups which target executive functioning, organization, emotional vocabulary, self-advocacy, transitioning, accepting no, listening and following directions the first time, and relationships. Id.

The school emphasizes transdisciplinary education incorporating expertise from several disciplines and specialties to meet the complex and challenging needs of its students, including ABA, occupational therapy, speech and language therapy, physical therapy, mental health services, social skills instruction, extended day services, and family training. P Ex. S ¶6. All staff are trained in ABA and use ABA methodologies to decrease interfering behaviors by applying proactive measures, including visual supports, visual schedules, and token economy systems. Id. at ¶¶9, 12.

During the 2023-2024 school year, the Student is in 6:3 class with five other students ranging in age from 17 to 19 years old. Id. at ¶20. The Student’s class includes a lead teacher, a lead behavior therapist, an additional behavior therapist, and a clinical supervisor. Id. at ¶21. In addition to daily social skills activities and lessons, the Student receives occupational therapy twice a week for 30-minutes in a group, speech and language therapy once a week for 30-minutes individually and once in a week for 30-minutes in a group, physical therapy twice a week for 30-minutes in a group, and counseling once a week for 30-minutes individually and once in a week for 30-minutes in a group. Id. at ¶¶24-25. All staff members working with the Student have been trained to implement her Behavior Intervention Plan (BIP) and the same plan is used by the Student’s after-school ABA Provider. Id. at ¶26.

The Head of School credibly testified that the Private School addresses the Student’s academic, social, and vocational needs. P Ex. S. Specifically, the Student has progressed in developing money management skills, community safety and awareness, travel training, understanding the functions of local offices, budgeting and distinguishing between needs and wants, and maintaining personal health, hygiene and fitness. Id. at ¶27. Further, the Student is able to identify appropriate responses to problems, coping strategies, and understand the emotional responses of others when 1:1 with an adult and the school is helping her implement strategies in real time. Id. The Student’s Father corroborated that the Private School “is willing to go the extra mile and do whatever” is needed to support the Student and that the school, along with the ABA Provider, have “extinguished many of the [Student’s] OC behaviors to help her go out in public.” Tr. 80-81, 83.

With respect to the Parent’s request for after-school 1:1 ABA services, the Head of School, the Student’s Father, and the ABA Provider’s Executive Director credibly testified that given the Student’s complex and significant needs due to her diagnoses of autism, severe OCD, development disabilities and cognitive delays, she presents with interfering behaviors that affect her ability to participate in classroom instruction, social activities, and activities of daily living. Tr. 65-70, 84, 98-101. As a result, she requires full-day implementation of year-round ABA supports and services in order to access the world around her and stay regulated, including during the school day. Tr. 65-70, 98-101. The Student’s education is geared towards functional living skills, and she requires consistency across her environments in order to meaningfully progress towards independence. Tr. 105-106. She is currently unable to naturally carry over the skills she learns during the school day to other environments without full-day and year-round ABA services and support. Tr. 105-106.

With respect to the Parent’s request for BCBA supervision and monthly consult for the Student’s ABA providers, the Parents’ witnesses credibly testified that given the Student’s unique learning difficulties she also requires collaboration across home, school, and other settings by a team of multidisciplinary professionals lead by a psychologist and behavior therapist, and providers who are highly trained in behavior principles, such as ABA Provider staff and Private School staff. Tr. 69, 92-93, 99-100; P Ex. S ¶28. The Student greatly benefits from utilizing rulebased ABA procedures, and requires a team that can implement very individualized evidence-based interventions across academics, therapeutic interventions, and functional living skills. Tr.

100. For example, the ABA Provider staff who work with the Student take daily data and conduct larger scale assessments, including parent, school staff, and outside provider interviews, to determine the areas of living that the Student needs the most help with and then provide the necessary services and supports. Tr. 98-99. ABA Provider staff and Private School staff collaborate weekly, if not daily, to meet the Student’s needs. Tr. 82.

The Executive Director credibly testified that during the 2023-2024 school year, the ABA Provider provides the Student with direct therapy ten hours a week using primarily naturalistic environment teaching (NET), meaning the provider embeds ABA procedures in the Student’s natural environment so her learning environment is as close to her practical environment as possible. Tr. 98-100. In collaboration with the Private School and the Student’s Parents, ABA Provider staff work with the Student on specific goals including the reduction of unsafe behaviors such as [REDACTED], skin picking, hoarding, spitting at and kicking or hitting people. Tr. 103-

105. Through her after-school ABA services, the Student is learning personal toileting, showering, eating, dressing, teeth and hair brushing routines; addressing her propensity to hoard items and [REDACTED] people and things; and, travel training. Tr. 88-90, 104. During the 2023-2024 school year, the Student has progressed in reducing her skin-picking, independently getting ready in the mornings and on schedule, and with travel training including independently travelling. Tr. 109-110.

Further, the ABA Provider spends two hours a week supervising the Student’s case with BCBA supervision. Tr. 102. This time is used for team collaboration and discussion, including with ABA Provider staff, the Private School, the Student’s Parents, and/or outside providers, to review and discuss her programs and progress. Tr. 102-103. During this time, the Student’s providers ensure that the Student receives consistent behavior interventions across settings pursuant to the BIP created by the ABA Provider which documents the specific behavioral procedures that are required to reduce the Student’s challenging behaviors. Tr. 102-103. The Executive Director credibly testified that data indicates that the Student does not make progress unless consistent procedures are implemented across school, home, and other settings. Tr. 107.

The ABA Provider also provides the Student with at least one hour a month of team meetings, during which the Student’s three direct therapists from the ABA Provider meet to discuss the Student’s needs, including troubleshooting when she is not making progress or when new issues arise that need to be targeted by the providers. Tr. 107, 112-113. Further, during this time, the team ensures that everyone is responding the same way to the Student. Tr. 107. The Executive Director credibly testified that the monthly consult is an essential part of the Student’s educational program, along with 1:1 ABA therapy and BCBA supervision. Tr. 107.

When the Student is dysregulated, she throws furniture, chairs, hits and kicks people and is a danger to herself and others. Tr. 79-81. Through full-day and year-round ABA services which treat her in school, the community, and at home, the Student is able to limit self-injurious behavior and physical aggression towards others, learn self-care and hygiene routines, progress towards independence, and avoid significant regression. Tr. 65-70. The Student’s Father credibly testified that without home-based ABA services it would be “impossible” to get the Student to school because home-based ABA services have helped to extinguish many of the Student’s OCD behaviors, allowing her to function outside the home, and that without these services the Student would be placed in a residential placement because she would be a danger to herself and her family. Tr. 82-83, 86. The Head of School and Executive Director credibly corroborated that without the requested level of support, the Student is a risk to herself and others and would regress to the point of having to be moved to a residential treatment facility. Tr. 101; P Ex. S ¶28. For example, the Executive Director testified that the Student requires ABA services all year long and cannot have any gaps over school breaks, or she will regress “significantly,” as evidenced by the Student’s regression “by years” during the COVID pandemic when the Student was not provided intensive in-person therapy throughout the day. Tr. 100-101, 108.

Full-day and year-round ABA services, including in school and at home, are necessary for the Student to remain in the least restrictive environment. Id. Further, there is a clear nexus between the Student’s after-school 1:1 ABA services, weekly BCBA supervision, and monthly consult for the Student’s ABA providers, to the Student’s IEP and transition goals. The services are necessary for the Student to continue to develop skills to transition to a vocational program, pursue employment, and improve her functional living skills, including but not limited to, learning personal hygiene, managing her finances, and safely navigating her community.

CONCLUSIONS OF LAW AND ANALYSIS

Burden

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. NYS Educ. Law § 4404(1)(c).

A district must pay for the cost of a student’s tuition at a private school if the three prongs of the Burlington/Carter test are met: (1) the DOE denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition. See Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-15 (1993).

Further, the DOE has the burden of proof on the issue of compensatory education. See M.M. v. New York City Dept. of Educ., 2017 WL 1194685 at *4 (S.D.N.Y. 2017); Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015); Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (DC Ct. of App. 2005); Application of Student with a Disability, Appeal No. 21-169.

Prong I - Provision of FAPE

The IDEA provides that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP. 34 C.F.R. § 300.13. A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 389 (2017).

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden at hearing. The DOE should be “able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Id. at 404. Here, the DOE indicated that it is relying on the documents entered into the record to defend a FAPE. Tr. 52, 57. However, the DOE did not present any credible evidence to support its position that the Student was provided a FAPE for the 2023-2024 school year.

The DOE did not provide any explanation for its decision to place the Student in a 8:1:1 program in a District 75 Specialized School when the record before the CSE evidenced that the Student’s Parents, Private School staff, and the ABA Provider’s Executive Director all communicated that an 8:1:1 setting in a District 75 school would be overwhelming for the Student, hinder her ability to grow, and that the Student’s interfering behaviors would be exacerbated in such a setting. The IEP notes that although the CSE considered a Special Class in a specialized school 6:1:1 and NYSED-Approved Non-Public School-Day, the Student “does not need such intensive specialized instruction to address their educational needs.” D Ex. 1:40-41. However, the DOE did not present any evidence to explain why the Student does not need a setting smaller than the 8:1:1 recommended program to address her educational needs. Of note, at hearing, the DOE pointed to no specific documents entered into the record to establish that the Student was provided a FAPE.

I find that the DOE failed to establish by a preponderance of the evidence that it offered the Student a FAPE for the 2023-2024 school year. The DOE did not prove that the 2023-2024 IEP and recommended placement of a 8:1:1 program in a District 75 Specialized School was reasonably calculated to enable the Student to “make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 389 (2017). Prong II - Appropriateness of Unilateral Placement

A private school placement must be "proper under the Act." Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985). This means that the private school must offer an educational program which met the student's special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." Gagliardo, 489 F.3d at 112. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.'" Id., quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).

However, parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G., 459 F.3d at 364-65. When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).

At the hearing, the DOE argued that if the Private School was an appropriate placement, the Student would not need the additional ABA services requested by the Parents after-school to fully assist her academically. Tr. 117. I do not find this argument persuasive as students who attend a private school may also be awarded home-based services if they are necessary for the student to receive a FAPE. VW v. N.Y.C. Dep’t of Educ., 2022 U.S. Dist. LEXIS 147630, at *16 (S.D.N.Y. Aug. 17, 2022) (“both educational placement and additional services may be necessary to provide a particular student with a FAPE”).

I find that the Parents met their burden in proving that the Private School meets the Frank G. standard and provides an educational program designed to meet the Student’s unique needs which will enable the Student to make progress and meet Prong II of the Burlington/Carter standard. The Private School is a small program for students with similar daily living, therapeutic, and transitional needs as the Student. The school provides the Student with individualized support in a small classroom with five other students, a lead teacher, and two behavior therapists, and all staff working with the Student have been trained to implement her BIP. In addition to daily social skills activities and lessons, the Student receives weekly occupational therapy, speech and language therapy, physical therapy, and counseling. Also, the Private School is appropriate as evidenced by the progress the Student is making during the 2023-2024 school year, including developing money management skills, community safety and awareness, travel training, budgeting, and learning how to maintain personal hygiene.

The weight of the evidence establishes that the Student’s individual special education needs are addressed by the Private School during the 2023-2024 school year, and that the instruction offered at the school is "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364. Therefore, I find that the Parents met their burden in proving that the Private School offers an educational program which meets the Student’s needs under Prong II of the Burlington/Carter standard.

Prong III - Equities

Under the third and final prong of the Burlington/Carter test, courts consider “equitable factors” relevant to an order of tuition. Gagliardo, 489 F.3d at 112. “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [Department] throughout the process to ensure their child receive[s] a FAPE.” Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007). Specifically, equitable considerations include the parents’ participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the DOE. See D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 (S.D.N.Y. 2011).

Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). In making that equitable determination, a hearing officer may consider many factors, including, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of privateschool tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014). Reimbursement of private school tuition may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412(a)(10)(C)(iii); 34 CFR § 300.148(d); see S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 U.S. Dist. LEXIS 11354 (S.D.N.Y. Feb. 4, 2008); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 (S.D.N.Y. 2005).

I find that there is nothing in the record to suggest that the Parents failed to cooperate with the DOE, attend any IEP meetings, or to notify the DOE of the unilateral placement decision after the DOE failed to offer the Student with a FAPE for the 2023-2024 school year. The Parents, Private School and ABA Provider staff all participated in the March 30, 2023 IEP meeting and expressed their concerns - at the IEP meeting and in the Ten-Day Notice - that the DOE’s proposed IEP program was not appropriate to meet the Student’s individual needs. Further, the DOE offered no arguments challenging the equities related to the Parents’ unilateral placement.

The Parents submitted an enrollment contract with the Private School listing the Student’s total 2023-2024 tuition as [REDACTED], and an affidavit from the Head of School confirming that the Parents have paid $6,000 towards the cost of tuition and that the remaining total amount due is [REDACTED]. P Ex. D, P Ex. E. I find that the equities support the Parents’ claim for the cost of tuition and order the DOE to reimburse the Parents $6,000 and directly fund the Private School [REDACTED] for the Student’s tuition at the Private School for the 2023-2024 school year for a total amount not to exceed [REDACTED].

ABA Services

The Parents additional request for year-round ABA services can arguably be assessed under the Burlington/Carter test or as a request for compensatory education for the DOE’s failure to provide the Student with a FAPE for the 2023-2024 school year. I find that the Parents’ requested relief is appropriate under either framework.

When a school district denies a child a FAPE, the courts have “broad discretion” to fashion an appropriate remedy.” Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015), citing Carter, 510 U.S. at 15-16. An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child’s education.” Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008) (citations omitted). When calculating an award, a court can 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,” but the ultimate award “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Doe. v. East Lyme, 790 F.3d at 457.

Under New York law, the DOE has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award, but the parents must identify the specific remedy they are seeking so that the IHO can craft an appropriate remedy for the years it is claimed the student was denied a FAPE. Education Law § 4404[1][c]; See JKG v. Wissahickon Sch. Dist., 2021 U.S. Dist. LEXIS 55235 *25 [E.D. Pa. 2021].

Where the DOE fails to provide a FAPE, as I found is the case here, it is “nevertheless incumbent on the district to develop the hearing record to establish the appropriate amount of relief needed to remediate the district's failure.” Application of the New York City Department of Education, Appeal No. 14-014 (SRO NY 2014). “It is not persuasive for the district to simply fault the parent’s request for relief without also explaining its own view of what type of compensatory education relief would be appropriate to remediate the district's failure to provide the student with a FAPE.” Id.

At hearing, the DOE argued that the Parents’ request for ABA Services should be denied because the services are excessive and unjustifiable. However, the DOE failed to explain, let alone prove, how the services are excessive or unjustifiable. Further, the DOE failed to identify any appropriate compensatory education to remedy its denial of a FAPE.

The hearing record, including the persuasive testimony of the Parents’ three witnesses, establishes that the Student cannot progress and meet her IEP daily living and transition goals, or successfully participate in the school day, without the requested ABA Services. Home-based services may be awarded under the IDEA. VW v. N.Y.C. Dep’t of Educ., 2022 U.S. Dist. LEXIS 147630, at *16 (S.D.N.Y. Aug. 17, 2022). Further, as noted above, students who attend a private school may also be awarded home-based services if they are necessary for the student to receive a FAPE. VW v. N.Y.C. Dep’t of Educ., 2022 U.S. Dist. LEXIS 147630, at *16 (S.D.N.Y. Aug. 17, 2022).

As such, I find that the hearing record support the Parents’ request for ten hours of weekly after-school 1:1 therapy, two hours of weekly BCBA supervision, and one hour of monthly consult for the Student’s ABA providers at a rate of $300/hour as these services both offer an educational program which meets the Student's special education needs under Burlington/Carter, and the services are an appropriate equitable remedy for the DOE’s denial of FAPE as they are reasonably calculated to provide the educational benefits that likely would have accrued from special education services the DOE should have supplied to the Student in the first place to meet her needs.

The Parents submitted a Services Agreement and affidavit from the ABA Provider confirming the provision of ten hours a week of direct ABA therapy, two hours a week of BCBA supervision, and one hour a month of team meetings to Student for 52 weeks, from July 1, 2023 through June 30, 2024, at a rate of $300 per hour for each service. P Ex. I, P Ex. J. Further, the Executive Director credibly testified that the $300 an hour cost for the services takes into account the market rates across the field, the cost of inflation, the cost of living, and is necessary for the ABA Provider to provide a high quality of therapists and remain competitive. Tr. 110-111. Of note, the DOE presented no arguments challenging the qualifications or rate charged by the ABA Provider for the Student’s services.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered: (1) Upon receipt of invoice(s), the DOE shall reimburse the Parents $6,000 and directly fund the Private School [REDACTED] for the Student’s 2023-2024 tuition at the Private School for a total not to exceed [REDACTED].

(2) Upon receipt of invoice(s), the DOE shall fund the following ABA services, at a rate not to exceed $300/hour by a provider(s) selected by the Parents including but not limited to the ABA Provider, for services provided from July 1, 2023 through June 30, 2024:

i. ten hours a week of direct 1:1 ABA therapy ii. two hours a week of BCBA supervision, and iii. one hour a month of team meetings.

SO ORDERED.

DATED: December 7, 2023 s/ Amy Randhawa

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

APPENDIX A – REDACTION IDENTIFICATION PAGE

Term Used In FOFD [REDACTED] Information Student [REDACTED] Parents [REDACTED] Parent Attorney [REDACTED] DOE Attorney [REDACTED] Private School [REDACTED] DOE New York City Department of Education Founder and Head of School, Private School [REDACTED] ABA Provider [REDACTED] Executive Director, ABA Provider [REDACTED]

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

DOE EXHIBITS

# DOCUMENT DESCRIPTION DATE PAGES

1. Individualized Education Plan 03/30/2023 42 pages DOE

2. IEP Attendance Page 03/30/2023 1 page DOE

3. Prior Written Notice 08/15/2023 5 pages DOE

4. School Location letter 08/15/2023 2 pages DOE

5. Private School FBA and BIP Undated 9 pages DOE

6. Private School Report 02/17/2023 14 pages DOE

7. ABA Provider Progress Report 09/2022 18 pages DOE

PARENTS EXHIBITS

A. Exh. ID Date Description Pages Due Process Complaint 6/21/23 5 pages

B. Ten Day Notice 6/16/23 2 pages

C. Private School-Program Description 23-24 SY 1 page

D. Student Enrollment Contract 6/2/23 17 pages

E. Tuition Affidavit of Private School Executive Director 7/14/23 2 pages

F. Student Summer Schedule 23-24 SY 6 pages

G. Student Fall Schedule 23-24 SY 5 pages

H. Student Attendance 23-24 SY 1 page

I. Services Agreement 7/1/23 1 page

J. Provider Affidavit of ABA Provider 8/25/23 1 page

K. Behavior Intervention Plan 10/3/23 8 pages

L. Progress Report Fall 2023 1 page

M. Progress Report 10/4/23 1 page

N. Progress Report 10/4/23 1 page

O. Sep 2022 Progress Report 18 pages

P. Resume of ABA Provider Executive Director Undated 1 page

Q. IXL Diagnostic Action Plan 10/12/23 5 pages

R. Resume of Private School Head of School Undated 3 pages

S. Affidavit of Private School Head of School 10/16/23 7 pages

IHO EXHIBITS: None

Footnotes

[2] Pursuant to my hearing orders, the opposing party must write to the offering party, copying me, at least 3 business days before the hearing if they wish to cross-examine any affiant witness. The DOE never indicated in advance of the hearing that they wished to cross-examine the Parents’ affiant witness, the Head of School. As such, the DOE was appropriately limited in the scope of cross-examination questions it could pose at the hearing. Tr. 75-77.