NY IHO #249471: Impartial Hearing...

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CASE NUMBER: 601550 - NYC: 249471

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED (“Student”)

Date of Birth: REDACTED

School District: REDACTED

Hearing Requested by: REDACTED (“Parent”)

Request Date/Date Complaint Filed: June 29, 2023

Date(s) of Hearing: November 6, 2023

Actual Record Closed Date: November 24, 2023

Date of Decision: December 7, 2023

Time Sensitive No

Hearing Officer: Robin Levin, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 6, 2023

For the Student:

REDACTED (“Parent’s Attorney”)

REDACTED (“Parent”)

REDACTED (“Director of Elementary School Programs at the Private School”)

For the Department of Education:

REDACTED (“DOE Representative”)

IHO Observing

REDACTED

INTRODUCTION

This is a decision rendered after a due process hearing (“DPH” or “hearing”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, Educ. Law Article 89 §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq.^[1] This case concerns Student, a REDACTED-year-old, who is classified as a student with Multiple Disabilities.^[2]

On June 29, 2023, the Parent, through the Parent’s Attorney, filed a Due Process Complaint (“DPC”) against the New York City Department of Education (“DOE” or District”).^[3] In the DPC, the Parent alleged that the DOE failed to offer the Student a Free Appropriate Public Education (“FAPE”) for the 2023-2024 school year.^[4] The Parent alleged that the Individualized Education Program (“IEP”) developed by the Committee on Special Education (“CSE”) for the 2023-2024 school year is not reasonably calculated to enable the Student to make progress appropriate in light of her circumstances.^[5] Specifically, the Parent alleged that 1) the IEP lacks results of a current psychoeducational evaluation, 2) the CSE failed to perform a Functional Behavior Assessment (“FBA”) or create a Behavior Intervention Plan (“BIP”), 3) the goals listed in the IEP are vague and not measurable, 4) the IEP lacks any provision for one-on-one and small group instruction, 5) the IEP does not allow for inclusion opportunities with general education students, and 6) the DOE failed to make the Public School placement available for a tour prior to the commencement of the 2023-2024 school year.^[6] Therefore, the Parent unilaterally placed the Student in a private school (“Private School”) for the 2023-2024 school year.^[7] The Parent alleged in the DPC that the Private School is an appropriate placement for the Student, and the equities favor the Parent.^[8] By way of relief, the Parent seeks tuition funding for the cost of the Student’s tuition at the Private School, an order directing the DOE to issue Related Service Authorizations (“RSAs”) for the Student’s paraprofessional, and an order directing the DOE to provide specialized transportation service and the devices and equipment mandated in the Student’s IEP.^[9]

As discussed below, I find that the DOE denied the Student a FAPE for the 2023-2024 school year. I find that the Private School provided the Student specially designed instruction sufficient to meet the Student’s needs. I find that the equities support the Parent’s request for direct tuition funding. In addition, I find that the Student is entitled to specialized transportation services, a 1:1 paraprofessional, and all of the devices and equipment mandated by her IEP.

PROCEDURAL HISTORY AND POSITIONS OF THE PARTIES

On June 30, 2023, I was appointed as the Impartial Hearing Officer (“IHO”). During the resolution period, the parties entered in an agreement on pendency.^[10] On August 1, 2023, the parties appeared via videoconferencing for a pre-hearing conference (“PHC”).^[11] The parties requested additional time for the DOE to determine if the matter was recommended for settlement.^[12] Status conferences were held on September 5, 2023 and October 2, 2023 and ultimately, the case was scheduled for a hearing.^[13]

A virtual hearing was held on November 6, 2023.^[14] It was a closed hearing.^[15] The Parent was present and represented by the Parent’s Attorney. The DOE Representative was also present. The DOE Representative declined to admit any documentary evidence into the hearing record.^[16] The Parent’s Attorney submitted 23 exhibits, which were all admitted into the hearing record without objection, including affidavit testimony from the Director at the Private School and affidavit testimony from the Parent.^[17] Both parties gave opening statements.^[18] The DOE declined to call any witnesses at the hearing.^[19] The DOE cross-examined the Director at the Private School, and the Parent’s Attorney asked additional questions of the witness.^[20] The DOE Representative declined to cross-examine the Parent.^[21] The Parent rested, and the parties gave closing statements.^[22] The record was closed on November 24, 2023 after receipt and review of the hearing transcript.

In the DOE’s closing statement, the DOE Representative argued that even though the DOE did not present any witnesses or provide any documentary evidence at the hearing, the evidence in the hearing record supports a finding that the IEP dated March 30, 2023 was appropriate for the Student for the 2023-2024 school year.^[23] In addition, the DOE Representative argued that the Parent failed to show that the unilateral placement at the Private School was appropriate for the Student for the 2023-2024 school year.^[24]

In the Parent’s closing statement, the Parent’s Attorney argued the DOE failed to meet its burden at the hearing to show that the Student was offered a FAPE for the 2023-2024 school year.^[25] In addition, the Parent’s Attorney argued that the hearing record demonstrates that the unilateral placement at the Private School was appropriate for the Student for the 2023-2024 school year.^[26] The Parent’s Attorney also argued that the evidence shows that the Parent fully cooperated with the DOE throughout the IEP process.^[27]

LEGAL FRAMEWORK

Tuition Funding

This case concerns the Parent’s request that the DOE directly fund the cost of the Student’s tuition at the Private School for the 12-month 2023-2024 school year.^[28] When a parent believes that a school district has failed to provide a student with a FAPE, a parent may unilaterally enroll the child in a private school and seek tuition payment from the school district by filing a due process complaint.^[29] The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.”^[30] A school 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 district denied the student a FAPE; (2) the private school unilateral placement is appropriate; and (3) the equities favor an order of tuition reimbursement or funding.^[31]

The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.^[32] 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.^[33] A school district has offered a student a FAPE when it complies with the procedural requirements set forth in the IDEA, and the IEP is reasonably calculated to enable the student to receive educational benefits.^[34] Under the IDEA, students with disabilities are entitled to be educated in the least restrictive environment that meets their unique needs.^[35]

Parents may allege procedural and/or substantive FAPE violations. For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.”^[36] 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.”^[37] The District must offer “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’”^[38]

Moreover, a school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.^[39] The IEP must be reviewed at least annually, and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year.^[40] The IEP should: (1) accurately reflect the results of evaluations to identify the student’s needs,41 (2) provide for the utilization of sufficient special education programs or services,^[42] and then (3) the IEP must be properly and timely implemented.^[43] Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE.^[44]

In due process hearings under the IDEA in New York, school districts have the burden of proof, including the burden of production and burden of persuasion. However, there is an exception in that a parent seeking tuition reimbursement or funding for a unilateral parental placement has the burden of persuasion and burden of production regarding the appropriateness of such placement.^[45] Parents seeking reimbursement or tuition funding “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”^[46] While there are some exceptions, “’the same considerations and criteria that apply in determining whether the [DOE’s] placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’”^[47]

A unilateral private school placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.”^[48] Parents need not show that the unilateral placement is perfect or that it meets all state educational standards.^[49] Instead, parents must “demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from

41 34 C.F.R. § 300.320(a)(1); 8 N.Y.C.R.R. 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008). instruction.”^[50] In addition, a unilateral placement is appropriate if it provides instruction specially designed to meet the unique needs of a student.^[51] The determination of whether the unilateral placement serves a student’s individual needs and is reasonable calculated to enable a student to receive educational benefits does not depend only on one factor. Instead, courts assessing the appropriateness of a unilateral placement must consider the totality of the circumstances, including but not only, academic progress demonstrated through grades, test scores, progress reports, and regular advancement.^[52] A private school placement must be “proper under the Act.”^[53] This means that the Private School must offer an educational program which meets the Student’s special education needs.^[54]

Under Burlington/Carter, if the parents are financially obligated to pay for the contracted tuition costs and have met their prong 2 burden, the contract must be fully reimbursed or directly funded by the district unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced.^[55] The courts have “broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”^[56] 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."^[57] “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [DOE] throughout the process to ensure their child receive[s] a FAPE.”^[58]

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 District.^[59] In addition, a hearing officer may consider many additional factors, including whether a parent’s unilateral withdrawal of the child from the public school was justified, whether the parent should have sought need-based scholarships or other financial aid from the private school, whether there was any fraud or collusion in generating, or inflating, the tuition to be charged to the school district, and whether the arrangement with the school was fraudulent or collusive in any other respect.^[60] “Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable.”^[61]

Furthermore, direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA.^[62] Under the law, “once the Burlington prerequisites are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of the private placement immediately.”^[63]

Transportation Services

The IDEA further requires that a school district must provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’ even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport.”^[64] In addition, state law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs.”^[65]

The requested transportation must also be “reasonable when all of the facts are considered.”^[66] In a guidance document, the State Education Department has indicated that the CSE should consider and document a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, that the IEP “must include specific transportation recommendations to address each of the student's needs, as appropriate,” and that when determining a student’s special transportation needs, such as the need for door-to-door transportation, it must document them.^[67] Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance.^[68]

Paraprofessional

New York State regulation includes as a special factor an IEP team’s consideration of 1:1 paraprofessional services to meet the individualized needs of a student with a disability.^[69] The IEP team must consider a number of factors before recommending a 1:1 paraprofessional on a student's IEP, including but not limited to the student's goals and management needs, the specific support the 1:1 paraprofessional would provide, other supports or accommodations that could meet the student's needs, how long and under what circumstances the student needs the paraprofessional, staffing ratios in the classroom, any potential harmful effect of having a 1:1 paraprofessional, and training and support that will be provided to help the paraprofessional understand and address the student's needs.^[70]

Moreover, according to the DOE’s Special Education Standard Operating Procedures Manual (“SOPM”), a 1:1 paraprofessional must serve one of the following functions: 1) Behavior Support, 2) Health, 3) Toileting, 4) Orientation and Mobility for visual impaired students.^[71] According to the SOPM, a Health Paraprofessional “may be recommended when a student’s medical or functional status… prevent[s] the student from participating and benefitting from school-based activities with less intensive supports, including school-based nurses, related service providers and programmatic paraprofessionals.”^[72] In addition, “[a] 1:1 health paraprofessional may also be recommended to monitor the student for specific signs and symptoms related to the student’s health or medical condition.”^[73]

Assistive Technology Devices, and Equipment

Furthermore, New York State Education Law describes special education as including “special services or programs,” which, in turn, includes, among other things, “[s]pecial classes, transitional support services, resource rooms, direct and indirect consultant teacher services, transition services…assistive technology devices….”^[74] An assistive technology device is defined as “any item, piece of equipment, or product system…that is used to increase, maintain, or improve functional capabilities of a child with a disability.”^[75] The IDEA requires that the CSE, when developing a child's IEP, must “consider whether the child needs assistive technology devices,” among other things.^[76]

Further, “[o]n a case-by-case basis, the use of school-purchased assistive technology devices in a child's home or other setting is required if the child's IEP team determines that the child needs access to those devices in order to receive FAPE.”^[77] Additionally, “[t]he failure to provide assistive technology denies a student [free appropriate public education] only if the student could not obtain a meaningful benefit without such technology.”^[78] “[A]lthough assistive technology will almost always be beneficial, a school is only required to provide it if the technology is necessary.”^[79]

FINDINGS OF FACT AND DECISION

After a full review of the hearing record, I make the following findings of fact and determinations. Overall, I find all exhibits admitted into the hearing record to be relevant, and I find all the witnesses credible. I base the following on the record generated at the hearing.

The Student is currently REDACTED years old and presents as a happy and sweet child.^[80] She is classified by the CSE as a student with Multiple Disabilities.^[81] The Student is diagnosed with “REDACTED… and is globally delayed in all the domains.”^[82] The Student is non-verbal and uses an assistive technology device in order to communicate.^[83] She “is also not fully ambulatory and requires a variety of devices, including a stroller and adaptive furniture to navigate her environment.”^[84] The Student has significant delays academically, socially, behaviorally, and in activities of daily living, and it is undisputed that she requires a full-time 1:1 paraprofessional.^[85]

Prong 1

The Parent alleges that the DOE denied the Student a FAPE for the 2023-2024 school year because: 1) the IEP created by the CSE lacks results of a current psychoeducational evaluation, 2) the CSE failed to perform a FBA or create a BIP, 3) the goals listed in the IEP are vague and not measurable, 4) the IEP lacks any provision for 1:1 and small group instruction, 5) the IEP does not allow for inclusion opportunities with general education students, and 6) the DOE failed to make the Public School placement available for a tour prior to the commencement of the 12-month 2023-2024 school year.^[86]

As to Prong 1 of the Burlington/Carter standard, I find that the DOE failed to meet its burden at the hearing. The DOE Attorney did not seek to admit any documentary evidence into the record and did not call any witnesses at the hearing.^[87] The DOE declined to offer any evidence at all of a FAPE being provided to the Student for the 2023-2024 school year, and therefore, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating the March 30, 2023 IEP. It is through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child.^[88] The DOE did not present any evidence at all and thus, could not rebut any of the Parent’s allegations.

Moreover, regardless of whether the DOE presented any witnesses or documentary evidence at the hearing, a review of the hearing record supports a finding that the DOE did not provide the Student with a FAPE for the 2023-2024 school year. While it was not the burden of the Parent to show that the DOE failed to provide a FAPE to the Student, the Parent testified that the CSE convened an IEP meeting on March 30, 2023 and the Parent participated in the IEP meeting where the Parent expressed concerns regarding the lack of effort to reevaluate the Student.^[89] The March 30, 2023 IEP states that “formal evaluations were not conducted during this annual review.”^[90] In addition, the evidence shows that formal assessments were discontinued the year prior in 2022. While a psychoeducational evaluation was attempted on January 18, 2022 as part of the mandated triannual evaluation process, the Psychoeducational Evaluation Report dated February 3, 2022 states that on January 18, 2022, the Student “came into the room somewhat whiny, turning to [her paraprofessional] to take her back to class. She [was] convinced to take a seat at the desk and start participating in formal assessment. However, [the Student] refused to cooperate.”^[91] Shortly thereafter, the DOE School Psychologist discontinued formal testing.^[92] There is no evidence in the hearing record showing that the DOE School Psychologist or another DOE evaluator attempted to evaluate the Student again after the one attempt made on January 18, 2022. Therefore, I find that the DOE failed to properly evaluate the Student prior to the March 30, 2023 IEP meeting.

As a result of the March 30, 2023 IEP meeting, the CSE recommended a 8:1:1 special class in a REDACTED (“REDACTED”) school, with adaptative physical education and the related services of occupational therapy, physical therapy, and speech-language therapy, as well as a 1:1 health paraprofessional, all on a 12-month basis.^[93] In addition, the IEP mandated specialized transportation services, a dynamic display speech generating device, a communication application, key guard, desk mount system, case, gait trainer, and a stroller.^[94] The March 30, 2023 IEP recommends the same program as the Student’s previous IEP, which was developed on March 23, 2022.^[95] While the Parent agrees with the Student receiving related services, a 1:1 health paraprofessional, specialized transportation services, a dynamic display speech generating device, a communication application, key guard, desk mount system, case, gait trainer, and a stroller, the Parent did not agree with the recommended 8:1:1 special class in a REDACTED school or with the lack of behavioral programming in the Student’s IEP.^[96] The Parent was concerned that the IEP did not include a FBA and a BIP despite concerns regarding the Student’s behavior challenges.^[97] The Director of the Private School also testified that the Student “absolutely requires” a FBA and a BIP, and that even though the teacher supplied the information to the CSE regarding the Student’s behavior, the CSE still determined that the Student did not require any behavioral programming.^[98]

Moreover, the Student’s goals in the March 23, 2022 and the March 30, 2023 IEPs are the same, and both the Parent and the Director at the Private School disagreed with the goals in the Student’s IEP.^[99] For example, the Director at the Private School testified that the Student’s ELA goal is below her level as the Student “had already mastered the letters of the alphabet at the time of the meeting and had a list of sight words that she was reading as well.”^[100] In addition, while the Student’s IEP has a math goal for the Student to identify coins, the Student has already mastered two coins at the time of the IEP meeting.^[101] Lastly, while the Parent expressed her concerns regarding the Student’s frustration with writing, the IEP includes a writing goal, which both the Parent and the Director at the Private School do not feel is appropriate for the Student considering her aversion to it.^[102]

Furthermore, the March 30, 2023 IEP does not provide for 1:1 instruction despite the Student’s Annual Progress Summary indicating that the Student requires “instruction to be provided in a 1:1 educational setting” with new skills being taught “using applied behavior analysis methodology.”^[103] Both the Parent and the Director of the Private School did not believe the recommended program could provide the Student with the significant levels of individualized instruction and 1:1 support she needs in order to make meaningful progress.^[104]

On June 1, 2023, the Parent, through the Parent’s Attorney, sent a letter to the DOE (“Ten-Day Notice”) expressing her concerns with the CSE’s recommendations, the goals in the Student’s IEP, and the lack of behavioral supports or a plan for behavior intervention.^[105] On June 15, 2023, approximately two weeks prior to the commencement of the 12-month 2023-2024 school year, the DOE sent the Parent Prior Written Notice and the School Location Letter.^[106] According to the Prior Written Notice, the only other program option considered by the CSE was a 12:1:1 special class in a specialized school but the CSE determine that the 12:1:1 special class would not address the Student’s “current academic and developmental needs.”^[107] The Prior Written Notice does not address any of the Parent’s concerns expressed in her Ten-Day Notice.

Despite the Parent’s concerns with the March 30, 2023 IEP, the Parent still considered the program and attempted to tour the Public School prior to the start of the 12-month 2023-2024 school year.^[108] On June 26, 2023, the Parent sent an email to the CSE Site Supervisor explaining that when she communicated with the Public School Parent Coordinator, the only time offered for her to tour the Public School was on July 11, 2023, after the beginning of the 12-month 2023-2024 school year.^[109] The CSE Site Supervisor sent an email to the Public School Parent Coordinator, copying the Parent, to assist them in coordinating a Public School visit.^[110] The Public School Parent Coordinator responded, indicating that July 11, 2023 was the soonest possible date for the Parent to visit because the Public School was “at the end of the school year with graduations and end of year activities.”^[111] Therefore, the Parent was not able to visit the Public School prior to the beginning of the 12-month 2023-2024 school year despite her attempts.

Overall, I find that the DOE failed to offer the Student a FAPE for the 2023-2024 school year. The evidence supports the Parent’s assertions that the Student was not properly evaluated prior to the March 30, 2023 IEP meeting, the CSE did not conduct a FBA or create a BIP despite the Student’s behavioral challenges, the program recommended does not incorporate 1:1 instruction using Applied Behavior Analysis (“ABA”) methodologies, and the Student’s goals were not appropriate and reflective of the Student’s current levels of functioning and academic ability.

Prong 2

Next, I must consider whether the Parent’s unilateral placement at the Private School was appropriate for the Student. The hearing record shows that on July 6, 2023, the Parent executed an Enrollment Contract, enrolling the Student in the Private School for the 12-month 2023-2024 school year.^[112] According to the Enrollment Contract, the total cost of the Student’s tuition was $97,500.^[113] The costs of related services are included in the cost of the tuition.^[114] The Parent is liable for the entire cost of tuition under the terms of the Enrollment Contract and can receive a full refund or a partial refund if the Student withdraws from the Private School to attend an appropriate public school placement.^[115] The Parent has not made any payments to the Private School, so the remaining balance owed to the Private School is $97,500.^[116] The Parent testified that she could not afford to pay the tuition and seek reimbursement, and the Parent’s 2022 Tax Return shows that her income was $REDACTED.^[117]

Here, the DOE Representative argued in the DOE’s closing statement that the Parent failed to meet her burden to show that the Private School is appropriate for the Student.^[118] I disagree. I find that the evidence in the hearing record supports a determination that the Private School is appropriate for the Student for the 12-month 2023-2024 school year. I find that the Private School meets the Frank G. standard and provides the Student educational instruction that is designed to meet the Student’s unique needs and enable the Student to make progress in light of her multiple disabilities.

Primarily, the Private School is appropriate because it provides the Student with individualized instruction in small classes with similarly functioning peers.^[119] This “comes within the IDEA definition of ‘special education,’ namely, ‘specially designed instruction . . . to meet the unique needs of a child.’”^[120] The hearing record shows that the Private School “provides comprehensive educational services for children with special needs and their families.”^[121] The Private School’s instructional methods include 1:1 and small group instruction in order to tailor the program specifically to the Student.^[122] For the 2023-2024 school year, 34 students currently attend the Private School, ages 5 to 14, in 5 special education classrooms.^[123] The Private School provides “differentiated instruction to the students. Students are provided with modifications and accommodations based on their individualized needs, including their behavioral needs.”^[124] The Private School placed the Student in a special education classroom with a total of 6 students, one head teacher, one assistant teacher, and several of the students have 1:1 nurses or paraprofessionals, including the Student.^[125] The other students in the class have a similar learning profile and similar academic skills.^[126] New skills are taught to the Student on a 1:1 basis, and she practices mastered skills in groups of 2 or 3 students.^[127]

Additionally, the Private School provided the Student with instruction from trained teachers.^[128] The law in this circuit is that “a private placement need not provide certified special education teachers…for the disabled student,” but in this case, the Private School nevertheless ensures that its teachers have the training and specialization necessary to teach the Student based on her needs.^[129] The lead teacher in the Student’s classroom has a master’s degree in special education and is a New York State licensed and certified special education teacher and general education teacher.^[130] The assistant teacher in the Student’s classroom is trained in ABA.^[131] The Private School also provides trainings and professional development to all teachers and providers throughout the school year.^[132] Therefore, I find that the teachers have sufficient training to teach the Student based on her unique needs and learning profile.

Furthermore, the Private School developed a specialized program for the Student with individualized goals.^[133] The Student has individualized goals to meet in ELA, reading, writing, math, social studies, and activities of daily living.^[134] The Student’s schedule also includes social skills classes, sensory stations, science, and music.^[135] The Student’s teachers “use the full science and methodology of ABA” to work with the Student 1:1, breaking down skills with repetition and reinforcement, enabling the Student to learn, make progress, and retain new skills.^[136] The math program at the Private School is based on the Functional Academic Curriculum for Exceptional Students, and the teachers also use the Reading Mastery Program to teach the Student decoding skills, comprehension skills, and phonics.^[137]

Moreover, the Private School is appropriate because the Student made progress at the school. Significant educational progress can be a factor weighing in favor of the appropriateness of a parent’s unilateral placement.^[138] While a student’s progress at the private placement is not by itself sufficient to determine whether a placement is appropriate, that progress is a relevant factor in assessing the appropriateness of the placement.^[139] In this case, I find that the Student is making progress during the 2023-2024 school year. According to her Quarterly Progress Reports, the Student is making sufficient progress so that the annual goals established for her are projected to be met by the end of the school year.^[140]

Specifically, in ELA, the Student now only needs minimal prompting on selecting items with two specified characteristics.^[141] The Student is also working on her comprehension skills and “can now identify over fifty common objects and is labeling them in pictures and picture books using an AAC device.”^[142] She has also learned 8 new sight words since the beginning of the 2023-2024 school year.^[143] In math, the teachers are using manipulatives to assist the Student with identifying objects that are larger or smaller, thicker or thinner, and more or less.^[144] The Student is now able to identify coins and knows the value of a penny.^[145] In Social Studies, with the use of a timer, the Student is now able to wait her turn for 5 minutes with no prompting needed, and is now working on increasing the time to 7 minutes.^[146] In activities of daily living, the Student “has made great progress” in reaching her goal in opening and closing doors that have lever handles.^[147]

I find that the tailored curriculum provided to the Student with the 1:1 instruction is critical to enabling her to learn, make progress, and reach her individualized goals.

Furthermore, the Private School is appropriate for the Student because it provided the Student with appropriate related services including speech-language therapy, occupational therapy, and physical therapy, and the Student has shown progress in her related services.^[148] The Director at the Private School testified that the Student’s teachers and related service providers collaborate to determine the best times throughout the day for the Student to receive her related services.^[149] The Student receives all of her related services in a 1:1 format and has shown progress in each service provided.^[150] In speech-language therapy, the Student has shown progress in responding to who, what, where, when, why questions with decreased levels of prompting needed to assist her.^[151] In occupational therapy, the Student “has shown great improvements in her upper body strength/endurance and postural stability.”^[152] Using her communication device, the Student is now able to type her first and last name with “minimal tactile cues at the wrist.”^[153] In physical therapy, the Student “has shown progress with dynamic sitting and standing balance as well as gross motor coordination.”^[154]

In addition, the Private School is appropriate because it provides the Student with necessary behavior intervention so that she can access her education. While the Student engages in behaviors such as throwing objects, crumpling papers, hitting, pinching, and pulling hair, the Private School “developed very specific methods and strategies to keep her on task.”^[155] The Student is on a token system with the use of reinforcements.^[156] There is an interval schedule for which tokens are used and when the Student maintains appropriate behavior and focuses on the task at hand, the Student receives a token.^[157] Once she obtains the designated number of tokens, she is provided access to a desired reinforcer.^[158] The Director of the Private School testified that the token system has been working and the Student is making “excellent progress” with her behavior.^[159]

Overall, the hearing record establishes that the Student’s unique special education needs have been met by the Private School. The instruction offered at the Private School is “reasonably calculated to enable the child to receive educational benefits.”^[160] I find the DOE’s argument concerning the appropriateness of the Parent’s unilateral placement without merit, and I find that the Parent has met her burden in proving that the Private School offers an educational program which meets the Student’s needs under Prong 2 of the Burlington/Carter standard.

Prong 3

Next, I must consider the equities. Overall, I find that the equities favor the Parent. Here, not only did the Parent fully cooperate with the CSE, but the evidence also shows that the Parent fully participated in the IEP process.^[161] The Parent’s cooperation and participation weighs in favor of the Parent’s request for a tuition award under Prong 3 of the Burlington/Carter standard.^[162] Here, the Parent participated in the March 30, 2023 IEP meeting.^[163] Additionally, the Parent shared her concerns with the CSE and provided the necessary Ten-Day Notice of her intent to unilaterally place the Student in the Private School.^[164] The DOE did not submit any evidence at the hearing describing its response to the Ten-Day Notice, if any, and the Prior Written Notice sent to the Parent did not address any of the Parent’s concerns regarding the March 30, 2023 IEP.^[165] Furthermore, I find that the cost of the Student’s tuition is reasonable and direct tuition funding is warranted for the 12-month 2023-2024 school year. Transportation Services

Moreover, the Parent requests that the DOE continue to provide specialized transportation services for the Student to travel to and from home and the Private School for the 12-month 2023-2024 school year.^[166] At the hearing, the DOE Representative did not contest the Student’s entitlement to specialized transportation services. The Student’s March 30, 2023 IEP mandates that the DOE provide the Student with special transportation accommodations and/or services and requires transportation from the closest safe curb location to school.^[167] The IEP also notes that the Student uses walking aids, cannot ambulate steps, requires a lift, and uses a wheelchair or stroller.^[168] It is clear that specialized transportation is necessary for the Student to access her education. Therefore, I find that the Student is entitled to the specialized transportation detailed in the Student’s IEP for the 12-month 2023-2024 school year.

Paraprofessional

Additionally, the Parent requests an Order requiring the DOE to issue RSAs for the Student’s 1:1 health paraprofessional.^[169] At the hearing, the DOE Representative did not contest the Student’s entitlement to the 1:1 health paraprofessional. The Student’s March 30, 2023 IEP mandates that the DOE provide the Student with an individual health toileting paraprofessional daily on a full-time basis.^[170] The IEP notes that the Student requires the assistance of a paraprofessional with her daily living skills, eating, toileting, and navigating the school.^[171] Therefore, I find that the Student is entitled to the 1:1 full-time health paraprofessional for the 12-month 2023-2024 school year, and the DOE shall issue RSAs in order to fund the cost of the paraprofessional.

Assistive Technology Devices and Equipment

Lastly, the Parent requests an Order requiring the DOE to continue providing the Student with assistive technology devices and equipment for the 12-month 2023-2024 school year.^[172] At the hearing, the DOE Representative did not contest the Student’s entitlement to the assistive technology devices and equipment. The Student’s March 30, 2023 IEP mandates that the DOE provide the Student with a dynamic display speech generating device, a communication application, key guard, desk mount system, case, gait trainer, and stroller.^[173] The IEP also notes that the Student uses her device to communicate and is able to navigate the device when she wants to request something.^[174] The Director at the Private School testified that the Student uses her device throughout the entire day, everywhere she goes. The Student uses it to be able to access the curriculum and she uses it “socially, academically, and to communicate throughout the day.”^[175] I find that the Student is entitled to a dynamic display speech generating device, a communication application, key guard, desk mount system, case, gait trainer, and stroller as detailed in her IEP for the 12-month 2023-2024 school year.

ORDER

Based upon the above Findings of Fact and Decision, it is hereby:

1. ORDERED that Parent’s claim for direct tuition funding for the Student’s unilateral placement at the Private School is GRANTED in full for the 12-month 2023-2024 school year. The New York City Department of Education shall directly pay the Private School in the amount of $97,500.00 within 35 days of the date of this Order.

2. ORDERED that the New York City Department of Education shall provide to the Student, throughout the 12-month 2023-2024 school year, appropriate round-trip special education transportation services between the Student’s residence and the Private School with pickup and drop off from the closest safe curb location. The DOE shall fund appropriate transportation consistent with this Order for any time the DOE fails to provide such transportation.

3. ORDERED that the New York City Department of Education shall issue Related Service Authorizations for the Student’s full-time 1:1 paraprofessional for the 12-month 2023-2024 school year.

4. ORDERED that the New York City Department of Education shall continue to provide the Student with assistive technology devices, equipment and/or services set forth in the March 30, 2023 IEP including but not limited to a dynamic display speech generating device, a communication application, key guard, desk mount system, case, gait trainer, and a stroller for the 12-month 2023-2024 school year.

SO ORDERED.

DATED: December 7, 2023

Robin Levin, 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 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 – EXHIBITS ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Impartial Hearing Request 6/30/2023 9 pages

B. Pendency Implementation Form 7/6/2023 1 page

C. Individualized Education Program 3/30/2023 39 pages

D. Speech and Language Therapy Report 3/10/2023 3 pages

E. Occupational Therapy Report 3/23/2023 3 pages

F. Physical Therapy Report 3/24/2023 3 pages

G. Teacher Report 4/2023 4 pages

H. Psychoeducational Evaluation 1/18/2022 3 pages

I. Letter to the Committee on Special Education 6/1/2023 6 pages

J. School Location Letter 6/15/2023 2 pages

K. Prior Written Notice 6/15/2023 4 pages

L. Email from Committee on Special Education 6/26/2023 2 pages

M. Enrollment Contract 7/6/2023 4 pages

N. Program Description Undated 3 pages

O. Class Profile 2023-2024 2 pages

P. Class Schedule 2023-2024 1 page

Q. Goals and Objectives 2023-2024 7 pages

R. Quarterly Progress Reports 8/2023 3 pages

S. Payment Affidavit 8/29/2023 1 page

T. Tax Return 2022 2 pages

U. Individualized Education Program Affidavit in Lieu of Direct Testimony- School 3/23/2022 37 pages

V. Director 10/27/2023 15 pages

W. Affidavit in Lieu of Direct Testimony- Parent 10/27/2023 5 pages

DOE EXHIBITS

None

IHO EXHIBITS

None

Footnotes

[1] Exhibits will be referred to as “Ex.” followed by lettered designations for Parent’s Exhibits and numbered designations for DOE’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parents’ Exhibit A, page 1, will be referred to as (Ex. A-1). Transcripts will be referred to as “Tr.” followed by the page number(s) within the transcript.

[2] Ex. C-1.

[3] Ex. A. I find that all of Parent’s claims can be resolved under the IDEA, and claims brought pursuant to Section 504 are otherwise subsumed.

[4] Id.

[5] Ex. A-2.

[6] Ex. A-2-4.

[7] Ex. A-5.

[8] Id.

[9] Ex. A-6.

[10] See Pendency Implementation Form dated July 6, 2023.

[11] Tr. 1-9.

[12] Id.

[13] Two extensions of the compliance date were granted due to settlement negotiations and witness availability (See Order of Extension dated 9/5/2023 and Order of Extension dated 10/2/2023).

[14] The hearing was originally scheduled for October 31, 2023, but the Parent’s Attorney requested an adjournment via email due to witness availability. On consent of the DOE, I adjourned the hearing to November 6, 2023.

[15] The Parties consented to the observation of the hearing by an Impartial Hearing Officer for training purposes only.

[16] Tr. 41.

[17] Tr. 44, 52, 77. A detailed list of the admitted exhibits is attached to this decision as Appendix A, “Exhibits Entered Into the Record.”

[18] Tr. 47-50.

[19] Tr. 50.

[20] Tr. 54-76.

[21] Tr. 79.

[22] Tr. 79-94. I also granted a request to extend the compliance date (See Extension Order Report dated 11/6/2023).

[23] Tr. 80-81.

[24] Tr. 81-84.

[25] Tr. 84-88.

[26] Tr. 88-91.

[27] Tr. 91-94.

[28] Ex. A.

[29] Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 376 (2d Cir. 2014) (quoting Reyes ex rel. R.P. v. New York City Dep’t of Educ., 760 F.3d 211, 215 (2d Cir. 2014)).

[30] 20 U.S.C. § 1415(b)(6)(A).

[31] Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16, 114 S. Ct. 361 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985).

[32] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).

[33] 34 C.F.R. §300.13.

[34] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

[35] Oberti v. Board of Educ., 995 F.2d 1204 (3rd Cir. 1993).

[36] 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2).

[37] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

[38] Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998).

[39] Endrew F.,137 S.Ct. 988, 999.

[40] 34 C.F.R. §300.324(b)(1)(i); 8 N.Y.C.R.R. §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010).

[42] 34 C.F.R. § 300.320(a)(4); 8 N.Y.C.R.R. 200.4(d)(2)(v).

[43] See 8 N.Y.C.R.R. 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.

[44] J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).

[45] NY Educ. Law § 4404(1)(c)).

[46] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007).

[47] Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).

[48] Frank G., 459 F.3d at 364-65; Gagliardo, 489 F.3d at 112.

[49] Frank G., 459 F.3d 356, 364; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).

[50] Frank G., 459 F.3d 356, 364; Gagliardo, 489 F.3d 105, 112.

[51] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 C.F.R 300.39(a)(1); 8 N.Y.C.R.R. 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).

[52] Frank G., 459 F.3d at 364; See Gagliardo, 489 F.3d at 112.

[53] Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16, 114 S. Ct. 361 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985).

[54] Gagliardo, 489 F.3d 105, 112,115; Walczak142 F.3d 119.

[55] See Carter, 510 U.S. at 16.

[56] J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011).

[57] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47 (2009).

[58] Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007).

[59] D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 (S.D.N.Y. 2011).

[60] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

[61] Carter, 510 U.S. at 16; see also J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) (“[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”).

[62] See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (Parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”).

[63] Connors v. Mills, 34 F.Supp.2d 795, 799, 805-06 (N.D.N.Y. 1998); See Mr. & Mrs. A. v. New York City Dep’t. of Educ., 769 F. Supp. 2d at 427 (Stating that where the Burlington factors are met, the court may award retroactive direct payment of private school tuition.)

[64] Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir 1997) (citations omitted).

[65] NYS Educ. Law §§ 4401(1); 4402(4)(a); see also NYS Educ. Law § 4401(2); 8 NYCRR § 200.1(ww).

[66] Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 (5th Cir. 1986).

[67] “Special Transportation for Students with Disabilities,” VESID Mem. [Mar. 2005], available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf).

[68] See Donald B., 117 F.3d at 1375.

[69] 8 N.Y.C.R.R. 200.4(d)(3)(vii); 20 U.S.C. § 1414(d)(3)(B); 34 C.F.R. 300.324(a)(2).

[70] 8 N.Y.C.R.R. 200.4(d)(3)(vii).

[71] Standard Operating Procedures Manual (SOPM), Pages 63-64, November 16, 2021 available at Special Education Standard Operating Procedures Manual (nyced.org)

[72] Id.

[73] Id.

[74] NYS Educ. Law § 4401(2)(a).

[75] 20 U.S.C. § 1401(1)(A).

[76] 20 U.S.C. § 1414(d)(3)(B)(v); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 647 (S.D.N.Y. 2011).

[77] 34 C.F.R. § 300.105(b).

[78] J.C. ex rel. C. v. New Fairfield Bd. of Educ., 2011 U.S. Dist. LEXIS 34591, 2011 WL 1322563, at *18 (D. Conn. Mar. 31, 2011) (citation and internal quotation marks omitted).

[79] Id.

[80] Ex. W-1; Ex. V-3.

[81] Ex. C-1.

[82] Ex. V-3.

[83] Id.

[84] Id.

[85] Id.

[86] Ex. A.

[87] Tr. 41, 50.

[88] Endrew F., 137 S.Ct. at 1002.

[89] Ex. W; Ex. C-38.

[90] Ex. C-1.