Impartial Hearing Decision

CASE NUMBER: 601813 - NYC: 249705

FINDINGS OF FACT AND DECISION

Student’s Name ^[1]: [REDACTED] (“Student”)

Date of Birth: [REDACTED]

School District: [REDACTED]

Hearing Requested by: [REDACTED] (“Parents”)

Request Date/Date Complaint Filed: July 3, 2023

Date(s) of Hearing: September 13, 2023 and September 27, 2023

Actual Record Closed Date: October 25, 2023

Date of Decision: November 7, 2023

Date of Distribution if Different than Decision Date:

Hearing Officer: Lisa S. Rusk, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 13, 2023

For the Student:

[REDACTED], Attorney

For the Department of Education:

[REDACTED], Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 27, 2023

For the Student:

[REDACTED], Attorney

[REDACTED], Attorney

[REDACTED], Parent Student

[REDACTED], Executive Director of Education

For the Department of Education:

[REDACTED], Attorney

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parents’ Due Process Complaint (“DPC"), dated June 30, 2023. (Ex. P-A) ^[2]. The record does not contain any evidence of a response by [REDACTED] (hereinafter referred to as “the District”). This IHO was appointed on July 6, 2023. A prehearing conference was held on August 3, 2023, following the resolution period. [REDACTED] appeared on behalf of the Parents. [REDACTED] appeared on behalf of the District. The parties requested the scheduling of a status conference while resolution of the matter was being considered. A status conference was held on August 28, 2023, and the Parents requested that a pendency hearing be held. A pendency hearing was held on September 13, 2023, and a pendency order was issued. [REDACTED] appeared on behalf of the Parents. [REDACTED] appeared on behalf of the District. The hearing on the merits was held on September 27, 2023. [REDACTED] appeared on behalf of the Parents. [REDACTED] appeared on behalf of the District.

Two extensions of the compliance date were granted on the record at the request of the Parent due to the availability of witnesses and for the parties to submit closing briefs. The District had no objection to either extension. On September 13, 2023, the Parents entered into evidence exhibits A-B.^[3] Parent Exhibits C-BB were entered into evidence on September 27, 2023. Two witnesses testified on behalf of the Student, including the Student’s Parent. The District did not make an opening statement, enter any evidence into the record, present any witnesses or crossexamine the Parents’ witnesses (T:44;90-91;111). The Parents submitted a written closing brief on October 25, 2023. The District did not submit a closing brief. The record was closed on October 25, 2023.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq. The DPC also claimed violations of Section 504 of the Rehabilitation Act of 1973, but at the prehearing conference, counsel for the Parents indicated that they were not raising any distinct claims under Section 504 (T:5).

BACKGROUND

The Student was [REDACTED] years old at the time of the filing of the DPC. He is classified by the District’s Committee on Special Education (“CSE”) as a student with autism. For the 12-month 2022-23 school year, the Student attended [REDACTED] (hereinafter referred to as “the private school”). No Individualized Education Program (“IEP”) was entered into the record for the 2023-24 school year. The Parents unilaterally reenrolled the Student at the private school for the 2023-24 school year beginning in July 2023.

ISSUES

In a 19-page DPC, the Parents allege inter alia that the District denied the Student a FAPE for the 2023-24 school year and seek tuition reimbursement for the 12-month program at the private school. The DPC also requests up to one hour per week of counseling (Ex. P-A). The District did not defend its recommendation(s) for the 2023-24 school year. The District stated that it was not challenging the appropriateness of the private school placement, but stated that it was challenging the cost of the programs and ancillary services (T:45-46). At the hearing, the Parents withdrew their request for outside counseling (T:53). Aside from tuition reimbursement, the Parent’s closing brief seeks round-trip District bus transportation (Parent closing brief at pg. 13)4.

4 This request was not made in the Parents’ proposed solution in the DPC, raised in the Parents’ opening statement or discussed during testimony.

FINDINGS OF FACT

[REDACTED], hereinafter referred to as “the Parent” testified that the Student is a “sweet and awesome kid”. He is intensely self-directed, nonverbal and sensory seeking. He requires constant intervention to keep him from putting things in his mouth, climbing on things and hurting himself or others (T:105).

The Student underwent a neuropsychological evaluation in 2019 with an addendum on March of 2020. The report noted his history of regressive, severe autism spectrum disorder and global developmental delays. His full cognitive potential was unknown at the time as he was unable to fully participate in the testing. He presented with significant behavioral needs and aggressive tendencies. His presentation was further complicated by significant speech and language deficits. The report recommended that he receive 1:1 ABA therapy throughout the day in order to make appropriate progress (Ex. P-F-5). His developmental pediatrician also recommended 1:1 ABA therapy (Ex. P-H-2).

The Parent testified that the Student has made slow, but steady progress at the private school. His aggressive behaviors have reduced, he is attending more to instruction and is making progress in activities of daily living such as toileting and handwashing (T:106). He testified that he believed the private school to be highly appropriate. The Parents receive parent counseling and training and are in constant communication with the private school, particularly with regard to the management of his behavior and his toileting schedule (T:109-10). He testified that he cooperated with the District at all times and attended all CSE meetings to which he was invited (T:108). He attended the CSE meeting in February 2023 (T:110-11). The Parent testified that he was seeking tuition reimbursement for the 2023-24 school year (T:107-08). On June 15, 2023, the Parents submitted notice of their intention to place the Student at the private school for the 12-month school year and seek tuition reimbursement (Ex. P-C).

The private school’s Executive Director of Education [REDACTED] (hereinafter referred to as “the Executive Director”) testified that she is certified by the State of New York as a special education teacher birth-12th grade, school administrator and supervisor and school district administrator. She is also a board certified behavior analyst (“BCBA”) with a doctoral notation and a licensed behavior analyst in New York State (T:56; see Ex. P-BB). She described the private school’s program as having its core educational philosophy in applied behavior analysis (“ABA”). There is collaboration across disciplines, including the classroom, speech and language therapy and occupational therapy (“OT”), and individually-tailored plans are created for all students (T:60-61). The students at the school are on the autism spectrum, and many have cognitive, academic, social skills, communication or motor deficits (T:61).

The Executive Director testified that she is familiar with the Student as it is his fourth year in the program. She has worked directly with him, supervised his classroom, worked with staff regarding his problem behaviors and collaborated with his fathers (T:66). She described the Student as “deliciously cute” with limited spoken language and requiring a lot of hands on supervision at all times during the day. He will elope, and requires lots of breaks, including sensory movement breaks (T:67). A lot of their programming focus has been on functional communication using his assistive technology device and collaborating with his speech language therapist. They work on generalized requests or mands (T:68). Academically, he is working on pre-academic skills such as matching. He has a lot of self-management needs and they have focused on his toilet training schedule (T:69). They have also worked on his ability to sit and attend in a group (T:71). The staff utilizes a variety of different prompts with the Student and have been working on fading the prompts gradually (T:72-73). The classroom goals he has been working on are in evidence, as is his current functional behavior assessment conducted by the private school (Exs. P-W, P-X, P-Y, P-Z; T:74; 75).

The school schedule is from 8:45 to 2:45 daily. His day consists primarily of individual instruction with daily opportunities for group instruction. He also receives speech therapy 4 times per week, along with a weekly speech consultation and OT three times per week, with a weekly OT consultation (Ex. P-L). The Executive Director testified to the Student’s participation in his daily schedule (T:76-82). She testified that his class has seven students, one lead teacher and six ABA instructors. His lead teacher has a master’s degree in psychology and is enrolled in a BCBA program. Five of the ABA instructors have bachelor’s degrees in psychology and one has a master’s degree in public administration and is enrolled in a master’s program in special education (T:82-83).

The Executive Director testified that she believes the Student has been making slow and steady progress in his program (T:84). Academically, he is working on prerequisite skills (T:97-98). The Executive Director has reviewed his data frequently and notes the fading of prompts and gaining of independence. She testified that they have targeted six challenging behaviors including, aggression, biting, mouthing objects, elopement, climbing on objects and flopping on the floor. She has seen a nice decrease in some of these behaviors due to the effective interventions being utilized (T:84).

The Executive Director testified that the Student’s speech therapist is licensed in New York State, and his OT is both certified in New York State and nationally (T:85). He has progressed in speech in his use of his assistive technology device and following directions (T:86-87). She testified that he continues to require the full-time, one-to-one instructional program to make progress (T:87). He requires full-time eyes-on, hands-on supervision. His needs necessitate the type of highly individualized program and frequent reinforcement provided by the private school (T:88-89).

The 2023-24 tuition for the private school program, including related services is $181,280 (Ex. P-J-1). To date, the Parents have paid $63,760.

CONCLUSIONS OF LAW

The Individuals with Disabilities Education Act (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 County Sch. Dist. RE-1, 137 S.Ct. 988 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).

In New York State, 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 or payment for services 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)). It is well settled that an appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).(Application of a Child with a Disability, SRO Appeal No. 22-154).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]). If the District is unable to prove that it met its burden under Prong I of the three prong Burlington/Carter test, the Parents in order to meet their burden must establish by a preponderance of the evidence, that the unilateral placement provided “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.

The standard to apply is whether "[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d at 115):

“No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only 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 instruction.” Gagliardo,489 F.3d at 112 (quoting Frank G , 459 F.3d at 364-65).

Finally, under the third prong of the Burlington/Carter test, equitable factors must weigh in the favor of the parents in order to qualify for an award of tuition reimbursement.

ANALYSIS

The District failed to present any evidence or testimony to demonstrate that it offered the Student a FAPE for the 2023-24 school year. I find that the District has admittedly failed to meet its burden under Prong I of the Burlington/Carter test.

Turning to the private school program selected by the Parents, based upon a thorough review of the testimony and evidence as fully set forth above, I find the Parents met their burden that the private school provides the Student with specific instruction to meet his unique special education needs during the 2023-24 school year. The District did not challenge the appropriateness of the private school. The uncontroverted testimony reflects that the private school provided him with specific strategies and supports to address his academic, communication, motor and behavioral needs. It is undisputed that the Student has been making progress in the private school’s individualized 1:1 ABA program. I find that the private school was an appropriate unilateral placement under Prong II of the Burlington/Carter test.

There is no evidence in the record that the Parents did not cooperate with the District or thwarted the CSE process in any way. The Parents provided timely notice of their unilateral placement to the District. The District’s concern regarding whether the total tuition included the cost of related services appeared to be alleviated by the testimony of the Executive Director (T:89-90,91,101-103). The equitable considerations weigh in favor of the Parents.

The request for round-trip bus transportation in the Parents’ closing brief was beyond the scope of the hearing, and I therefore decline to include it in my order.

ORDER

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

1. ORDERED that the District shall reimburse the Parents for tuition paid to the private school in an amount up to one hundred eighty-one thousand two hundred and eighty dollars ($181,280) for the 2023-24 school year upon presentation of proof of payment and attendance.

SO ORDERED.

DATED: November 7, 2023

Lisa Rusk, 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

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

P-A. Letter Evidence Description Date # of Sequence Pages Processed Demand for Due Process 06/30/23 20 pages

P-B. Findings of Facts & Decision 21/22 SY Case # 209223 07/15/22 18 pages

P-C. 10-Day Notice Letter 06/15/23 2 pages

P-D. Receipt of 10-Day Notice Letter 06/15/23 1 page

P-E. Rejection Letter with Fax Confirmation 05/11/22 3 pages

P-F. [REDACTED] Neuropsychological Evaluation 03/04/20 9 pages

P-G. [REDACTED] Developmental Report 09/05/19 5 pages

P-H. [REDACTED] Developmental Report 03/11/21 2 pages

P-I. [REDACTED] Program Description 2023/2024 8 pages

P-J. [REDACTED] Enrollment Contract 05/10/23 5 pages

P-K. [REDACTED] Tuition Affidavit 09/19/23 1 page

P-L [REDACTED] 2023/2024 1

P-M [REDACTED] Classroom Goals 2022/2023 6

P-N [REDACTED] Occupational Therapy Goals 2022/2023 2 [REDACTED] Speech and Language Therapy

P-O 2022/2023 2

Goals

P-P [REDACTED] Educational Progress Report 12/2022 6 [REDACTED] Occupational Therapy Progress

P-Q 12/2022 6

Report [REDACTED] Speech and Language Therapy

P-R Progress Report 12/2022 5

Functional Behavior Assessment &

P-S Corresponding Behavior Intervention Plan 02/2023 15

P-T [REDACTED] Educational Progress Report 06/2023 6 [REDACTED] Occupational Therapy Progress

P-U 06/2023 7

Report [REDACTED] Speech and Language Therapy

P-V Progress Report 06/2023 5

P-W [REDACTED] Classroom Goals 2023/2024 5

P-X [REDACTED] Occupational Therapy Goals 2023/2024 2 [REDACTED] Speech and Language Therapy

P-Y 2023/2024 2

Goals

Functional Behavior Assessment &

P-Z Corresponding Behavior Intervention Plan 09/2023 15

P-AA [REDACTED] Proof of Payments Various 16

P-BB [REDACTED] Resume Undated 9

Footnotes

[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.

[3] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.