NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 249807
Student's Name: [REDACTED]
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Requested By: Parent
Date of Hearing: 08/04/2023 Pre-Hearing Conference
08/14/2023
08/18/2023
Actual Record Close Date: 08/24/2023
Decision Date: 08/24/2023
Hearing Officer: Daniel Ajello Esq. Hearing Officer‘s Finding of Fact & Decision
NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/04/2023
(All Parties Appeared Via Teleconference)
[REDACTED], Attorney — Student
None — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/14/2023
(All Parties Appeared Via Teleconference)
[REDACTED], Attorney — Student
[REDACTED], — Parents
[REDACTED], — Parents
[REDACTED], — Student
Assistant Principal, [REDACTED] Academy — Student
[REDACTED], Ph.D., Psychologist — Student
None — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/18/2023
(All Parties Appeared Via Teleconference)
[REDACTED], Attorney — Student
[REDACTED], — Parents
[REDACTED], — Parents
[REDACTED], Psychologist — Student
[REDACTED], — Student
Assistant Principal, [REDACTED] Academy — Student
[REDACTED], ESQ., District Representative — DOE
Hearing Officer‘s Finding of Fact & Decision — DOE
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
EX. DATE NAME OF DOCUMENT Page(s)
Entered 08/04/2023
A 07/01/23 Due Process Complaint (DPC) 7
Entered 08/14/2023
B 03/09/23 Neuropsychological Evaluation by Dr. [REDACTED], Ph.D. 16
C UNDATED [REDACTED] Academy Program Description
F 06/16/23 Acceptance Letter 1
G 08/14/23 Enrollment Contract 2
H 08/07/23 Tuition Affidavit 1
I 08/14/23 Affidavit of [REDACTED] (Curriculum Vitae Attached) 14
J 08/18/23 Affidavit of [REDACTED], Ph.D. (Curriculum Vitae Attached) 9
K 08/14/23 Affidavit of [REDACTED] 4
L 2023 1040 Parent’s Income Tax Return 2022 2
DEPARTMENT OF EDUCATION (DOE)
None
IMPARTIAL HEARING OFFICER
Entered 08/04/2023
I Notice of Appointment, 07/06/2023, 4 pages
II Teleconference Notice, 07/06/2023, 1 page
III Notice of Appearance, 08/03/2023, 1 page Hearing Officer‘s Finding of Fact & Decision
INTRODUCTION
On 07/06/2023, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.
Pre-Hearing Conference was held, on 08/04/2023.
Parent Attorney advised the IHO that though allegations, of a denial of FAPE, cover the 2223 and 23-24 school years, the relief sought is focused on the 23-24 school year. (T 5)
Hearing was set, and continued, on 08/14/2023, to allow an opportunity for the DOE to defend against the allegations contained in the DPC. (Ex A)
At Hearing, of 08/14/2023, the DOE did not appear, or otherwise defend against the allegations contained in the DPC. (Ex A)
Hearing continued, and concluded, on 08/18/2023.
Appended to the record are lists of persons in attendance and the documents received in evidence.
The Due Process Complaint (DPC) alleges a failure of the DOE to provide an appropriate IEP and educational placement for the 22-23 and 23-24 school years. (Ex A 1)
Relief, and focus of the Hearing, is limited to the 23-24 school years.
Parent allegations include:
- A review of the Student’s educational history (Ex A 2-3);
- On June 15, 2023, the Committee on Special Education (CSE) convened an annual IEP review meeting to recommend an appropriate educational program and placement for the 2023-2024 school year;
- The CSE classified the student with Autism and recommended a twelve-month placement in a special education class with a 6:1+1 student to teacher ratio with related services of Adapted Physical Education (APE) 2 times per week; Occupational Therapy (OT) 2x30 1:1; Speech Language Therapy (SLT) 2x30 1:1 and 1x30 3:1; Parent Counseling and Training (PCAT) 4 times per year; Hearing Officer‘s Finding of Fact & Decision and assistive technology in the form of a speech generating device in a NYC DOE Specialized School (District 75) (Ex A 3);
- The Parent alleges a variety of DOE failures relating to the IEP and its offer of FAPE, including: Procedural and Substantive Violations. (Ex A 3-4)
Parent seeks relief that includes:
• The DOE failed to provide the student with substantive and procedural FAPE for the 2022-2023 school year;
• The DOE failed to provide the student with substantive and procedural FAPE for the 2023-2024 school year
• The [REDACTED] Academy is an appropriate educational placement for the student for the 2023-2024 school year;
• The parent is entitled to tuition reimbursement and/or direct prospective
/retrospective tuition funding of the student’s tuition at the [REDACTED]
Academy (Unilateral Placement – UP) for the twelve-month program of the 2023- 2024 school year;
• The student is entitled to related services and door-to-door transportation services necessary for her to receive FAPE at the [REDACTED] Academy for the 2023-2024 school year; and
• The parent is entitled to the cost of independent educational assessments and/or privately obtained evaluations necessary for the student to receive FAPE for the 2023-2024 school year.
(Ex A 5)
Parent Attorney presented allegations, in the DPC, for the 22-23 school year to serve as additional basis of relief. Additionally, evaluations are no longer sought. (T 49-50)
Regarding transportation, the Parent seeks confirmation of the DOE obligation to provide transportation for the Student, for the 23-24 school year. (T 50)
The Student missed some of the intended 12 month school year, due to a lack of transportation. (T 51) Hearing Officer‘s Finding of Fact & Decision
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 POSITION OF EACH PARTY
The DOE did not defend any offer of a Free Appropriate Public Education (FAPE), for the Student, for the 23-24 school year.
The DOE made closing arguments which included:
- “It should be noted that the Parent's evidence focuses almost exclusively on the 2023/2024 school year IEP. And there is virtually no evidence about the 2022/2023 IEP.”; and
- “Because the 2023/2024 school year does not begin for this student until September, all of the Parent's evidence about the appropriateness of the [REDACTED] program is prospective, and the DOE asserts speculative. There is no actual evidence of the program that was provided for the student, only was expected to be provided, and no evidence of how the program benefits the student, only an unspecified statement by the [REDACTED] witness that [REDACTED] "will make progress" during the upcoming school year.” (T 48-49)
The focus of this case is indeed the 23-24 school year.
Evidence presented does establish, as considered below, that the UP program is appropriate for the Student, for the 23-24 school year. Evidence regarding the UP program, or any other recommended program for an upcoming school year, is always going to be prospective. The question, as considered below, is whether or not the information provided, at the time, results in a reasonable appropriate Student program and placement, which will allow for the opportunity of the Student to make progress.
At Hearing, the Parent supported its position via Documentary Evidence and Oral Hearing Officer‘s Finding of Fact & Decision
Testimony. The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below:
[REDACTED], Psychologist
Witness completed Neuropsychological Evaluation (Ex B), and provided Testimony via Affidavit. (Ex J.
Witness also offered Testimony, at Hearing, of 08/18/2023, which included:
- Student academic functioning is significantly impacted by nonverbal ability, and impacted by language delays, visual-motor integration skills and motor coordination (T 28);
- Student began receiving Applied Behavior Analysis since pre-school (T 29);
and
- Student needs “one-to-one intervention because of her cognitive, language, and social limitations. Students at her level with autism benefit from an ABA approach…because she is intellectually limited, she is not able to make meaningful progress in a larger group setting. ABA would break down specific tasks, whether it's academic, social, language, or activities of daily living into smaller components…And she would learn by building on smaller tasks to develop the larger task with - with an instructor. And her motivation would be guided by the kind of reinforcement that she would get as she was developing those skills. So I think that's really the only way for her to make meaningful progress is to have one-to-one ABA throughout the day.” (T 30)
[REDACTED], Assistant Principal, [REDACTED] Academy
Witness provided Testimony via Affidavit (Ex I), and at Hearing, of 08/18/2023, which included:
- Initial screening of students: “is typically probably about an hour. The parents come in for a parent tour. And the student comes in for a screening. And at that point, we look at the documents that the parents provide. We find a classroom that we feel is suitable. And then the student is screened by the Hearing Officer‘s Finding of Fact & Decision classroom teacher and the related service providers.” (T 35);
- Daily speech therapy is not provided, as recommended: “Because we - we were admitting her to a [REDACTED] classroom, which is for our students that do have speech impairments. So there's a lot of rich language use in the classroom. So the service providers do push into the classroom as well. So we thought four would be enough with that therapist. And then she's in a language-rich environment five days a week.” (T 36); and
- Witness was asked why she is sure the Student can make progress, at the UP:
“Because…I've been there for almost 13 years. I do have experience with these students. I read over all of her files. I've read over her DOE files and her neuropsych. And she's definitely a student that requires a small, structured class setting. She definitely requires one-to-one teaching, re-teaching. She requires ABA and discrete trial to learn. And she requires all of the related services that we recommended.” (T 37)
[REDACTED], Parent
Witness provided Testimony via Affidavit (Ex K), and at Hearing, of 08/18/2023, which included:
- At the subject IEP meeting the team did not indicate what Student progress was made (T 39);
- The meeting included the Parent being advised that ABA does not teach through ABA. (T 40);
- At the subject IEP meeting the Parent wanted to Student to be taught using ABA: “because that seemed to work for her when she had it before.” (T 47);
and
- Parent would have accepted a DOE ABA program, for the Student. (T 47)
A 07/01/23 Due Process Complaint (DPC)
Details allegation of a denial of FAPE, and sets forth areas of sought after relief. Hearing Officer‘s Finding of Fact & Decision
B 03/09/23 Neuropsychological Evaluation by Dr. [REDACTED], Ph.D.
Evaluation presents Student history, testing procedures, and testing results. (Ex B 1-6)
Report confirms Student is in need of special education services, as she is diagnosed with Autism Spectrum disorder with accompanying intellectual and language impairment. (Ex B 8)
Considering Student’s “language, social, communication, cognitive, and adaptive functioning deficits, she continues to meet diagnostic criteria for Autism Spectrum Disorder, Level 3, requiring very substantial support, with accompanying intellectual and language impairment (DSM-5 299.0;ICD-10 F84.0).” (Ex B 9)
Report notes that the Student: “benefitted from ABA as a younger child to develop her expressive language. She has made limited progress in her current classroom setting, and throughout her time in school because she has not received individualized attention in the form of ABA intervention. She has limited ability to learn in the larger group. [Student] needs this 1:1 intervention to make progress with communication, social skills, and activities of daily living, without which her development will remain stagnant.” (Ex B 9)
This supports Parent assertion, and that of the UP, that ABA is essential to the Student program, if she is to be expected o make progress.
Evaluation recommends:
- “placement in a small, highly-structured, special education classroom within a small and specialized school for children with Autism. In this setting, she needs to be provided with educational programming that emphasizes an Applied Behavior Analysis (ABA) model, or similar behaviorally-focused instruction, and provides high levels of 1:1 instruction and support. [Student]
requires a specialized education program that focuses on educating children who share her needs.” (Ex B 9);
- Speech Language Therapy; and
- Picture Exchange Systems (PECS). (Ex B 10)
C [REDACTED] Academy Program Description Hearing Officer‘s Finding of Fact & Decision
General characteristics, of the UP, include:
- Academic and Social Emotional components (Ex C 1)
- ABA
- Discrete Trial Teaching (DTT)
- Sensory Integration
- Collaborative Problem Solving (CPS) (Ex C 4);
- Real Time Functional Therapy (RTFT)
- Extended Student and Family Support (Ex C 5)
- [REDACTED] (IAIC) Program combines academics with an emphasis on social thinking and vocational or post secondary opportunities; follows New York State Common Core standards; and is individualized (Ex C 7)
- [REDACTED] ([REDACTED]) focuses on functional academics and life skills to build independence in each child (Ex C 7)
D [REDACTED] Academy [REDACTED] Program Overview
Reviews characteristics of the Student program, including:
- [REDACTED] (IAIC) Program combines academics with an emphasis on social thinking and vocational or post secondary opportunities; follows New York State Common Core standards; and is individualized; and
- [REDACTED] (CPS) to address challenging behaviors.
E [REDACTED] Academy Providing Solutions for Student’s with Autism and
Neurobiological Disorders
Reviews characteristics of the Student program, including: - Student profiles, including Autism - Staff and Training (Ex E 1) - Methodology - Curriculum - Class Size and Ratios (Ex F 2)
F 06/16/23 Acceptance Letter Hearing Officer‘s Finding of Fact & Decision
Student is accepted into the UP Behavioral, Academic and Social Enrichment (B.A.S.E.) classrooms with related services of speech/language therapy (3x30, Individual) (1x30, Group), occupational therapy (2x30, Individual), a 1:1 paraprofessional and parent counseling/training.
G 08/14/23 Enrollment Contract
Student 23-24 UP Tuition is evidenced to be $[REDACTED].00. (Ex G 1)
Parent is obligated to payment, under the terms of the Contract, via signature. (Ex G 2)
H 08/07/23 Tuition Affidavit
Student 23-24 Tuition balance remains at $[REDACTED].00.
I 08/14/23 Affidavit of [REDACTED] (Curriculum Vitae Attached)
Principal, of the UP, provides Testimony that includes:
- A review of professional experience and qualifications (Ex I 2-3, 12-14);
- A review of the UP mission, objectives, specialized student programming, and curriculum (Ex I 3-4);
- Details regarding UP staff , including a school psychologist and paraprofessionals (Ex I 4);
- Description of ABA, CPS and Sensory Integration, each of which are utilized at the UP (Ex I 5-6);
- Each Student, at the UP, is provided an individualized behavior management plan (BIP) and Social Skill classes (Ex I 6);
- Student is enrolled in the UP [REDACTED] Program, for the 12 month 23-24 school year (Ex I 9);
- Student program was delayed due to an inability to obtain transportation (Ex I
9);
- Student attends the [REDACTED] program and received related services that include: Individual SLT 3x30; Individual OT 2x30; 1:1 behavior management paraprofessional, and PCAT (Ex I 9); Hearing Officer‘s Finding of Fact & Decision
- Recommended ABA is utilized for the Student (Ex I 9-10);
- Student had not made reasonable progress in the DOE D75 program;
- A review of Student levels of academic and communication delays (Ex I 10);
- Initial Student goals were to address non-compliant behaviors, data would be collected for development of a BIP, and progress reports would be provided quarterly for related service therapies (Ex I 10);
- Student would then be introduced to the UP [REDACTED] program, in a 6:1:1 educational setting with support of an individual paraprofessional, and ABA services throughout the day, with SLT and OT (Ex I 10-11);
- Student is expected to respond well to the structured program and ABA intervention (Ex I 11); and
- The UP serves as an appropriate Student placement, for the 23-24 school year, and Student is expected to make progress. (Ex I 2 & 11)
Testimony includes taking into account, and adherence to most of the recommendations made in the Neuropsychological Evaluation by Dr. Beryl Nightingale, Ph.D. (Ex B) (Ex I 9-11)
J 08/14/23 Affidavit of [REDACTED], Ph.D. (Curriculum Vitae Attached)
Pediatric Neuropsychologist provides Testimony that includes:
- Witness qualifications and experience (Ex J 8-9);
- A review of Student testing and results, as detailed in evaluation (Ex B, Ex J 2-
4);
- Recounts recommendations for a small, highly structured, special education classroom for students with Autism, with an emphasis on an ABA model or similarly behaviorally-focused instruction, with a high level of 1:1 instruction and support (Ex J 4-5);
- SLT is recommended;
- Assistive technology is recommended (Ex J 5); and
- Attendance at the 06/15/2023 IEP meeting which Witness believes did not recommend an appropriate program, in large part due to the lack of ABA, with Hearing Officer‘s Finding of Fact & Decision
1:1 instruction. (Ex J 6-7)
K 08/14/23 Affidavit of [REDACTED]
Student’s Paret provides Testimony that includes:
- Previous to the UP the Student attended a Public School D75 program (Ex K
1);
- Parent was concerned with the Student’s lack of progress, and obtained a Student evaluation (Ex B, K 1);
- It was explained, to the Parent that: “ABA is the strongest teaching methodology proven to be effective for children with ASD. It involves 1:1 teaching, reinforcement, visual aides, modeling, and a high degree of practice.”
(Ex K 3);
- Parent participated in the IEP meeting, of 06/15/2023, and disagreed with the recommended services, which did not provide ABA (Ex K 2-3);
- Student attendance at the 12 month UP program was delayed due to a lack of transportation (Ex K 3);
- Parent believes the UP will serve as an appropriate 23-24 Student placement, where she will be provided with 1:1 ABA therapy and other instructional supports, which will “improve her attentional skills and make her available for learning.” (Ex K 3);
- UP 23-24 Student Tuition is $[REDACTED].00;
- Family income, for 2022, was $[REDACTED].00;
- Parent has not paid any of the 23-24 Student UP Tuition;
- Family income is not sufficient to pay the full cost of the UP Tuition and then seek reimbursement (Ex K 3); and
- Parent seeks direct DOE funding of the Student’s 23-24 UP Tuition. (Ex K 4)
L 1040 Parent’s Income Tax Return 2022
Parent 2022 year income is set forth as about $[REDACTED].
FINDING OF FACTS AND DECISION
Hearing Officer‘s Finding of Fact & Decision
Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400- 1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A][B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).
Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 Hearing Officer‘s Finding of Fact & Decision
NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). Hearing Officer‘s Finding of Fact & Decision
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]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), 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]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).
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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it Hearing Officer‘s Finding of Fact & Decision offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). 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; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "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'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). 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; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). 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]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have Hearing Officer‘s Finding of Fact & Decision carried their burden of demonstrating the appropriateness of their unilateral placement. 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).
The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["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"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise 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]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]). Hearing Officer‘s Finding of Fact & Decision
Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).
DOE offer of FAPE for the 2023-2024 School Year The DOE opted not to present a defense to the Parent’s allegations.
The district has presented no witnesses in this matter.
The District has not offered any IEP into evidence.
The DOE has not evidenced development of an IEP for the commencement of the 23-24 school year.
DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 23-24 school year.
I find the DOE failed to offer the Student a FAPE for the 23-24 school year.
UP Placement for the 23-24 School Year
Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 23-24 school year.
The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. I find that the Hearing Officer‘s Finding of Fact & Decision documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent.
Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex B, C, D, E, I, J & K and T 28-30, 36-37)
Uncontested statements contained in the DPC, include, that the Student had been recommended to a 12 month program, for the 2022-2023 school year (Ex A 2); and continued to be placed in a 12 month special education program, for the 23-24 school year (Ex A 3).
I find that the UP provides special education services specifically tailored to meet the needs of the Student. I find UP provides an appropriate education and program for the Student for the 23-24 school year.
TUITION FUNDING 23-24 School Year
I find the Parent is entitled to Student’s UP Tuition funding, via the DOE, for the UP, 23-
24 school year.
The DOE has denied a FAPE to the Student for the 23-24 school year.
Student 23-24 UP Tuition is evidenced to be $[REDACTED].00. (Ex G 1)
Parent is obligated to payment, under the terms of the Contract, via signature. (Ex G 2)
Student 23-24 Tuition balance remains at $[REDACTED].00. (Ex H)
Parent DPC serves as an appropriate TDN, (Ex A 4-5)
Parent provides financial information, and testifies she is unable to pay the UP tuition based on her limited income. (Ex K 4 & L)
With regard to fashioning equitable relief, one court has addressed whether it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so (Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). The court held that "[w]here . . . parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Hearing Officer‘s Finding of Fact & Decision
Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769
F. Supp. 2d at 428). The Mr. and Mrs. A. Court relied in part on dicta from earlier cases in which similar claims seeking direct retroactive payment to a private non-approved school were asserted (see Connors v. Mills, 34 F. Supp. 2d 795, 805-06 [N.D.N.Y. 1998] [opining that such financial disputes should be resolved within the administrative hearing process]; see also S.W., 646 F. Supp. 2d at 358-60). The Mr. and Mrs. A. Court held that in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs (Mr. and Mrs. A., 769 F. Supp.2d at 430).
I find the Parent meets the burden of production and persuasion with respect to whether possessing the financial resources to "front" the costs of a unilateral placement and whether they are legally obligated for the student's tuition payments (Application of the Dep't of Educ., 12132; Application of a Student with a Disability, 12-036; Application of a Student with a Disability, 12-004; Application of the Dep't of Educ., 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041).
I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to direct DOE funding of the UP tuition, for the 23-24 school year.
I find the Parent is entitled to direct UP funding as Ordered below.
TRANSPORTATION
The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). 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" (Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]).
Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 16035). If a CSE determines that a student with a disability requires transportation as a related Hearing Officer‘s Finding of Fact & Decision service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]).
Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).
To engage special education services the Student is found to require special education transportation to and from the UP, is sought. (Ex A 5)
Evidence is uncontested that without appropriate transportation the Student was unable to commence special education services in a timely manner. (Ex I 9)
The DOE raises no objection to continuing special education transportation.
I find evidence supports the provision of a special education transportation for the Student for the 23-24 school year.
ORDER
1. The Department of Education (DOE) failed to offer the Student a FAPE for the 23-24 Hearing Officer‘s Finding of Fact & Decision school year.
2. [REDACTED] Academy (UP) provides Student with an appropriate program and placement, for the 23-24 school year.
3. The DOE shall directly fund Student, 12 month, 23-24 Tuition at [REDACTED]
Academy (UP) in the amount of $[REDACTED].00.
4. The DOE shall provide the Student with special education transportation for the 23-24 school year, to and from [REDACTED] Academy (UP).
5. The DOE shall provide Parent with any documents or forms necessary to facilitate payment under this Order, within ten days of the date of this Order.
6. This decision is subject to appeal and review by the State Review Officer. DATED: August 24, 2023
DANIEL AJELLO
DANIEL AJELLO
Impartial Hearing Officer Hearing Officer‘s Finding of Fact & Decision
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. Hearing Officer‘s Finding of Fact & Decision
Footnotes
[2] E UNDATED [REDACTED] Academy Providing Solutions for Student’s with Autism and Neurobiological Disorders 2
[8] D UNDATED [REDACTED] Academy [REDACTED] Program Overview