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CASE NUMBER: 249815
FINDINGS OF FACT AND DECISION
Case Number: 249815
Student’s Name: [REDACTED] [REDACTED]
School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: July 3, 2023
Date(s) of Hearing: August 3, 2023
September 11, 2023
Actual Record Closed Date: October 2, 2023
Date of Decision: October 16, 2023
Date of Distribution if Different than Decision Date: N/A
Hearing Officer: Jean Marie Brescia, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON August 3, 2023
For the Student:
[REDACTED] [REDACTED], Esq.
For the Department of Education:
[REDACTED] [REDACTED], Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON September 11, 2023
For the Student:
[REDACTED] [REDACTED], Esq.
[REDACTED] [REDACTED], Parent
[REDACTED] [REDACTED], Head of School, [REDACTED]
For the Department of Education:
None
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC”) filed on or about July 3, 2023. Ex. A.[1] On July 7, 2023, I was appointed by the New York City Department of Education to hear this matter. Parent alleges that the Department of Education (the “Department”) failed to provide [REDACTED] with a free appropriate public education (“FAPE”) for the 2023-2024 12-month school year and seeks funding for a unilateral placement of [REDACTED] at the [REDACTED] (“[REDACTED]”), a non-public special education program. Ex. A.
I conducted a prehearing conference on August 3, 2023. Counsel` appeared on behalf of [REDACTED]’s parent and on behalf of the Department. Department’s counsel was asked to provide a telephone number, which was not included in his notice of appearance. Department’s counsel clarified statements set forth in his notice of appearance relating to Parent’s representation in this hearing and other procedural matters. Parent’s counsel clarified the claims and the relief sought in this case. Both counsel provided information with respect to the witnesses to be called to testify at the hearing. Procedural and evidentiary matters, including this Hearing Officer’s rules relating to affidavits, were also discussed.
Parent’s counsel requested that pendency be addressed; Department’s counsel stated that the Department did not object to Parent’s position regarding pendency but was unable to indicate when the Department would implement [REDACTED]’s pendency entitlements. Parent’s counsel was advised that, should the parties be unable to resolve pendency, Parent’s counsel was to request a pendency hearing.
At the prehearing conference, the hearing on the merits was scheduled for September 11. This date was mutually agreed upon by the parties. I directed counsel to be prepared to present their respective clients’ cases in the event that the parties had not settled the case or were not working productively on a settlement. I informed counsel that if, on September 11, the parties were engaged productively in settling the case, I would grant one adjournment for the purpose of finalizing a settlement.
On September 3, counsel for [REDACTED]’s parents informed Department’s counsel and me that pendency remained unresolved. IHO Ex. I; Tr. 30. Department’s counsel responded that he would sign off on the pendency document and that he had an “urgent conflict” on September 11, the scheduled date of the hearing. He did not request an adjournment or an extension of the compliance date. IHO Ex. I; Tr. 31-33.
In follow up-emails, Department counsel reiterated that there as “NO way [he would] be able to make it” to the hearing (emphasis in original). He did not request an adjournment or an extension of the compliance date. IHO Ex. I. I responded with (a) a reminder that the parties had agreed to a full evidentiary hearing on September 11, with both parties presenting their cases, unless the settlement process was moving forward, (b) a reminder that the Department had not requested an adjournment of the September 11 hearing date, and (c) a reminder that there was an upcoming compliance date. Again, Department’s counsel failed to request an adjournment of the hearing or an extension of the compliance date. IHO Ex. I.
Department’s counsel responded that he had a medical-related appointment (the first time a reason was given for his unavailability on September 11) and concluded with the following sentence: “[s]o just a heads up that the department will not be able to appear on September 11.”
I would have granted an adjournment request for the reason that Department’s counsel eventually provided; but, again, there was still no adjournment request from the Department or a request for an extension of the compliance date.
In the absence of a request for an adjournment or a request for an extension of the compliance date, the hearing on the merits proceeded on September 11, counsel for [REDACTED]’s parent and [REDACTED]’s parent appeared. The Department did not appear by counsel or a non-attorney representative. The procedural history of the case was recounted on the record, and pendency was addressed. Tr. 25-34, 42. Parent’s counsel had not received a signed pendency form from Department’s counsel; as a result, I conducted a pendency inquest prior to conducting the hearing on the merits. Tr. 40-42. I issued an Order on Pendency on September 11, after the conclusion of the hearing.
Parent’s counsel presented an opening statement. Parent’s exhibits A through U were admitted in evidence.[2] Dr. [REDACTED], Head of School, [REDACTED], and [REDACTED]’s mother testified. Parent’s counsel presented a closing statement on the record.
Parent’s counsel subsequently forwarded, at the Hearing Officer’s request, updated school progress reports. See Tr. 113-114. These documents were forwarded by Parent’s counsel to both the Hearing Officer and Department’s counsel, on September 11 (after the hearing). When the Department did not interpose any objections to the admission of these documents, these documents were admitted in evidence on October 2 as Parent’s exhibits V through Y. At the Hearing Officer’s request, Parent’s counsel also forwarded [REDACTED]’s IEP, which was admitted in evidence as IHO Exhibit II.
Parent requested a single extension of the compliance date, and a written Order of Extension was issued on September 11, 2023. The reasons for granting the extension are set forth in the Order. The record closed on October 2, upon the admission of IHO Exhibits I and II in evidence.
JURISDICTION
The due process hearing was held, and a decision in this matter is now 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. Part 300, and New York State Education Law § 4404, and its implementing regulations, 8 N.Y.C.R.R. Part 200.
[REDACTED]’s parent consented to the transmission of this decision by email.
ISSUES
[REDACTED]’s parent challenges the Department’s failures to provide [REDACTED] with a FAPE for the 2023-2024 12-month school year and requests direct tuition funding for a unilateral placement. At the hearing, the Department did not avail itself of the opportunity to defend the special education program that it offered to [REDACTED] for the 2023-2024 12-month school year, nor did it seek the opportunity to do so by requesting an adjournment. Therefore, the issues to be resolved in this proceeding are:
1. What is the import of the Department’s failure to defend its IEP for [REDACTED]?
2. Is [REDACTED]’s parent entitled to funding for the costs of [REDACTED]’s attendance at [REDACTED]?
a. Does a preponderance of the evidence demonstrate that the program at [REDACTED] meets [REDACTED]’s identified and unique special educational needs?
b. Does [REDACTED]’s parent have an obligation to pay tuition to the school such that she has standing to seek direct funding of [REDACTED]’s tuition?
c. Do the equites otherwise support [REDACTED]’s parent’s entitlement to relief in this proceeding?
FINDINGS OF FACT
1. [REDACTED] is a [REDACTED]-year old boy who is eligible for special education and services under the IDEA and whose disability, for the purposes of the IDEA, is classified as autism. IHO Ex. II at 1.
2. [REDACTED] is diagnosed with [REDACTED], [REDACTED], and a [REDACTED]. Ex. C at 1; Ex. F at 1, 8. He struggles with significant challenges in the areas of communication, comprehension, social and play skills, fine motor and ADL skills, gross motor skills, following directions, executive functioning, attention, sensory processing, and self-regulation. Tr. 99; IHO Ex. II; Ex. C passim; Ex. D passim; Ex. F passim.
3. He also demonstrates maladaptive behaviors (including aggression, perseverative behaviors, frustration-related responses, and self-directed behaviors) that interfere with his learning. Ex. C at 1; Ex. D at 2-3; Ex. E passim; Ex. F at 7.
[REDACTED]’s Educational History
4. [REDACTED] received Early Intervention services starting when he was eighteen months old. He received 20 hours per week of ABA, and he also received speech, occupational and physical therapies. Tr. 104-105; Ex. D at 2.
5. When [REDACTED] transitioned to CPSE services, he was recommended for, and attended, an 8:1:3 center-based preschool program that utilized ABA. Tr. 105-106.
6. When [REDACTED] was transitioning to kindergarten, the Department was unable to locate a school placement for him and provided his parent with a “Nickerson letter.” Tr. 106.
7. [REDACTED] was ultimately accepted at, and attended, the Department’s [REDACTED] program (at two different locations) for three school years.[3] Tr. 106-108; Ex. C at 1.
8. [REDACTED] did not utilize ABA; [REDACTED] demonstrated behaviors and other difficulties at [REDACTED] that school staff were unable to “handle,” so they would call [REDACTED]’s parent to pick him up from school. [REDACTED] did not make progress at [REDACTED], and his maladaptive behaviors became more serious. Tr. 98, 107-108; see also Ex. E at 5-8; Ex. F at 7.
August-September 2022 Evaluation
9. A neuropsychological evaluation conducted in August and September 2022 revealed that [REDACTED]’s “overall intellectual functioning was very delayed.” Ex. F at 8 (see also 4-5). Verbally-based measures were in the “extremely low range,” with his expressive language “somewhat better developed” than his receptive language; he was able to follow one-step directions; but two-step directions “overwhelmed” him. Ex. F at 8; see also F at 10-12. This evaluation also indicated that:
b. [REDACTED] had difficulties with motivation to complete tasks and with attentiveness. Ex. F passim.
c. [REDACTED]’s academics were delayed and were impacted by his language challenges and attentional difficulties. He could read single words but was unable to understand short sentences. Ex. F at 8.
d. [REDACTED] could spell some words, write dictated sentences, but was unable to write an original sentence. Ex. F at 8.
e. [REDACTED] could add and subtract single digit numbers. Ex. F at 8.
f. [REDACTED]’s social and communication functioning deficits were “severe.” Ex. F at 8.
g. [REDACTED]’s ADL skills were “extremely delayed.” Ex. F at 8.
10. The psychologist conducting the above-reference evaluation recommended that [REDACTED] attend a small class of no more than eight students in a highly structured special education school that provided intensive ABA therapy and support and intensive speech and language therapy, occupational therapy, a functional behavioral assessment (“FBA”), and an individualized behavior plan. Ex. F at 8-9.
[REDACTED]’s Enrollment at [REDACTED]
11. [REDACTED] was enrolled at [REDACTED] in September 2022 and attended [REDACTED] for the remainder of the 2022-2023 school year. Tr. 59.
12. [REDACTED] is a non-public special education school enrolling students from five to fifteen years of age and providing those students with a “comprehensive,” evidence-based and systematic applied behavior analysis (“ABA”) learning environment, small special education classes, low student:teacher ratio, intensive integrated related services of speech and language therapy, occupational therapy, physical therapy, and counseling; and
“systemic and consistent support” to improve attending skills, self-regulation, and “rate of learning.” Tr. 54, 57-58, 79; see also Ex. J.
13. Most of the students at the school have been diagnosed with an autism spectrum disorder; some students have been diagnosed with speech impairments, learning disabilities or other developmental disabilities. Tr. 57.
14. Dr. [REDACTED], the [REDACTED] head of school, is a Board-Certified Behavior Analyst and has a doctoral degree in behavior analysis and behavior disorders and holds the following New York State certifications: school building leader, Licensed Behavior Analyst, and general and special education. Tr. 51-52.
15. All teachers at the school have one or more of the following certifications: special education, BCBA and/or LBA. Tr. 58-59.
16. All related services providers are licensed in their respective fields. Tr. 59.
17. At [REDACTED], school staff conduct an FBA and develop a behavior intervention plan (“BIP”) for each student; develop and implement proactive and multidisciplinary behavior procedures; utilize ABA to “ensure effective and efficient” teaching and learning; collect data; and monitor and graph data to modify (when appropriate) and improve teaching and to determine if programs are implemented consistently and students are making progress. Tr. 54-57, 81.
18. School staff individualize each student’s educational program based upon the student’s areas of deficits in order to target and address that student’s particular educational and developmental “gaps.” Tr. 70-71. They create an individual plan for each student with goals tailored to the student’s needs. Tr. 82-86; Ex. O.
19. School personnel communicate weekly via email with parents and provide monthly parent training and counseling in order to promote parents’ involvement in their children’s education and to promote parents’ carrying over strategies and goals to the home environment so that children can use skills learned at school outside of the school setting. Tr. 55-56, 71-72, 101-103.
20. At the time of his admission to [REDACTED] in September 2022, [REDACTED] demonstrated “high rates of self-harming and aggressive behaviors, due to his delayed language development and self-regulation challenges.” Tr. 61.
21. He engaged in high rates of aggression towards peers and adults, particularly when he was unable to express his wants and needs and/or experienced frustration. These behaviors included smacking with an open hand, and pushing. He also would tantrum, scratch, yell, throw himself on the floor, and throw objects. These behaviors occurred, on average, ten times per day. Tr. 61-62, 64, 99.
22. School staff promptly conducted an FBA and implemented proactive and systematic behavioral interventions. [REDACTED] benefitted from these interventions: his self-regulation improved, and he was learning to remain on task and learn. Tr. 62; see also Tr. 87-89; Exs. O at 5-7, W at 3-5.
23. School staff also developed an individualized learning plan for [REDACTED] with individualized goals in the areas of reading, writing, math, and behavior. This plan was updated for the 2023-2024 school year. Exs. O at 8-9, W.
24. By the spring of the 2022-2023 school year, [REDACTED] demonstrated a 52 percent decrease in aggressive behaviors and a 40 percent decrease in off-task behaviors. Tr. 62-63.
25. [REDACTED]’s behavioral and on-task improvements continued through summer 2023; in addition, he learned to “access” self-coping strategies and to use verbal language to express his wants and needs (rather that lashing out physically and/or yelling). Tr. 62-63, 72, 99.
26. [REDACTED] continues to attend [REDACTED] . He is enrolled in an 8:1:2 class. Tr. 60.
27. [REDACTED] continues to need small classes in which he can receive both teacher support and a supportive environment with consistent expectations and a behavioral program that includes a schedule of reinforcement in order to address his learning and behavioral needs. Tr. 61.
28. The students in [REDACTED]’s class are functioning within a 36-month age range in terms of academic readiness, communication and social skills, and self-management and self-care skills. Tr. 68-69.
29. [REDACTED]’s school schedule includes English Language Arts, math, writing, spelling, speech therapy, occupational therapy, fluency training, gross motor movement, “SEL,” study skills, read alouds, leisure activity/community outing, class meeting, adaptive physical education, lunch, and art/music. Ex. R; Tr. 91.
30. “SEL” is a social-emotional learning program. Tr. 93. Study skills class focuses on developing [REDACTED]’s skills as an independent learner and engaging in learning tasks (for example, completing worksheets) independently or with minimal teacher support. Tr. 93-94.
31. During summer 2023, [REDACTED] staff introduced independent study for [REDACTED]. During these sessions, [REDACTED] self-monitors his own independent learning behavior; he is able to remain on task for up to 10 to 15 minutes and is now able to engage in independent academic work. Tr. 63, 72, 74-75; Ex. O.
32. Remaining on task and completing academic work independently represents “significant progress” for [REDACTED] because when he arrived at [REDACTED], he was unable to sit in his seat without engaging in inappropriate behaviors. Tr. 75; see also Exs. O, W.
33. [REDACTED] is now able to express his emotions and feelings in a functional manner using words or by pointing to visual cues, follow classroom routines and transition from and to different lessons and locations (with teacher supervision at all times), and demonstrate independence with self-care (with adult support in the bathroom). Tr. 72-73; Ex. W.
34. In reading, [REDACTED] is working on sight words, phonological awareness, and comprehension skills. Tr. 75; Exs. O, W.
35. [REDACTED] has made progress in answering “wh” questions about short passages and making entries in his daily journal. Exs. O, W.
36. In math, [REDACTED] has made progress with addition, subtraction, multiplication, and division; addition and subtraction word problems; and math concepts, including place value. Tr. 76; Exs. O, W.
37. [REDACTED] provides [REDACTED] with the related services of speech and occupational therapies and counseling. Tr. 60.
38. [REDACTED] provides [REDACTED] with four individual speech therapy sessions per week. This intensive level of speech had enabled [REDACTED] to communicate appropriately when he does not want to do something, rather than scream and yell. He is now able to communicate in four to five word complete sentences and engage with others in a functional and social manner. Tr. 65-66; see also Tr. 99-100; Exs. M, Y.
39. The speech therapist also incorporates PROMPT therapy into speech sessions in order to improve [REDACTED]’s speech intelligibility, and she works with [REDACTED] to utilize assistive technology, specifically ProLoQuo2Go on an iPad,[4] in order to both support and promote his vocal speech. Tr. 77-78; Exs. M, Y.
40. [REDACTED] provides [REDACTED] with three individual occupational therapy sessions per week. The therapist focusses on self-regulation and fine motor skills, and school staff implement an individualized sensory diet with [REDACTED]. Tr. 66-67.
41. The sensory strategies included in the sensory diet are integrated throughout his daily routine at school. Tr. 67; Exs. K, L at 1. [REDACTED] has responded to these strategies and improved his regulation throughout the school day as well as his ability to transition between activities; as a result, he is more available for learning. Tr. 67; Exs. L at 1, W at 1.
42. In addition, through occupational therapy, [REDACTED] has improved his handwriting skills, ADL skills, fine motor skills, attention, and sensory modulation/self-regulation. Tr. 67; Exs. L, W.
43. [REDACTED] provides [REDACTED] with one session per week of individual counseling. Ex. N. Through counseling at [REDACTED], [REDACTED] has learned skills to cope with frustration, flexible thinking skills, and improved his self-regulation. Tr. 64-65; Exs. L, V.
Additional Factual Matters Relating to the Equities
44. [REDACTED]’s parent has attended and participated in the IEP meetings to which the Department invited her. Tr. 103-104.
45. With respect to the 2023-2024 school year, [REDACTED]’s parent attended two IEP meetings, one conducted in January 2023, at which the Department recommended a District 75 8:1:1 special education program for [REDACTED] (IHO Ex. II at 20), and another conducted in June 2023, at which the Department continued to recommend the same 8:1:1 program for [REDACTED]. Exs. G, H.
46. [REDACTED]’s mother did not receive an IEP for [REDACTED] after the June 2023 meeting.[5] Tr. 109-110.
47. [REDACTED]’s parent submitted a “ten-day” notice letter to the Department on June 16, 2023. Ex. I.
48. The Department did not offer [REDACTED] a school placement for the 2023-2024 school year until after July 31, 2023. Tr. 110; Ex. H at 4.
49. [REDACTED]’s parent entered into an enrollment contract with [REDACTED]. This contract obligates [REDACTED]’s parent to pay [REDACTED] for tuition for the 2023-2024 12-month school year in the amount of $115,500.00. Exs. P, T; Tr. 111-112.
50. [REDACTED]’s parent is seeking direct funding of [REDACTED] tuition because she is unable, at this time, to afford the tuition. She provided credible testimony and documentary evidence as to her current inability to pay. Tr. 79; Ex. S.
51. [REDACTED]’s parent borrowed [REDACTED] from her [REDACTED] to make a payment towards the [REDACTED] tuition for the 2023-2024 school year. Tr. 111.
CONCLUSIONS OF LAW
The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education 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) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121.
A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137
S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). 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. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).
The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v). The school district must then implement the IEP. 8 N.Y.C.R.R. 200.4(e)(1), (3).
A hearing officer may determine that a school district denied a student a FAPE based upon the district’s procedural errors in the development of the IEP, deficiencies in the substance of the educational program set forth in the IEP, or both. See L.O. v. New York City Dep’t of Educ., 822 F.3d, 95, 109 (2d Cir. 2016); see also 20 U.S.C. § 1415(f)(3)(E)(i); 8 N.Y.C.R.R. § 200.5(j)(5)(v). If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate special educational program only if the procedural inadequacy: (1) impeded the student’s right to a free appropriate public education; (2) “significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007. Furthermore, “[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; see also L.O., 822 F.3d at 123-124.
In New York, the school district bears the burden of proof in 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. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.
What is the import of the Department’s failure to defend its CSE’s IEP program and placement for [REDACTED] for the 2023-2024 12-month school year?
In this case, the Department did not present testimony or documentary evidence to explain how its IEP program and placement met [REDACTED]’s unique special educational needs and provided a FAPE to [REDACTED]. The Department elected to absent itself, rather than availing itself of an opportunity to request an adjournment, from the opportunity to defend its case at the hearing. Since the Department did not offer any testimony or documentary evidence to demonstrate that the program and placement that it had recommended for [REDACTED] were “reasonably calculated” to permit him to make progress given his unique circumstances, the Department did not carry its burden of proof of demonstrating that it offered [REDACTED] a FAPE for the 2023-2024 12-month school year.
Is [REDACTED]’s parent entitled to funding for the costs of [REDACTED]’s attendance at [REDACTED]?
1. Does a preponderance of the evidence demonstrate that the program at [REDACTED] meets [REDACTED]’s identified and unique special educational needs?
Under the principles set forth by the Supreme Court in Burlington and Carter, a board of education may be required to pay for education services obtained for a child by the child's 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, 471 U.S. 359 (1985). The fact that the school or services selected by the parents are not approved by the State Education Department, as in the instant case, is not dispositive of the parents’ claim for tuition reimbursement or other funding for services. See Florence County School District v. Carter, 510 U.S. 7 (1993).
Here, as explained above, the Department failed to meet its evidentiary burden to demonstrate that it offered [REDACTED] a FAPE for the 2023-2024 12-month school year. [REDACTED]’s parent now bears the burden of proof concerning the appropriateness of [REDACTED]’s program for [REDACTED]. See, e.g., Frank G. v. Board of Education of the Hyde Park Central Sch. Dist., 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S.Ct. 169 (2007). To meet this burden, [REDACTED]’s parent must show that the educational services provided at [REDACTED] addressed [REDACTED]'s identified special education needs. See C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 82 (2d Cir. 2014); C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free Sch. Dist., 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that: No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. 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.
Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist.
v. D.M., 831 F. App’x 29, 78 IDELR 2 (2d Cir. 2020) (Summary Order). Furthermore, as the Second Circuit held in R.E.: “parents may provide evidence that the child made actual progress at their chosen private placement to support the adequacy of that placement.” 694 F.3d at 187 n.3. See also, e.g., T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 878 (2d Cir. 2016) (unilateral program appropriate when it meets child’s needs and child makes progress); F.B. v. New York City Dep’t of Educ., 132 F. Supp. 3d 522, 555-56 (S.D.N.Y.
2015) (unilateral program appropriate when it provided instruction and related services individualized to child’s needs and which resulted in progress); see also, e.g., Application of a Student with a Disability, Appeal No. 22-002 at pp. 16-19 (prong II burden met when testimony of school witness describes how school’s program addresses student’s individual needs); Application of a Student with a Disability, Appeal No. 21-063 at pp. 14-16 (same); Application of a Student with a Disability, Appeal No. 21-056 at pp. 18-22 (same).
The record in the instant case is abundantly clear: the preponderance of the evidence establishes that [REDACTED] provides [REDACTED] with an educational environment in which his specific and identified special education needs are addressed. In particular, [REDACTED] addresses [REDACTED]’s needs for small classes, an individualized special education program with goals tailored to his needs, adult support to address his attentional challenges, a social-emotional learning component, strategies and interventions to develop independence in completing learning tasks, and a sensory diet to address his regulation difficulties. [REDACTED] also provides [REDACTED] with ABA and ABA-based behavioral assessments, strategies, and interventions that he needs to address the behaviors that interfere with his learning, to be available for learning, to learn how to learn, and to learn. Furthermore, [REDACTED] provides [REDACTED] with a robust program of related services to address his communication, fine motor, ADL, and social skills challenges. The record is clear as to the extent of the individualized special education and other supports that [REDACTED] personnel provide to [REDACTED]. See paragraphs 17-19, 22-23, 26, 31, 34, 37-43, above; see also paragraph 10, above (psychologist recommendations). [REDACTED] is making progress at [REDACTED] during the 2023-2024 12-month school year, and this progress is meaningful to [REDACTED] in light of his challenges and “unique circumstances.” See paragraphs 24-25, 32-33, 35-36, 38, 41-43, above.
Furthermore, the record demonstrates that [REDACTED] needs ABA in order to learn. When he attended programs in which ABA was utilized, he made progress. When he attended programs in which ABA was not utilized, he did not make progress and his behaviors worsened. In addition, the evaluating psychologist recommended an ABA program for [REDACTED]. See paragraphs 5, 8, 10, 24-25, 32, 33, above. For many years, federal courts have recognized ABA as an appropriate and effective teaching methodology for children with autism. See, e.g., A.M. v. New York City Dep’t of Educ., 845 F.3d 523, 545 (2d Cir. 2017) (where reports “specifically recommended the continued need for ABA therapy,” IEP is substantively inadequate because it did not recommend any ABA); R.E., 694 F.2d at 194; M.H. v. New York City Dep’t of Educ., 712
F. Supp. 2d 125 (S.D.N.Y. 2010), aff’d 685 F.3d at 252; see also 34 C.F.R. § 300.39(b)(3) (“[s]pecially designed instruction means adapting, as appropriate to the needs of [the child], the content, methodology, or delivery on instruction”) (emphasis added).
The evidence thus demonstrates that [REDACTED] provides [REDACTED] with an appropriate special education program. See, e.g., T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 878 (2d Cir. 2016) (unilateral program appropriate when it meets child’s needs and child makes progress); F.B. v. New York City Dep’t of Educ., 132 F. Supp. 3d 522, 555-56 (S.D.N.Y.
2015) (unilateral program appropriate when it provided instruction and related services individualized to child’s needs and which resulted in progress); see also, e.g., Application of a Student with a Disability, Appeal No. 22-002 at pp. 16-19 (prong II burden met when testimony of school witness describes how school’s program addresses student’s individual needs); Application of a Student with a Disability, Appeal No. 21-063 at pp. 14-16 (same); Application of a Student with a Disability, Appeal No. 21-056 at pp. 18-22 (same).
Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that the program at [REDACTED] is appropriate for [REDACTED] for the 2023-2024 12-month school year. As a result, [REDACTED]’s parent prevails with respect to the second Burlington/Carter criterion.
2. Does [REDACTED]’s parent have an obligation to pay tuition to the school such that she has standing to seek direct funding of [REDACTED]’s tuition?
In order to have standing to bring a direct funding case, parents must have a legal obligation to pay for the educational services for which they are seeking funding. E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 456-458 (2d Cir. 2014); Application of a Student with a Disability, Appeal No. 23-097 at pp. 7-9. Under a Burlington/Carter analysis, services which are determined as reimbursable or fundable are fully reimbursed or funded by the school district “unless, as a matter of equitable considerations, the costs sought to be reimbursed are excessive or otherwise should be reduced, or, in the case of direct funding, the parent has not demonstrated a legal obligation to pay the cost and an inability to do so.” Application of a Student with a Disability, Appeal No. 21-245 at p. 17 (emphasis added). In short, there must be proof of parents’ legal obligation to pay for services provided to their child. Id. at pp. 17-18. See also, e.g., D.A. v. New York City Dept. of Educ., 769 F Supp. 2d 403, 430 (S.D.N.Y. 2011). Here, the record is clear that [REDACTED]’s parent is legally obligated, as per the enrollment contract, to pay the [REDACTED] tuition set forth in that enrollment contract. See paragraph 49, above.
There is a recent decision from the Southern District, which is precedent controlling in this matter, holding that proof of inability to pay is not necessary. See Ferreira v. New York City Dep’t of Educ., 22 Civ. 4993 (S.D.N.Y. March 14, 2023). In any event, [REDACTED]’s parent did demonstrate that she is unable to pay the [REDACTED] tuition and then seek reimbursement for those payments from the Department. See paragraphs 50-51, above.
3. Do the equites otherwise support [REDACTED]’s parent’s entitlement to relief in this proceeding?
With respect to the third Burlington criterion, whether equitable considerations support [REDACTED]’s parents’ claims, the evidence establishes that [REDACTED]’s parent cooperated with the CSE by attending and participating in CSE meetings, placing [REDACTED] in programs recommended by the Department in prior school years, and providing the requisite statutory notice. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district). “Important 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.” C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014). There is no indication in the record that [REDACTED]’s parent impeded the Department in offering [REDACTED] a FAPE. In fact, the opposite is true. See paragraphs 44-46, 48, above. Equitable considerations thus favor the award of relief to [REDACTED]’s parent. As a result, [REDACTED]’s parent prevails with respect to the third Burlington/Carter criterion.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED:
The Department of Education shall fund [REDACTED]’s placement at the [REDACTED] for the 2023-2024 12-month school year, in an amount totaling $115,500.00, with reimbursement in the amount of $3,000.00 and direct payment to [REDACTED] for the remainder. The amount of funding for the 2023-2024 12-month school year shall not exceed $115,500.00.
SO ORDERED.
DATED: October 16, 2023
Jean Marie Brescia, 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.
DOCUMENTATION ENTERED INTO THE RECORD
Parent’s Exhibits
Exhibit Number Exhibit Date Number of Pages
P-A Parent’s Hearing Request 07/03/23 17
FINDINGS OF FACT AND DECISIONS
P-B Findings of Fact and Decision, Case 238670 02/28/23 10
EVALUATIONS
P-C Occupational Therapy Evaluation 01/29/20 7
P-D Speech and Language Evaluation 02/05/20 11
P-E ABA Skills Assessment 05/31/20 18
P-F Neuropsychological Evaluation 09/06/22 12
PRIOR WRITTEN NOTICE
P-G Prior Written Notice 01/17/23 3
P-H Prior Written Notice 07/31/23 4
TEN DAY LETTER
P-I Ten Day Notice Letter 06/16/23 3
SCHOOL DOCUMENTS
P-J [REDACTED] Program Description Undated 5
P-K [REDACTED] Sensory Diet Description 03/03/23 2
P-L [REDACTED] Occupational Therapy Annual Report 04/19/23 4
P-M [REDACTED] Speech Therapy Annual Report 04/19/23 5
P-N [REDACTED] Counseling Annual Report 04/19/23 1
P-O [REDACTED] Educational Annual Report 05/08/23 9
P-P [REDACTED] Enrollment Contract Various 14
P-Q [REDACTED] Student Attendance Record Undated 2
P-R [REDACTED] Student Schedule Undated 1
P-S Social Security Administration Benefit Letter 08/04/23 1
P-T [REDACTED] Tuition Document 08/10/23 1
RESUMES
P-U Resume of Dr. [REDACTED] Undated 9
SUPPLEMENTAL
P-V [REDACTED] Summer Progress Report – Counseling 08/02/23 1
P-W [REDACTED] Summer Progress Report – OT 08/04/23 2
P-X [REDACTED] Summer Progress Report – Education 08/04/23 5
P-Y [REDACTED] Summer Progress Report – Speech 08/07/23 2
Impartial Hearing Officer’s Exhibits
I Emails re: scheduling 08/09/23 5
II IEP 01/22/23 30
Footnotes
[1] Exhibits shall be referred to as follows: Parent’s exhibits are identified with letters; Department exhibits are identified with numbers; and Impartial Hearing Officer’s Exhibits are labelled as “IHO” and a Roman numeral.
[2] The Department did not disclose any proposed evidence to Parent’s counsel or to me. Tr. 35.
[3] REDACTED repeated kindergarten at REDACTED. Tr. 107.
[4] The Department provided the device for REDACTED. Tr. 79.
[5] The IEP from the January 2023 meeting is included in the record. IHO Ex. II.