Impartial Hearing Decision

CASE NUMBER: 249964

FINDINGS OF FACT AND DECISION

Case Number: 249964

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

Date of Birth: [REDACTED]

School District: [REDACTED]

Hearing Requested by: [REDACTED], (“Parent”)

Request Date/Date Complaint Filed: 7/3/23

Date(s) of Hearing: 8/17/23, 9/15/23, 10/6/23, 11/2/23, 11/3/23

Actual Record Closed Date: 11/18/23

Date of Decision: 11/20/23

Parent’s Counsel: [REDACTED]

[REDACTED]

District Counsel: [REDACTED]

Hearing Officer: Barbara J. Caravello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 17, 2023

For the Student:

[REDACTED]

[REDACTED]

For the Department of Education:

[REDACTED]

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 15, 2023

For the Student:

[REDACTED]

[REDACTED] [REDACTED]

For the Department of Education:

[REDACTED]

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 6, 2023

For the Student:

[REDACTED]

[REDACTED] [REDACTED] [REDACTED]

For the Department of Education:

[REDACTED]

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 2, 2023

For the Student:

[REDACTED]

[REDACTED] [REDACTED]

For the Department of Education:

[REDACTED]

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 3, 2023

For the Student:

[REDACTED]

[REDACTED]

For the Department of Education:

[REDACTED]

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC" or “Impartial Hearing Report”) filed on or about July 3, 2023, (Exhibit P-A) 2 and assigned to the undersigned on July 6, 2023.

The Parent alleges that the District did not provide a free and appropriate public education (“FAPE”) for the Student for the 2023-2024 school year by among other alleged violations, the failing to provide a timely and appropriate Individualized Education Program (“IEP”), as provided for under Section 300.342(a) of the Individuals with Disabilities Education Act (“IDEA”) and 20 U.S.C. 1414(d)(2)(A), or a prior written notice as provided for in 34 C.F.R. 300.503(a). Additionally, the Parent alleges that the DOE failed to conduct proper evaluations, failed to utilize the available evaluations, and failed to provide timely and appropriate programs. The DOE did not defend these allegations.

A pendency hearing took place on August 17, 2023, but was not processed in a timely manner due to IHO error. A hearing on the merits of the case commenced on September 15, 2023, and continued on October 6, 2023, November ^[2], 2023 and November 3, 2023, upon which date, the hearing was complete. It was a closed hearing, and Parents were represented by [REDACTED] and [REDACTED] of the [REDACTED]. The DOE was represented by [REDACTED].

JURISDICTION

A 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

ISSUES

ISSUE I:

Did the DOE provide the Student with a free and appropriate public education?

ISSUE II:

Is the current program, consisting of placement at the [REDACTED] along with in-home services by [REDACTED] appropriate for the Student?

ISSUE II

With which party does equity lie?

FINDINGS OF FACT

The Student was a [REDACTED]-year-old at the time the due process complaint was filed. The Student is educationally classified and diagnosed with Autism, (Ex. B). It is unrefuted that the Student exhibits significant delays in cognitive language and academic delays as well as the areas of fine motor skills, daily living skills and communication skills.

The Student engages in non-communicative sounds for purposes of self-stimulation as well as immediate and delayed echolalia. When participating in off-campus learning opportunities, the Student is required to have two adults supervising her, due to a tendency to elope. The Student has physical and medical issues that affect her mobility.

The most recent IEP, dated July 29, 2022 was not provided to the Parent until the document was disclosed by the DOE in preparation for this hearing. No IEP was timely provided to the Parent for the 2023-2024 school year.

An IEP dated August 10, 2020 recommended a district 75 school with eight students, one head teacher and one assistant (“8:1:1”). This is the last IEP that the Parent purports to have received. The Parents were dismayed by the recommendation as they strongly felt that a non-public school was entirely more appropriate and independent evaluations strongly urged a program that contained an ABA component both in school and in the home. The Parent unilaterally placed the Student in the [REDACTED] where she is currently enrolled and has been for the past few years. The Student has been receiving in-home services from [REDACTED].

Although no witness was presented by the District, the Parent submitted affidavit testimony of several witnesses and the DOE had ample opportunity to cross examine. The testimony of all witnesses are deemed credible.

CONCLUSIONS OF LAW AND DISCUSSION

Free and appropriate public education (“FAPE”):

The IDEA was legislated in order to “ensure that all children with disabilities have available to them, a free appropriate public education that emphasizes special education and related services designed to meet their unique needs,” Board of Education of Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982).

The hallmark of a FAPE is educational instruction that is designed to “meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction,” id.

An appropriate program begins with an IEP which 1) accurately reflects the results of the student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child’s special education needs; 3) establishes annual goals which are related to the child’s educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) provides criteria and evaluation procedures for the measurement of goals. See, Walzcak, supra; Id., Appeal No 00-005. It is the responsibility of the DOE to provide the Student with the services and/or placement that will bring him or her up to a level of learning that is not only sufficient to confer some educational benefit upon the ‘handicapped’ child, Rowley, supra, but emphasizes special education and related services designed to meet the Student’s unique needs and prepare him for further education, employment and independent living as well as 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]; Rowley, at 206-07.

A district may be found liable to have denied a FAPE when it places a student with a disability in a school or program that cannot provide the services and supports he needs to receive FAPE, D.L.v. St. Louis City Sch. Dist., 76 IDELR 31 (8th Cir. 2020).

Here, there is extensive evidence that the Student needed both the ABA program, with BCBA supervision and parent training and that the District 75 school that the Parent was referred to had none of these services. I do find that these services meet the Student’s unique needs and are necessary to bring the Student to a level sufficient to confer some educational benefit upon the Student.

A court or a hearing officer may order a district to reimburse the parents of a student with a disability for the student’s unilateral private placement if the district failed to make a FAPE available in a timely manner and the unilateral private placement is appropriate, 34 CFR 300, 148 (c); Florence County Sch. Dist. Four v. Carter, 20 IDELR 532 (US 1993).

There is ample evidence that the District denied FAPE to the Student, and the District does not defend having denied this responsibility. The most recent IEP for the Student at the time of the DPC filing was dated July 29, 2022 and was not received by the Parent until the DOE disclosed evidence for this hearing. There was no IEP provided for the 2023-2024 school year. There was no credible evidence to refute these allegations and the credible testimony of the Parent supported the allegations in the DPC. Denial of FAPE is therefore found and the next consideration must be whether the placement is appropriate. Appropriateness of the Placement: A school district has the burden of proof, including the burden of persuasion and the burden of production in IDEA due process hearings, except that a parent or person in a parental relationship, seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and the burden of production with respect to the appropriateness of such a placement, In re: Student with a Disability, NYS Educational Agency, 14-022, (3/31/14); In re: Student with a Disability, NYS Educational Agency, 175353, (12/14/18); NYS Educ. Law § 4404(1)(c).

Here, upon cross examination of [REDACTED], Educational Director of [REDACTED], it was revealed that the Student was enrolled in an 8:1:2 classroom, (Tr. 11/3/23, p.119), similar to the DOE recommendation, with well-qualified instructors, (Tr. 11/3/23, p 123-124) and had access to ABA instruction, (Tr. 11/3/23, p. 123) as recommended by an independent evaluator, (Exh. A, S). The Student receives related services that are helping her to achieve her educational, social and emotional goals, (Exh. S, Tr. 11/3/23, p. 125-127).

The IDEA authorizes a hearing officer to make such a reimbursement order if the unilateral placement was ultimately determined to be more proper than the IEP, Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, (4/29/85), Florence County Sch. Dist. Four v. Carter, 510 .S. 7, (11/9/93).

There was strong evidence that this Student had needs that would not have been met in the public school setting, (Exh. G, H, I, J, S, T, U).

An applied behavior analysis, (“ABA”) assessment, provided in September of 2018, declared that the Student was in need of immediate enrollment in a twelve-month program utilizing a ABA with a board certified behavior analyst with doctoral training, (“BCBA-D”) and a behavior intervention plan, (“BIP”). Additionally, a speech and language therapy (“SLT”) assessment, prepared in August of 2018, found that the Student was severely deficient in all areas of language functioning which had a negative effect, not only on social and emotional growth, but on academic functioning. A speech generating device was recommended as part of an assistive technology (“AT”) evaluation and physical therapy evaluation recommended physical therapy as well. All of these services are provided by the [REDACTED]. The same cannot be said for the recommended District 75 placement offered by the DOE. [REDACTED] is a BCBA who supervises the Student’s home-based ABA services, and provides parent training, (Tr. 10/6/23, p. 88, 89, Exh.T, P). The testimony of this witness was by affidavit and the DOE engaged in cross examination on October 6, 2023. I see no reason to deem the witness’s testimony as anything but credible.

The witness has been working with the Student since the 2019-2020 school year, and has seen much progress, (Exh. T). It is the opinion of this witness that without this home-based service, the Student will regress educationally, emotionally, socially and with respect to her self-help skills, id.

Parent testified that the services received by the Student at [REDACTED] do not currently take place in the school setting, but at home, (Tr. 109). These services consist of 10 hours per week of inhome ABA services at $155 per hour with 90 minutes per week of BCBA supervision at $245 per hour and one hour per week of parent counseling and training services at $155 per hour, (Exhs. G,H,T,J). There is extensive evidence that these services are extremely important to support the Student socially and academically and are invaluable to the Student’s progress in those areas, along with basic safety and daily living skills, (Exhs. G, H, T, J). Importantly, due to the in-home services that support the services and curriculum at the [REDACTED], the Student is making steady progress towards addressing all deficits, academically, emotionally and socially.

A unilateral private placement does not need to meet state standards for public education programs to be “appropriate” for reimbursement services if it is in substantial compliance with the substantive requirements of IDEA, Burlington, supra, Carter, supra, 34 CFR 200.148 (c). A unilateral private placement is appropriate for reimbursement purposes if it offers instruction that is specially designed to meet the student’s unique needs as well as the support services the student requires to benefit from that instruction, id, (see also, M.N. v. State of Hawaii, Dep’t of Educ., 60 IELR 181 (9th ir. 2013, unpublished); Ward v. Board of Education of the Enlarged City Sch. Dist. Of Middletown, NY , 63 IDELR 121 (2d Cir. 2014, unpublished).

In the instant matter, the Parent’s witness, [REDACTED] goes on to testify that the classroom provides the Student with a nurturing environment with a small student-to-teacher/assistant ratio and all recommended related services, in addition to music and art therapies which have been assessed by the school to be beneficial to the Student. The service providers communicate with each other and with the classroom staff.

This placement is more than adequate for the Student’s needs, without being overly restrictive.

Equity:

The balancing of equities is the final consideration in determining whether the cost of reimbursement should be borne by the District for a unilateral placement, J.T. v. Dep’t of Educ., State of Hawaii, 72 IDELR 95 (D. Haw. 2018). The factors that must be considered consist of: 1. Whether the parents failed to provide the school district with timely notice of their rejection of the proposed public placement, including their concerns and intent to enroll the student in a private school at public expense. This notice is timely if it is made either at the most recent IEP team meeting or at least l0 business days prior to removal of the student from the public school, 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148 (d)(3). 2. Whether prior to the student’s removal, the school district informed the parents of its intent to evaluate the student, but the parents did not make the student available for the evaluation, 20 U.S.C. § 1412(a)(10)(C)(iii)(II); 34 C.F.R. § 300.148 (d)(1). 3. Whether the parents actions were unreasonable, 20 U.S.C. § 1412(a)(10)(C)(iii)(III); 34 C.F.R. § 300.148 (d)(3). 4. Whether the cost of the private placement is unreasonable, Carter, supra. 5. Whether there was a lack of parental cooperation with the school district, ^[3] There is no showing that the Parent did anything but cooperate. The District was given timely notice of Parents’ decision to unilaterally place the Student outside the public school setting. There is inadequate showing that the cost of services is unreasonable or that of the unilateral placement was unreasonable.

The parent testified that she did not receive an appropriate program for the Student. There was a great deal of evidence that the Student needs ABA instruction with the supervision of a BCBA and that the Parents need a Parent training component. These things would not have been provided in a District 75 program. The District’s failure to offer an appropriate program does not translate into non-cooperation by the Parent for the unilateral placement. Otherwise, the Parent was involved in the IEP meetings and corresponded with the DOE. It was the DOE that did not always provide the Parent with copies of the IEP or otherwise communicate.

ORDER:

Based on the Findings of Fact and Conclusions of Law and all evidence before the IHO, it is hereby decided and ordered that:

1. The DOE is found to have denied the Student a FAPE in the 2023-2024 school year by its failure to appropriately place the Student, to conduct and utilize appropriate evaluations and to provide the Parent with a timely and appropriate IEP.

2. The [REDACTED] is deemed an appropriate placement.

3. The in-home service program provided by [REDACTED] is deemed an appropriate program.

4. The equities lean toward the Parent in the decision made herein.

5. The DOE shall fund and/or reimburse the Parent for the full amount of tuition, fees and deposits for the [REDACTED] for the 2023-2024 school year, including, but not limited to all transportation costs.

6. The DOE shall fund and/or reimburse the Parent for any and all out-of-pocket transportation resulting from a failure to timely and appropriately implement the Student’s transportation expenses for the 2023-2024 school year.

7. The DOE shall fund and/or reimburse the Parent for the Student’s in-home program, provided by [REDACTED], specifically for the duration and monetary rate of:

a. 7.5 hours per week of at-home ABA services at the rate of $155 per hour;

b. 90 minutes per week of BCBA supervision at $245 per hour; and

c. One hour per week of parent counseling and training for the Parent at $155 per hour.

8. All awards granted in this order are for a twelve-month school year.

9. The DOE’s Impartial Hearing Office Implementation Unit is to authorize and any tuition payments and services within 14 days of this order date, issue tuition payments within 30 days of authorization and fund services within thirty days of receipt of invoices.

10. The DOE must immediately upon receipt, enter this order on a system that is used to keep track of such orders.

11. It is further Ordered that the District is hereby directed for forthwith re-convene and develop a current IESP for the Student and conduct evaluations in all of the Student’s suspected areas of disability, if it has not already done so for the current school year.

SO ORDERED:

Dated: 11/20/2023

Barbara J. Caravello, Impartial Hearing Officer

APPEAL RIGHTS

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.

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] Neither Burlington, Carter nor the IDEA mentions this equitable consideration, but other courts have weighed parental cooperation in deciding whether to award reimbursement, See e.g., Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656 (S.D.N.Y. 2005), Glendale Unified Sch. Dist. v. Almasi, 122 F. Supp. 2d 1093, (C.D. Cal. 2000), 20 U.S.C. §1412(a)(10)(C).