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: 250027
Student's Name: [REDACTED]
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Requested By: Parent
Date of Hearing: 08/07/2023 Pendency Hearing
08/24/2023
08/25/2023
10/05/2023
10/06/2023
Actual Record Close Date: 10/31/2023
Decision Date: 11/07/2023
Hearing Officer: Daniel Ajello Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/07/2023
(All Parties Appeared Via Teleconference)
For the Student:
[REDACTED], ESQ., Attorney
For the Department of Education:
[REDACTED], ESQ., District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/24/2023
(All Parties Appeared Via Teleconference)
For the Student:
[REDACTED], ESQ., Attorney
For the Department of Education:
[REDACTED], ESQ., District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/25/2023
(All Parties Appeared Via Teleconference)
For the Student:
[REDACTED], ESQ., Attorney
For the Department of Education:
[REDACTED], ESQ., District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/05/2023
(All Parties Appeared Via Teleconference)
For the Student:
[REDACTED], ESQ., Attorney
For the Department of Education:
[REDACTED], ESQ., District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/06/2023
(All Parties Appeared Via Teleconference)
For the Student:
[REDACTED], ESQ., Attorney
[REDACTED], Parent Student
[REDACTED], Associate Director of Upper
School ABA Services, [REDACTED] ([REDACTED])
[REDACTED], Program Supervisor
[REDACTED] ([REDACTED])
For the Department of Education:
[REDACTED], ESQ., District Representative
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
Entered 08/07/2023 Exh. Date Description Page(s) A 07/01/23 Due Process Complaint (DPC) with pendency form and submission email 16 B 05/14/2023 Findings of Fact and Decision (FOFD) Case 229041 31 C 08/01/23 Signed Pendency Agreement 1 Entered 08/24/2023 D 08/10/23 Amended Due Process Complaint (ADPC) 15 Entered 10/05/2023 E 09/19/22 Individualized Education Plan (IEP) 46 F 08/10/2022 Emails to CSE re: Documents for IEP 57
G 10/17/22 Letter to CSE re: September 2022 IEP 3 H 02/08/21 Neuropsychological Evaluation 11 I 01/10/23 Prior Written Notice and School Location Letter 6 J 03/31/23 Letter to CSE re: Public Placement Recommendation 4 K 06/21/23 Prior Written Notice (Due Process Response) and School Location Letter 8 L 08/09/2023 Emails to DOE Recommended Placement re:
Special Education Program Information 6 M 08/09/2023 Letter to CSE re: Public Placement Recommendation 6 N 2023-2024 [REDACTED] ([REDACTED]) Enrollment Contract 5 O 2023-2024 [REDACTED] ([REDACTED]) Enrollment Contract [1] P 2023-2024 [REDACTED] Program Description 11 Q 2023-2024 [REDACTED] Class Schedule W June 2023 [REDACTED] OT Progress Report 6 X 2023-2024 [REDACTED] ABA Goals 3 Y 2023-2024 [REDACTED] Functional Behavioral Assessment (FBA) and Corresponding Behavioral Intervention Plan (BIP) 19 Z April 2023 Feeding Therapy Progress Note 2 AA 2022 Federal Tax Return 2 BB 10/04/2023 Affidavit of [REDACTED] 4 Sworn to on 10/06/2023 CC 10/03/2023 Affidavit of [REDACTED] [REDACTED] 11 DD 10/03/2023 Affidavit of [REDACTED] [REDACTED] 9 EE 06/16/23 Ten Day Notice (TDN) with CSE Confirmations 5 Entered 10/06/2023 FF 23-24 [REDACTED] Invoices 10
DEPARTMENT OF EDUCATION (DOE)
None
IMPARTIAL HEARING OFFICER
Entered 08/07/2023 I Notice of Appointment, 07/06/2023, 4 pages
II Teleconference Notice, 07/06/2023, 1 page
III Notice of Appearance, 07/31/2021, 1 page Entered 08/24/2023 IV Amended Pendency Implementation Form, 08/22/2023, 1 page Entered 10/31/2023 V Parent’s Closing Brief, 10/27/2023, 7 pages
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.
Hearing to determine Student Pendency was held on 08/07/2023.
At the Pendency Hearing the Parties advised the IHO that a Pendency Implementation Form had been completed which resolved the Pendency Issue. (IHO Ex IV)
Hearing commenced, on 08/24/2023, to allow the DOE an opportunity to defend against the allegations contained in the DPC.
At Hearing, the Parent Attorney advised that an Amended Due Process Complaint had been filed, and it was awaiting acceptance by the DOE.
Hearing continued on 08/25/2023, at which time it was expected to determine if the Amended Due Process Complaint (ADPC) had been accepted in the system, which would restart a resolution period.
At Hearing, of 08/25/2023, it was determined that the ADPC had not yet been processed through the Impartial Hearing Office system.
The DOE Representative stated that the ADPC was not getting through the system since we had a Hearing date scheduled. The DOE Representative believed that once the Hearing ended on 08/25/2023, it would get processed through the Impartial Hearing Office system, and the resolution period would reboot. (T 36-37)
The ADPC was ultimately accepted and processed, on 08/30/2023, and the Resolution period restarted.
Hearing then commenced, on 10/05/2023, and concluded, on 10/06/2023.
Appended to the record are lists of persons in attendance and the documents received in evidence.
Due Process Complaint (DPC) relates to the 23/24 School Year, and allegations include: the Student was denied a Free appropriate Public Education (FAPE), for the 23-
24 school year.
Parent seeks relief that includes DOE funding for Student Unilateral Placement at the [REDACTED] ([REDACTED]) and REDACTED ([REDACTED]), which together
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 appeared, at Hearing of 10/05/2023, the date set to allow the DOE to defend against the allegations contained in the ADPC. (Ex D)
The DOE did not defend any offer of a Free Appropriate Public Education (FAPE), for the Student, for the 23-24 school year, opting to rest on the evidence presented. (T 45-46)
The Parent’s Attorney supported its position via uncontested Documentary Evidence, Written Testimony and Oral Testimony. The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below.
The Parent Attorney outlined the Parent claims, arguments, and sought after relief, via opening Statement, and Closing Brief. (T 65-68, IHO Ex IV)
[REDACTED], Associate Director of Upper School ABA Services ([REDACTED])
Testimony, at Hearing, included:
- Student “requires practice exclusively across settings. She requires this in order to acquire skills. So she requires a school-based as well as a home-based program in order to make progress and increase her dependence across all domains, including behaviors.” (T 72); - Above opinion is based upon assessments and progress throughout the school year (T 73); - Witness created a Behavior Intervention Plan (BIP), which is implemented based upon ABA techniques (T 76-77); and - Management needs, such as stimulus, prompt, echoic response prompt, physical response prompt, verbal prompt, gesture prompt, indirect verbal prompt, phonemic prompt, are ABA terms and prompting the Student requires. (T 77) [REDACTED], Program Supervisor ([REDACTED]) Testimony, at Hearing, included: - Student is currently provided ten hours of service, as a provider has not yet been located for two additional hours (T 87-88); - Services are intended to be delivered, to the Student, on a 52 week basis (T 90); - Witness does not believe the Student could be successful without the home based services: “[Student] has significant deficits, and they exceed what can be targeted within a school day. So having that additional practice, additional opportunities to work on her skill deficits, I think is necessary for her.” (T 91); and - Regarding how skills the ABA provider needs to teach the Student: “…[Student] learns that some skills are broken down into, like, really small, discrete trials to teach, and so within a face washing or brushing teeth routine, we really have to break down those individual behaviors so that she can learn to complete the routine in full. And so the therapists understand the different prompting that she requires, and they're able to fade that support over time.” (T 93)
D 08/10/23 Amended Due Process Complaint (ADPC)
Details Parent’s allegations of a denial of FAPE for the 23-24 school year, including: - A review of the Student’s struggles and history of special education need (Ex D 3-4); - The DOE failed to recommend an appropriate special education program, for the Student, for he 23-24 school year (Ex D 5); - Parent requested a Public School Placement, for the Student, which they objected to, in part due to a lack of ABA program components, including trained staff (Ex D 6-7); - Parent received a recommended program placement, on 06/21/2023, which recommended the same program found previously to be inappropriate; - Parent does not believe the recommended program would meet the Student’s needs (Ex D 10-11); - The Parents further informed the DOE of their disagreement with the placement in a letter sent on August 9, 2023, however, the DOE has not responded to the Parents’ concerns; - The Parents remain open and willing to participate in a tour in September 2023 to learn more about the program, but the Parents cannot agree to this placement recommendation based on their prior discussions with placement school. (Ex D 10)
Parent seeks relief that includes: (a) a determination that the Department failed to provide this child with a free and appropriate public education for the 2023-2024 school year; (b) a determination that [REDACTED] was reasonably calculated to provide [Student] with educational benefit; (c) a determination that the Parents have cooperated throughout the special education process and the equities do not bar an award of funding for [REDACTED] for the 2023-2024 school year; (d) an order that the Department must provide tuition reimbursement for any amounts paid to [REDACTED], and direct and/or prospective funding for any amounts owed to [REDACTED], including tuition, and any other related costs or fees, including interest from any loans that the Parents secured to fund [REDACTED] tuition, as a result of [REDACTED]’s attendance at [REDACTED] for the 2023-2024 school year; (e) an order that the Department must continue to fund home-based 1:1 feeding therapy, the amount of such services to be determined during the course of the hearing, but not less than two forty-five-minute sessions per week; (f) an order that the Department must fund 12 hours of after-school or home-based 1:1 ABA instruction per week, at a rate of at least $200 per hour; (g) an order that the Department must continue to fund Board-Certified Behavior Analyst (“BCBA”) supervision that is appropriate for [REDACTED] based on her current needs, the amount of such supervision to be determined during the course of the hearing, but not less than the current program of (1) hour per week, at a rate of at least $220 per hour; (h) with respect to the home-based services described above, an order that the Department must, at the Parents' sole discretion, provide or fund home-based sessions that occur on weekdays, weekends, holidays, and vacations over the course of a fifty-two (52) week school year, including the break between the end of the summer session in August and the beginning of the fall session in September, in order to prevent substantial regression, and provide such services at an enhanced rate, if necessary; (i) an order that the Department must provide appropriate transportation, including, but not limited to, a climate-controlled single-child vehicle with a booster seat and limitedtime travel no longer than sixty (60) minutes to accommodate [Student’s] various medical and physical needs, and provide reimbursement for the cost of any expenses incurred by the Parents as a result of having to arrange private transportation due to the Department's failure to provide appropriate public transportation; and (j) an award of such other, further, and different relief as the impartial hearing officer determines to be fair and just under the circumstances of this case. (Ex D 11-13)
B 05/14/2023 Findings of Fact and Decision (FOFD) Case 229041
Used to establish Student Pendency, as indicated in Pendency Implementation Form.
(IHO Ex IV)
Found the Student was denied a FAPE, for the 22-23 school year, and award Parent DOE funding of Student [REDACTED]/[REDACTED] program. (Ex B 21-22)
C 08/01/23 Signed Pendency Agreement
E 09/19/22 Individualized Education Plan (IEP)
Identifies Student as one with a disability classification of Autism.
IEP found to be insufficient for the Student’s 22-23 school year, as determine in FOFD. (Ex B)
F 08/10/2022 Emails to CSE re: Documents for IEP
Documents sent to the CSE in anticipation of the Student’s September 2022 IEP meeting.
Documents detail Student special education needs, program, and progress during the 21-
22 school year, via services obtained from [REDACTED] (Ex F 5-11) and [REDACTED] (Ex F 12-57). G 10/17/22 Letter to CSE re: September 2022 IEP Parent communicates concern regarding a lack of a timely IEP meeting, concerns with DOE previous recommendation, and advises the DOE of the Student’s current program.
Parent notes willingness to consider DOE placements which address Parent concerns. H 02/08/21 Neuropsychological Evaluation
Confirms Student diagnoses of Autism, and recommends a variety of special education supports, including a school and home based ABA program. (Ex H 6-7) I 01/10/23 Prior Written Notice and School Location Letter
Includes DOE recommendations, which ultimately were not defended at Hearing. J 03/31/23 Letter to CSE re: Public Placement Recommendation
Parent raises concerns with the recommended DOE placement, including its lack of ABA and sufficient behavior supports.
Parent notifies that Student will continue at the unilateral placement; and that Parent is willing to consider other DOE placement recommendations. K 06/21/23 Prior Written Notice (Due Process Response) and School Location Letter
Includes DOE recommendations, which ultimately were not defended at Hearing. L 08/09/2023 Emails to DOE Recommended Placement re: Special Education Program
Information
Parent communicates with the DOE seeking information regarding the DOE recommended school placement. M 08/09/2023 Letter to CSE re: Public Placement Recommendation
Parent continues to raise concerns with the DOE recommended placement, details objections, notifies the DOE that Student will continue at [REDACTED], and that Parent remains open to a DOE Student placement and program.
N 2023-2024 [REDACTED] ([REDACTED]) Enrollment Contract
Student 23-24 Tuition, at [REDACTED], is set forth as $[REDACTED].00. (Ex N 1)
Parent is obligated to payment via signature. (Ex N 5)
O 2023-2024 [REDACTED] ([REDACTED]) Enrollment Contract
Parent [REDACTED] contract is tied specifically to DOE funding, and states the Parent is ultimately responsible for payment, in the event DOE funding is not established.
P 2023-2024 [REDACTED] Program Description
General characteristics, of [REDACTED], include:
- A transdisciplinary approach to teaching in which all areas of a student’s deficits are addressed through collaboration between professionals and the home in our world-class, teaching model whose philosophical underpinnings are rooted in Applied Behavior Analysis (ABA) (Ex P 1); - Curricula includes: Functional Academics, Social Communication, Pre/Vocational, Household Skills, Self-Management, Self-Care, Health and Safety, and Community Participation (Ex P 2-3); - Carefully designed, individually tailored instruction is assigned to students based on their inventories, designated goals created by [REDACTED], the wishes of the parents, and the needs of the community (i.e., future educational needs). The curricula always include measurable outcomes for students as well as detailed teacher operations (Ex P 3); - Continuous measurement of the important outcomes of instruction; - Commercial Curricula and Digital Resources, including Edmark Reading and SRS Reading Mastery (Ex P 3); - Social Programming; - Self-Management; - Behavioral Support, Plans and Crisis Management (Ex P 5); - Related Services of: o Speech Language Therapy (SLT), including: Feeding Therapy, Augmentative and Alternative Communication (AAC) Services (Ex P 6-8) o Occupational Therapy (OT) (Ex P 8) - Family Education and Support, including workshops and a support group (Ex P 9-10); - Adaptive Physical Education, Health and Lifelong Fitness (Ex P 10); - Music Therapy; and - Nursing (Ex P 11).
Q 2023-2024 [REDACTED] Class Schedule
Student’s 23-24 academic and related therapy schedule, including Group and 1:1 instruction.
R 2023-2024 [REDACTED] Classroom Goals
Student detailed [REDACTED] goals are set forth, including particular Student supports, in areas that include:
- Functional Academic (Math and Typing) (Ex R 1); - Social Communication (Ex R 1-2); - Vocational (Ex R 3); - Household (Ex R 3-4); - Self-Management (Ex R 4); - Health and Safety (Ex R 5); - Community Participation (Ex R 5); and - Behavior Goals (correspond to BIP) (Ex R 5)
S June 2023 [REDACTED] Classroom Progress Report [REDACTED] Progress Report details Student program goals, supports and progress, providing information including:
- The school day consists of 5 hours per day of 1:1, individualized instruction utilizing applied behavior analysis (ABA) and 1 hour of a 2:1 ratio during instructional lunch and leisure skills for a total of 6 hours per day. Data on student performance on goals are collected, graphed, and analyzed daily. In addition, [REDACTED] participates daily in small and large group instruction with 1:1 instruction and support. Progress reports are provided 2 times per year. (Ex S 1); - Student receives speech and language therapy and occupational therapy as related services at school: o Student receives two 45-minute sessions of speech therapy in a 1:1 setting and one 30-minute lunch consultation by a speech therapist; o Student receives two 45-minute sessions of occupational therapy in a 1:1 setting weekly, and one 30-minute lunch consultation by an occupational therapist; o Two sessions of related services per week (1 speech and 1 OT) are cotreatment sessions with an instructor or the lead teacher from Student’s class which functions to collaborate and coordinate services across our multiple disciplines; o Where appropriate, programming incorporates collaboration across the student’s transdisciplinary team; o Student receives a weekly Transdisciplinary Instruction Group. This group is planned through collaboration between all 3 primary providers (Classroom Teacher, Speech Therapist, Occupational Therapist) to address functional, community-based goals. These groups occur for 1 hour each week and are run collaboratively by the speech therapist, occupational therapist, and the classroom teacher, and are supported through 1:1 instruction from classroom staff. (Ex S 1); - Individualized Programming, for the Student, is detailed in areas that include: o Reading o Spelling o Addition (Ex S 2) o Money Identification (Ex S 2-3) o Handwriting o Typing o Engaging in an activity with peers (Ex S 3) o Functional Communication Training o Independent Work Activities (Ex S 4) o Tolerating Hair Accessory, Training Bra and Medical Equipment (Ex S 5) o Community Participation - Behavior Management: A functional behavior assessment (FBA) was conducted, and a corresponding behavior intervention plan (BIP) was developed to address behaviors that interfere with classroom and group participation. The BIP currently includes the following target behaviors: mouthing, biting objects, aggression, elopement, selftouching, tantrums and inappropriate vocalizations (Ex S 6-7); and - Recommendation is made that Student continue within a small ABA classroom where she can receive 1:1 instruction throughout the day in order to acquire and maintain skills. (Ex S 7)
T 2023-2024 [REDACTED] SLT Goals
Student goals are detailed for this area of identified need.
U June 2023 [REDACTED] SLT Progress Report
Student progress is detailed for goals related to Receptive Language, Expressive Language, and Pragmatic Language. (Ex U 1-3)
Recommendation is made that Student continue to receive speech and language therapy.
All goals delineated by Student’s [REDACTED] team will continue to be addressed in conjunction with additional goals identified by the team for the upcoming school year.
V 2023-2024 [REDACTED] OT Goals
Student progress is detailed for goals related Sensory Processing & Integration (Ex V 1), Activities of Daily Living and Self-Care Skills (Ex V 1-2), Gross Motor Coordination (Ex V 2), and Fine Motor Visual Motor/Perceptual (Ex V 2-3). W June 2023 [REDACTED] OT Progress Report
Details Student areas of delay, and assessments, for areas including:
o Sensory Processing & Integration (Ex W 2-3) o Self-Care & Activities of Daily Living (Ex W 3-4) o Gross Motor Coordination (Ex W 4-5) o Fine Motor, Visual Motor, & Visual Perceptual Skills (Ex W 5-6) Recommendation is made for Student to continue to receive occupational therapy 2 times a week individually, once per week in a group with 1:1 instruction and a lunch consultation to support her developmental skill acquisition.
X 2023-2024 [REDACTED] ABA Goals [REDACTED] details the goals relating to the interventions undertaken, via school ABA service and home services.
Student currently receives 8 hours of 1:1 direct home-based ABA service and one hour of Board Certified Behavior Analyst (BCBA) supervision on a weekly basis. Student’s 2023-2024 goals were created to target her skill deficits and to expand on her strengths. Student was informally assessed in June 2023. Her goals were developed following a review of formal assessments completed by the school-based team, through collaboration with her parents and current providers and through informal assessment as determined by the case manager.
Student characteristics and areas of delay are noted along with individualized supports:
- Student requires: o individualized 1:1 programming to acquire, maintain and generalize skills in her home and community environment; o 1:1 support to navigate her home/community setting and remain safe; o to acquire new skills, she requires a token economy, frequent preference assessments to maintain motivation, and systematic fading of prompts; o programming specifically tailored to generalize skills to parents and caregivers, with systematically faded prompting; o the use of task analyses to break down longer chains into small, discrete targets; o rigorous data collection on all targeted skills as well as regular analysis of that data to ensure progress is being made and that appropriate tactics are being implemented accordingly. (Ex V 1) Regarding behaviors, Student’s has maladaptive behaviors, including aggression, elopement, and tantrums. These behaviors interfere with her learning and continue to be a barrier for her participation in her home and community environments. Student’s [REDACTED] case manager and teacher at her school-based placement have worked in collaboration to carry over effective ABA-based tactics and interventions to her home environment including functional communication training, blocking, and re-directing, as well as positive reinforcement for appropriate behavior. (Ex V 1)
Y 2023-2024 [REDACTED] FBA and Corresponding BIP [REDACTED] conducted an FBA and created a corresponding BIP which identifies inappropriate Student behaviors and targets each with interventions. This includes behaviors such as Inappropriate Vocalizations (Ex Y 13-14) and Tantrums (Ex Y 15-16).
Z April 2023 Feeding Therapy Progress Note
Details the provider’s experience, with the Student, over the past four months, setting forth the areas of concern related to oral motor skills and expressive language, as well as the interventions undertaken.
AA 2022 Federal Tax Return
Parent gross income is set forth as about $213,000.00 for the 2022 calendar year.
BB 10/04/2023 Affidavit of[REDACTED] Sworn to on 10/06/2023
Student’s mother provides Testimony that includes:
- Confirming Student diagnosis of Autism, and agreement with recommendation of an ABA program, in school and at home, along with feeding therapy; - Parent notes regression when services are not consistently provided in school and at home (Ex BB 1); - Details the need for feeding therapy; - Concerns with the DOE offered program, and lack of ABA services; - For the current school year, Student started attending [REDACTED] on July 10, 2023. We provided notice of our intent to place Student at [REDACTED] and keep receiving feeding therapy and homebased ABA on June 16, via our attorney’s office; - I am satisfied with [REDACTED]’s program at [REDACTED]; - I receive clear communication from [REDACTED] about Student’s goals and her progress towards those goals. She continues to build on basic reading, spelling, and math skills; - [REDACTED] has a behavioral intervention plan in place and works with Student on sensory regulation; - [REDACTED] provides related services of occupational therapy and speech-language therapy; - I get updates on her progress in related services as well as academics and behavior (Ex BB 2); - Parent signed enrollment contract, with [REDACTED] (Ex N); - In addition to the [REDACTED] program, the Student receives at least 10 hours of ABA per week from [REDACTED]. These services are funded by the DOE under pendency, which allows for up to 12 hours per week; - The [REDACTED] therapist comes to the home and works with her on daily living and self-regulation skills. She travels with us in the community to increase Student’s safety awareness and appropriate behavior in public; - Over the past year, Student’s tendency to run away from us in public has decreased with the help of [REDACTED]’s services. However, Student has a lot of goals to work on and cannot address them all in a six-hour school day; - Home-based services continue to be necessary. In fact, we would use the full mandate of 12 hours per week if a therapist were available to provide all those hours (Ex BB 3-4); - BCBA supervision is part of Student’s home-based program. A BCBA is necessary to create and update goals, interpret data, and understand the underlying basis for interfering behaviors; - I am asking for the mandate of at least 1 hour a week of BCBA supervision and 12 hours a week of ABA outside of school to continue; - Student receives two 45-minute sessions of feeding therapy per week. My husband and I pay for these services and collect reimbursement from the DOE under pendency; - Transportation is also a critical part of Student’s program. She must have transportation in a single-child vehicle due to her history of trauma on the bus. She got into a very serious incident where an older student grabbed her by the hair and lifted her from her seat. We are currently satisfied with transportation by the [REDACTED] Bus Company, as they are familiar with Student and her needs. (Ex BB 3-4)
CC 10/03/2023 Affidavit of[REDACTED] [REDACTED]
Classroom Supervisor and Associate Director of the Upper School at [REDACTED] provided Testimony that included:
- A review of her qualifications; - General characteristics of the [REDACTED], including: o independent special education school focused largely on the needs of students with autism and related developmental disabilities in need of a highly individualized program of ABA; o [REDACTED] provides an ABA program implemented by highly trained staff, including BCBA, small class structure that allows provision of one-to-one (1:1) instruction, a verbal behavior component, social skills training, selfmanagement instruction, appropriate levels of speech/language services incorporated throughout the day depending on the student, occupational therapy at appropriate levels depending on the student, co-treatment sessions so related services goals are included in classroom activities and objectives, access to a sensory gym, inclusion opportunities with nondisabled peers, opportunities to participate in activities in the community, transdisciplinary group instruction, participation in music therapy, parent training and education, and support for other family members such as siblings and grandparents (Ex CC 2); o Students are assessed (Ex CC 2-3); - Familiarity with the Student; - Details regarding the Student’s educational delays and challenges (Ex CC 3-4); - Details regarding the Student’s individualized program to address her needs; - Description of the Student program: o classroom with seven students, one lead teacher, and six 1:1; o Applied Behavior Analysis (ABA) instructors; o a six-hour day and provides five hours each day of 1:1 instruction, including groups where she requires 1:1 instructional support from an ABA instructor or lead teacher and one hour of instruction for lunch and leisure skills with a 2:1 instructional ratio (Ex CC 4); - Student program is individualized to meet her needs, is aligned to New York State alternative learning standards, and components include: o Functional Academics; o Social Communication; o Pre-Vocational/Vocational Skills; o Household Skills; o Self-Care; o Health and Safety; o Self-Determination; o Self-Management; and o Community Participation. (Ex CC 4-5) - Student receives SLT and OT services, and is making progress in these areas (Ex CC
5 & 8); - [REDACTED] provides Parent Counseling and Training (PCAT (Ex CC 5); - Student has continued to make progress across all programming areas; - Student’s individualized programming is detailed relative to her areas of weakness, and details include individualized Student supports (Ex CC 5-7); - A review of Student’s behaviors which require a BIP, and individual support (Ex CC
9-10); - Student continues to require the services and supports delivered via [REDACTED], as well as those provided by [REDACTED] (Ex CC 10-11); - Student has made progress across all domains; and [REDACTED] remains as appropriate placement which can met the Student’s needs. (Ex CC 11) DD 10/03/2023 Affidavit of [REDACTED] [REDACTED]
The Program Supervisor at [REDACTED], which is affiliated with [REDACTED], who serves to supervise Student’s case manager who oversees her home-based ABA program, provided Testimony that included:
- Being fully familiar with Student’s needs; - A review of her qualifications, and role at [REDACTED] (Ex DD 1-2); - Witness describes [REDACTED] as a scientifically-based education center for children 3 to 18 that offers individualized and structured educational services based on each student’s needs. Our comprehensive and supplemental educational and behavioral services are provided year round through one-to-one programming and include ABA, SLT, OT and PT services; - .[REDACTED] offers comprehensive and supplemental educational services in an ABA-based model with related services provided using a transdisciplinary approach. Each child has a highly individualized program that integrates appropriate related services mandates, transdisciplinary collaboration, supervision from a behavior analyst, and individual goals based on the child’s needs and skillset. Goals are developed following formal or informal assessments from each discipline and through parent input via interviews/questionnaires (Ex DD 2); - Services provided, for the Student, for the 2023-2024 school year, include: o $230 per hour for a 1:1 ABA session and o $275 per hour for BCBA/LBA supervision. - The Student receives services from [REDACTED]; - For the Student, [REDACTED] conducted informal assessments to develop Student’s ABA goals for the 2023-2024 school year; - We reviewed the Assessment of Functional Living Skills (AFLS) conducted by [REDACTED], collaborated with her family, and conducted our own probes of skill deficits to assess her current functioning levels in the home and community settings; - These assessments found deficits in the areas of self-management, basic communication, dressing, toileting, grooming, academics, following routines and expectations, and social and classroom skills; - Overall, Student shows deficits across domains and is not showing essential skills needed to independently navigate her community, maintain her hygiene, access social opportunities, and communicate her needs (Ex DD 3); - Student strength and weaknesses, at the start of the 23-24 school year, were detailed (Ex DD 4-5); - Student program and goals were developed, and goals are highly individualized to target Student deficits (Ex DD 4-5); - Student receives a 1:1 ABA program in her home and community environment for approximately 12 hours with 1 hour of BCBA/LBA supervision per week (Ex DD 5); - [REDACTED] Student goals include those that target similar/shared skills as those included in the school based programs, while others (approximately 60%) target skills not worked on in the school based education program (Ex DD 6); - Student has made slow and steady progress across her [REDACTED] goals (Ex DD 7); - [REDACTED] differs from her school-based program in that we have varied targets/programming, we use different materials, and we provide instruction in different settings; - In my opinion, Student requires after school ABA services in addition to her full-time school day program due to her significant deficits in all domains, her rate of skill acquisition and her barriers to learning including her maladaptive behaviors. She does not exhibit age-appropriate communication skills, daily living skills, self-management skills, leisure skills, and academic skills. Her school day does not provide enough time to address all her delays. Further, she requires practice and repetition and must be explicitly taught skills in multiple environments to gain and maintain new skills.
Student’s maladaptive behaviors also interfere with her learning and communication and can be a safety concern in her home and community environment (Ex DD 8); - Student requires 52 week uninterrupted services, due to difficulty with maintenance of skills; and - Student mandate of 12 hours of home based ABA with one hour of supervision, weekly, is appropriate (Ex DD 9).
EE 06/16/23 Ten Day Notice (TDN) with CSE Confirmations
Parent, via Attorney communicates with the DOE, the intent to place Student at [REDACTED], and continue the sought after Student program and services, including those provided by [REDACTED]. Parent also advise the DOE of disagreement with the most recent IEP, and the intent to seek DOE funding for Student services.
FF 23-24 [REDACTED] Invoices [REDACTED] invoice detail dates of service as well as the $[REDACTED] rate billed for each hour of ABA service provided to the Student.
Parent submitted a Closing Brief, outlining the Parent’s position, in light of the evidence accumulated during the Hearing. (IHO Ex V)
Parent’s Closing Brief:
- Reviews the Student challenges, including a diagnosis of Autism Spectrum Disorder, and a variety of challenges; - Parent alleges the DOE failed to offer the Student a FAPE for the 23-24 school year, and seeks, as a result of the alleged failure, to establish an appropriate array of Student services to be delivered via DOE funding (IHO Ex V 1); - The Parent contends the DOE did not meet its burden of establishing an offer of FAPE, for the 22-23 school year (IHO Ex V 1-2); - The Parent program and services are appropriate for the Student, including: o [REDACTED] as an appropriate unilateral placement, which addresses Student special education needs, via assessment, creation of goals and delivery of services (IHO Ex V 2-4); o [REDACTED] services are appropriate, and necessary, inclusive of 12 hours of home-based ABA along with one hour of BCBA supervision per week. (IHO Ex V 4-5); o Two sessions per week of feeding therapy. (Ex C, BB-3). This service was recommended in her most recent neuropsychological evaluation, based on a finding that [REDACTED] ate a very limited number of foods, putting her at risk for nutritional deficiencies, and that she had difficulty with the mechanics of feeding. (Ex H at 6, 8, IHO Ex V 5-6); o Regard Transportation, the Student’s IEP recommends that she receive transportation to and from school through the DOE. (Ex E-42). However, her accommodations need to be specific in order to keep her safe on the way to school and allow her to arrive at school regulated and available for learning.
Student has a history of being handled poorly during school bus rides, and was previously involved in a dangerous incident with another student. (Ex BB-4).
Therefore, it is necessary that Student be transported to school in a singlechild vehicle, and that her transportation be provided by people with a proven ability to accommodate her needs. (IHO Ex V 6); - Parent demonstrated that it would be a financial hardship to front the costs of [REDACTED] on their own, and are seeking an order for direct payment to
[REDACTED]. (Ex AA, IHO Ex V 4)
- Parent Attorney argues Equities favor the Parent who has cooperated with the DOE, and provided timely notice of concerns, as well as a Ten Day Notice. (Ex J, L & M, IHO Ex V 6)
Parent seeks an Order that includes: a) A determination that the DOE failed to offer Student a free, appropriate public education for the 2023-2024 school year; b) A determination that [REDACTED] is reasonably calculated to meet Student’s needs for the 2023-24 school year; c) A determination that the mandate of 12 hours of ABA and one hour of BCBA supervision per week at [REDACTED] is appropriate to meet Student’s needs; d) A determination that two 45-minute sessions of feeding therapy per week are appropriate to meet Student’s needs; e) A determination that the equities do not pose a barrier to funding for [REDACTED], [REDACTED], or feeding therapy; f) An order that the DOE directly fund any tuition owed to [REDACTED] for the 2023-
24 school year that has not yet been paid under pendency; g) An order that the DOE directly fund 12 hours per week of home-based ABA and one hour per week of home-based BCBA supervision, at the provider’s rate; h) An order that the DOE fund and/or reimburse the Parents for two 45-minute feeding therapy sessions per week, at the provider’s rate; i) An order that the DOE continue to provide Student with transportation to and from [REDACTED] in a single-child vehicle, with limited travel time, provided by the [REDACTED] Bus Company, and in the event that the [REDACTED] Bus Company is unavailable, a bus company with staff experienced in working with children with significant sensory and behavioral needs; and j) Any such other, further, and different relief as the IHO determines to be just and fair under the circumstances of the case.
(IHO Ex V 7)
FINDING OF FACTS AND 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 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]).
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 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 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"]).
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 23-24 School Year
The DOE opted not to present a defense to the Parent’s allegations.
The district has presented no witnesses in this matter. Although an IEP is entered into evidence (Ex E), it is well established that an IEP does not on its own, without testimony to explain its appropriateness, establish that a FAPE has been provided. See e.g. R.E. v. N.Y.C. Dep’t of Educ., 694 F. 3d 167, 185-186 (2d Cir. 2012); L.O. v. N.Y.C. Dep’t of Educ., 822 F2d 95,111 (2d Cir. 2016)
The DOE has not evidenced development of an appropriate IEP for the commencement of the 23-24 school year.
Accordingly, I conclude that the district has not met its burden to establish that it provided a FAPE, for the 23-24 school year.
The 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 and Services for the 23-24 School Year
Testimonial and documentary evidence, as reviewed above, support [REDACTED] as an appropriate Student placement for the 23-24 school year, as part of an overall Student Program, which includes [REDACTED] services, Feeding Therapy, and Transportation, as Ordered below.
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 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, via the engaged Student services. (Ex E, H, L, N, O, P, Q, R, S ,T, U, V, W, X, Y, A, BB, CC, DD & FF and T 72, 76-77. 90-91 & 93)
I find that [REDACTED], [REDACTED] and the Related Service Providers, provide special education services specifically tailored to meet the needs of the Student.
I find each service is part of a program that provides an appropriate education, for the Student, for the 23-24 school year.
[REDACTED] TUITION, [REDACTED] SERVICES, and RELATED SERVICES FUNDING
23-24 School Year
I find the Parent is entitled to Student’s [REDACTED] Tuition funding, via the DOE, for the 23-24 school year. [REDACTED] Enrollment Contract sets forth Student 23-24 Tuition, as
$[REDACTED].00. (Ex N 1)
Parent is obligated to payment via signature. (Ex N 5)
Student [REDACTED] services are obtained via Contract tied specifically to DOE funding, and states the Parent is ultimately responsible for payment, in the event DOE funding is not established. (Ex O) [REDACTED] invoices detail dates of service as well as the $230.00 rate billed for each hour of ABA service, provided to the Student. (Ex FF)
Student is evidenced to have established areas of need, and engaged appropriate services relating to Related Services of:
- OT (Ex E, V & W); - SLT (Ex E, T & U); and - Feeding Therapy, via reimbursement at a cost of $75.00 per session (Ex A 11 & 13, E 15, G 1, P 6-8, H 6-8, J 2, Z & BB 1-4).
The DOE has denied a FAPE to the Student for the 22-23 school year.
Parent provides information related to financial capability. (Ex AA)
Recently, issues of relating to direct funding have been clarified, via Cohen v. N.Y.C. Dep't of Educ. United States District Court for the Southern District of New York September 26, 2023,. (Cohen v. N.Y.C. Dep't of Educ., 2023 U.S. Dist. LEXIS 171815)
In part the decision included doing away with any financial capability requirement upon the Parent:
“To place a burden on parents to establish financial inability to pay for an alternative private placement, when the district has failed to provide their child a "free and appropriate public education" as required under the IDEA, entirely contradicts the clear legislative mandate that special education placements are, by definition, to be provided at "no cost to the parent. "N.Y. Educ. Law § 4401(1) (McKinney). The consistent message of this District's decisions is that a child's access to a FAPE "cannot be made to depend on his or her family's financial ability to 'front' the costs of private school tuition." Mr. & Mrs. A v N.Y.C Dep’t of Educ, 769 F. Supp. 2d at 406. To require otherwise will inevitably result in disparate requirements for parents of disabled children based on financial resources, notwithstanding the IDEA's requirement that all children with disabilities are entitled to a free education. Accordingly, the Court finds that Plaintiffs are not required to establish financial hardship in order to seek direct retrospective payment…for their son's 2018-2019 school year.” (Cohen v. N.Y.C. Dep't of Educ., 2023 U.S. Dist. LEXIS 171815 at 5-6)
In this matter the Parents choose to continue Student placement at [REDACTED], with appropriate array of supports and services, without any DOE appropriate alternative.
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 services sought for the 23-24 school year.
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 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]).
In this case there is no dispute as to the Student’s need for specialized transportation services.
The DOE IEP include such services:
- Student needs special transportation accommodations/services as follows: Transportation from the closest safe curb location to school. Reason(s) why the student needs special transportation service and/or accommodations: [Student] requires special education transportation services. She has a medical diagnosis of Autism Spectrum Disorder. (Ex E 42) Amended Pendency Implementation Form adds additional specifics to the Student’s transportation services, drawing upon FOFD (Ex B 22: - Transportation in a single child, climate controlled vehicle with a car booster seat and limited travel time (not to exceed 60 minutes). (IHO Ex IV 1)
Parent evidences additional information regarding Student transportation, calling Transportation a critical part of Student’s program. Parent believes the Student “must have transportation in a single-child vehicle due to her history of trauma on the bus. She got into a very serious incident where an older student grabbed her by the hair and lifted her from her seat. We are currently satisfied with transportation by the [REDACTED] Bus Company, as they are familiar with Student and her needs.” (Ex BB 3-4)
This evidence of need is not controverted in any way by the DOE.
I find evidence supports the provision of a special education transportation for the Student for the 23-24 school year, with appropriate Student specialized services.
Parent, understandably, seeks to continue the same provider.
I do not find it appropriate to limit the transportation company to any one provider, though any such provider would have to meet the specific Student accommodations specified below.
Extended School Year Services (12-month programming)
Parent seeks relief that includes: (h) with respect to the home-based services described above, an order that the Department must, at the Parents' sole discretion, provide or fund home-based sessions that occur on weekdays, weekends, holidays, and vacations over the course of a fifty-two (52) week school year, including the break between the end of the summer session in August and the beginning of the fall session in September, in order to prevent substantial regression, and provide such services at an enhanced rate, if necessary; (Ex D 12)
The DOE IEP includes a provision for 12 month services. (Ex E 38)
Evidence presented is not controverted, and recommends some services be provided in a manner which prevents regression (T 90, Ex J 2 & BB 1):
“Due to her profound deficits, [Student] requires placement in a small, structured ABA-based classroom within a small, specialized, ABA-based school that can provide her with the high level of 1:1 ABA-based instruction she needs in order to learn new skills and prevent regression of skills, as well as appropriate related services, social skills instruction, and behavioral intervention. This has been corroborated by her evaluator, Dr. REDACTED. She also requires home-based 1:1 ABA services and feeding therapy services to generalize her skills across environments and to prevent regression. She tends to regress quickly if tasks and skills are not maintained appropriately. Therefore, she requires constant individualized adult intervention across 12 months to maintain existing skills and acquire new skills. I consistently request this type of placement, and yet the DOE never recommends a placement in alignment with what [Student] needs.” (Ex J 2) “[Student] needs ABA outside of school, as well. She has trouble with safety awareness in the community and needs to be taught to navigate safely when outdoors. She does not understand how to shop at a store; she will grab whatever item she wants and needs to be taught to be reasonable at the store. She experiences regression easily when she does not have consistent services. For example, after an August break, she has a difficult time readjusting to school in September and the first 2-3 weeks are spent re-teaching a lot of the same material. [Student] needs constant practice in all areas of her life in order to retain skills. She currently receives home-based ABA through [REDACTED].” (BB 1)
The IDEA does not automatically require the provision of school services during the summer months for all students with disabilities; rather, such services must be provided when they are a necessary element of a FAPE for the student (see Antignano v. Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11 [E.D.N.Y. Jan. 4, 2010]). Pursuant to State regulations, students "shall be considered for 12-month special services and/or programs in accordance with their need to prevent substantial regression" (8 NYCRR 200.6[k][1]). State regulation defines substantial regression as a "student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year" (8 NYCRR 200.1[aaa]; see 34 CFR 300.106).
The DOE has already acknowledged the Student is entitled to a 12 month school year.
Parent seeks additional layer of services to essentially ensure no gap in service which may result in Student regression. No opposition is presented to this relief, which is supported by the provision of 52 week home based services as Ordered below to be appropriate 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 school year.
2. The Student’s Unilateral Placement, and services, are found to be reasonably calculated to meet the Student’s needs, and are appropriate, for the Student, for the 23-24 school year, and as such shall be provided, and funded as indicated below: Directly Funded by the DOE:
o Student Tuition, for 23-24 attendance at [REDACTED] ([REDACTED]), up to the amount of $[REDACTED].00 o 12 hours per week of home-based ABA and one hour per week of home-based BCBA supervision, at reasonable market rate, such as that currently being paid under Pendency, provided by [REDACTED] ([REDACTED]). This service shall be provided on a 52 week basis; o The DOE shall continue to provide Student with transportation to and from [REDACTED] with the following specialized services: single child vehicle climate controlled vehicle with a car booster seat limited travel time (not to exceed 60 minutes) from the closest safe curb location to school.
Reimbursement to Parent:
o Two 45-minute feeding therapy sessions per week, at reasonable market rate, such as that currently being funded via Pendency; 3. The DOE shall provide Parent with any documents or forms necessary to facilitate services and/or payment under this Order, within ten days of the date of this Order.
4. This decision is subject to appeal and review by the State Review Officer.
DATED: November 7, 2023
DANIEL AJELLO
DANIEL AJELLO
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.
Footnotes
[1] R 2023-2024 [REDACTED] Classroom Goals 5 S June 2023 [REDACTED] Classroom Progress Report 7 T 2023-2024 [REDACTED] SLT Goals 2 U June 2023 [REDACTED] SLT Progress Report 4 V 2023-2024 [REDACTED] OT Goals 3 comprise the Unilateral Placement (UP). (Ex D, T 51) [REDACTED] provides the school based program, while [REDACTED] provides push in ABA services and home based program components. (T 51-52)