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NEW YORK STATE EDUCATION DEPARTMENT
IMPARTIAL DUE PROCESS HEARING
Case Cover Sheet
IHRS or NYC Case No.:250915
School District:[Redacted]
Impartial Hearing Officer:Patricia L. Murrell, Esq., IHO
Request/Complaint Date:July 5, 2023
Date of Appointment:July 11, 2023
Filed/Date of Decision:October 3, 2024
NEW YORK STATE EDUCATION DEPARTMENT
IMPARTIAL DUE PROCESS HEARING
STUDENT, a minor, by and throughCase No. 250915
his/her Parent(s),
[REDACTED]
Petitioners,Patricia L. Murrell, Hearing Officer
- against -
New York City Department of EducationFINDINGS OF FACT AND
School District # [Redacted]DECISION
Respondent.
I. INTRODUCTION 1
This matter comes before the undersigned Impartial Hearing Officer (“Hearing Officer” or “IHO”), pursuant to the impartial hearing request and demand for due process (“Complaint”) filed on July 5, 2023, by the petitioner, [Redacted], the parent (“Petitioner” or “Parent”) of [Redacted], currently a [Redacted]-year-old student with a disability (“Student”), as against the New York City Department of Education (“NYC-DOE”), Committee on Special Education (“CSE”) [Redacted], District [Redacted] (“Respondent” or “District”, together with the Petitioner or Parent, the “Parties”).
On July 11, 2023, this Hearing Officer was appointed to preside over Case No. 250915. The Prehearing Conference (“PHC”) was held on August 16, 2023, during which the Parent confirmed that the primary issues alleged and presented for determination, as detailed in the Complaint, included, inter alia, denial of a free appropriate public education (“FAPE”) for the 2023/2024school year, based on the District’s alleged failure to (i) conduct or consider sufficient evaluative data; (ii) develop an appropriate individualized education program (“IEP”), which included applied behavior analysis (“ABA”); (iii) recommend appropriate special education services and support; and/or (iv) timely recommend a special education placement. The Parent sought District funding for the Student’s unilateral placement in a private school. Status Conference(s) were held on October 10, 2023, November 8, 2023 and November 29, 2023, during which it was reported that the matter had been recommended for settlement and Comptroller approval was being sought. However, on January 11, 2024, the Parent reported that an offer had not, as yet, been extended by the District and requested scheduling of the due process hearing (“Hearing”).
II. JURISDICTION
This Findings of Fact and Decision (“Decision”) is being rendered in accordance with the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et. seq. (“IDEA”); the Federal Regulations implementing IDEA, 34 C.F.R. 300.1 et seq.; Codes, Rules and Regulations of the State of New York, 8 NYCRR § Part 200; New York State Education Law, and its implementing Regulations, Educ. Law Art. 89 § 4404, et. seq.
III. BACKGROUND
This Hearing Officer commenced the Hearing telephonically and via videoconference on February 7, 2024, during which an oral opening statement was presented on the record (“Hearing Record”) by the Petitioner who was represented by [Redacted], Esq., Attorney for the Parent; and the Respondent who was represented by [Redacted], Esq., Attorney for the District, waived its opening statement. On February 28, 2024, the Parent’s proposed exhibits (“A through N”) were proffered for submission, with objections as to Exhibits “C” and “D”, which were overruled; and the District did not seek admission of exhibits into evidence. Pursuant to directive, the ‘Joint Statement of Facts’ 2, and the ‘Statement of Issues to be Adjudicated’ 3 were both submitted on March 6, 2024. Thereafter, on March 19, 2024, the Parent proffered Exhibit “O” into evidence, without objection; the Hearing was Closed; the Respondent did not proffer any witnesses; and Petitioner presented testimony by the Parent; and Program Director of the [Redacted] (“Private School”) [Redacted] (“Program Director”). The witnesses attested that the testimony provided during the Hearing was true and correct; and each of the witnesses were subjected to cross-examination. The Hearing was concluded on March 19, 2024. The Hearing Transcripts were circulated on February 8, 2024, February 29, 2024 and March 21, 2024. The Parent submitted a Post-Hearing/Closing Brief on April 19, 2024;4 however, despite directive, the District failed to submit its Post-Hearing/Closing Brief. The Record was Closed on September 19, 2024.
IV. PRELIMINARY ISSUES PRESENTED
This Hearing Officer certified the following issue(s) for adjudication at the Hearing:
A. Whether the District denied the Student a FAPE during the 2023/2024school year.
B. Whether the Parent was entitled to receive District funding for the Student’s tuition, during the 2023/2024school year.
V. FINDINGS OF FACT
After considering all of the evidence in the Hearing Record, as well as the arguments asserted by both Parties, this Hearing Officer’s Findings of Fact are as follows:
1. The Joint Statement of Facts, together with all supporting documentary and testimonial evidence proffered into the Hearing Record by the Parties, has been fully reviewed, are hereby incorporated by reference into the ‘Findings of Facts’, and will not be restated herein, regarding the Student’s educational development, progress, evaluations, and/or recommendations, except where further elucidation is necessitated.
2. On March 27, 2023, the CSE convened a meeting (“2023 CSE Meeting”), which was attended telephonically by the Parent; Special Education Teacher [Redacted]; District Representative [Redacted]; and Program Director [Redacted] (together, “2023 CSE Team”). During the 2023 CSE Meeting, the Student was classified with Autism; and an IEP was developed with an implementation date of April 10, 2023, for the 2023/2024 school year (“2023 IEP”), which referenced evaluation results from the Young Children2nd Ed. (“DAYC-2”); Vineland Behavior Scale, 3rd Ed. (“VABS-III”); Speech Language Progress Report, dated January 2023; and the Private School Mid-Year Progress Report for the 2022/2023 school year. The 2023 IEP noted that the Student presented with delays in all areas including his academic development, speech and language, attention, and social and emotional regulation skills; which significantly interfered with his ability to remain engaged in classroom and school-based activities and tasks throughout the school day, or to progress in the general education curriculum. The 2023 IEP indicated that the Student required individualized teacher support to complete specially designed instructional assigned tasks within a small student to teacher ratio; and he was using an augmentative and alternative communication (“AAC”) device to assist in vocalizing sounds/words. The 2023 IEP further reported that the Student engaged in disruptive and challenging behaviors, which included dropping to the floor, eloping from his seat, hitting adults, and grabbing toys or food from peers; and in response, the classroom staff was collecting data on the frequency, circumstances and purpose underlying the behaviors, to subsequently develop a behavior plan. Notably, the 2023 IEP neither indicates that any additional evaluations were conducted or considered by the District prior to the 2023 CSE Meeting, nor that the Student needed an assistive technology (“AT”) device, and/or strategies, behavioral interventions plans or other supports to address behaviors that impeded his learning or that of others. During the 2023 CSE Meeting, the Parent expressed certain concerns, which included, inter alia, that a 6:1+1 classroom would not be enough support for the Student given his difficulties with sitting and attending to instruction; he needed ABA instruction, supervised by a BoardCertified-Behavior Analyst (“BCBA”); and the lack of ABA in a D-75 placement would cause regression. Thereafter, the 2023 IEP recommended a twelve-month program consisting of Adaptive Physical Education (“APE”) (5/wk.), in a D-75 Special Class 6:1+1 (35/wk.); together with related services that included 1:1 Occupational Therapy (“OT”) (2x30), 1:1 Physical Therapy (“PT”) (2x30), 1:1 Speech-Language Therapy (“SLT”) (2x30), Group SLT (1x30), and Parent Counseling and Training (“PCAT”) (1x60/month) (“Related Services”) (collectively, the “2023 Recommended Program”). The 2023 IEP indicates that placement in a Special Class in a specialized school 8:1+1 was considered and rejected as not sufficient to meet the Student’s needs; and a Special Class in a specialized school 12:1+(3:1) was considered and rejected as too restrictive at this time. 5
3. On April 23, 2023, Senior Testing Psychologist [Redacted], Psy.D. (“Psychologist”) and Pediatric Neuropsychologist [Redacted], Ph.D. (“Neuropsychologist”) conducted an independent Neuropsychological Evaluation of the Student due to his significant social and communication delays, trouble following directions, lack of progress in school, and his prior diagnosis of Autism Spectrum Disorder (“ASD”) and Attention Deficit Hyperactive Disorder (“ADHD”). It was reported that the Student received Early Intervention Services (“EIS”) since nine (9) months of age, including SLT, OT, PT, Social Skills and ABA therapy. It was reported that the Student has a history of exhibiting tantrums, repetitive, aggressive and destructive behaviors; dysregulation and withdrawal. The 2023 Neuropsychological Evaluation determined that the Student had severe deficits in nonverbal and verbal communication skills; exhibited widespread cognitive impairment, across domains that include attention and functional language; his intellectual abilities were well below expectations for his age and in the 1st percentile; he experienced significant difficulties with inattentive and hyperactive behavior; and resultantly, in addition to Autism, he also met the criteria for Severe Intellectual Disability, Language Disorder, and ADHD Combined Type (together, the “Diagnoses”).
The Psychologist and Neuropsychologist recommended, inter alia, that the Student requires placement in a small classroom of no more than six (6) students; in a special education program that utilizes ABA methodology throughout the day; on an extendedschool-year (“ESY”) basis to prevent regression during the summer months; together with a 1:1 Paraprofessional in class to help manage his Diagnoses. 6
4. On May 3, 2023, [Redacted], BCBA, LBA-NY completed an ABA Skills Assessment Report as part of an Independent Educational Evaluation (“IEE”) of the Student, which indicated that the Student had a documented history of engaging in self-injurious and aggressive behaviors towards adults and his peers; reportedly however, since attending the Private School, there were no behavioral problems reported by the Parent or the Private School. During the BCBA’s direct observation, the Student’s current level of social, behavior and communication skills was evaluated, and he exhibited a variety of maladaptive behaviors, including hyperactivity, vocal stereotypy and dysregulation, which impacted his ability to focus and engage in appropriate behaviors. The Verbal Behavior Milestones Assessment and Placement Program (“VB-MAPP”) was conducted and determined that the Student displays a delay in all areas, including social, cognitive, academic and communication; and his barriers to treatment included impaired manding, tacting skills, motor imitation skills, echoic skills, listening skills, intraverbal skills, social skills, prompt dependency, scrolling, scanning skills, conditional discriminations, self-stimulation, articulation problems and hyperactive behavior. Subsequent to which the BCBA determined that the Student needs a school with an appropriate educational program that targets behavior change/skill acquisition, maintenance and generalization across all environments; and recommended, inter alia, the Student’s continued enrollment in the Private School, which meets his educational needs based on his many core skill deficits, and uses data driven technologies, and incorporation of behavior analytic methods of teaching and instruction. 7
5. On May 23, 2023, the Tuition Agreement and Enrollment Contract for the Student’s attendance at the Private School was fully executed ( “Enrollment Contract”), which set forth, inter alia, tuition for the 2023/2024 school year at one-hundred-sixty-four-thousand-five-hundred $164,500.00) dollars (“Tuition”). Thereafter, on August 10, 2023, Addendum B to the Enrollment Contract was fully executed, which incorporated the cost for Assistive Technology (“AT”); specifically, seven-hundred-fifty ($750.00) dollars for an AAC device for the Student, described as an iPad, protective case and strap, and Proloquo2Go software.8 Notably, the aggregate Tuition cost for 2023/2024 was one-hundred-sixty-five-thousand-two-hundred-fifty ($165,250.00) dollars.
6. On June 20, 2023, a ten-day-notice (“TDN”) was submitted to the District, which advised, inter alia, that the Parent disagreed with the 2023 IEP on the basis that it did not include a recommendation for AT or an ABA program; that no school location letter (“SLL”) had been received for the Student; and that in the absence of an appropriate placement for the 2023/2024 school year, the Student would be [re]enrolled in the Private School. The TDN also requested that a subsequent IEP meeting be held to discuss the recommendations set forth in the District-funded IEE reports, which were also referenced as an attachment in the accompanying TDN email; specifically, IEE Neuropsychological Evaluation, dated April 13, 2023 (“IEE-Neuropsychological”); IEE AT Evaluation, dated May 1, 2023 (“IEE-AT”); IEE SL Evaluation, dated May 1, 2023 (“IEE-SLT”); IEE ABA Skills Assessment, dated May 3, 2023 (“IEE-ABA”); IEE FBA (Functional Behavioral Analysis), dated May 3, 2023 (“IEE-FBA”); IEE OT Evaluation, dated May 5, 2023 (“IEE-OT”); and IEE PT Evaluation, dated May 9, 2023 (“IEE-PT”) (collectively, the ”2023-IEEs”).9
7. Notably, neither the IEE-AT, IEE-SLT, IEE-FBA, IEE-OT nor IEE-PT were submitted by either of the Parties to be included as exhibits/evidence in the Hearing Record.
8. On August 9, 2023, [Redacted] the Director of Operations and Owner of the Private School duly-executed an affidavit, which attested that the Parent had paid one-hundred ($100.00) dollars towards the Tuition, and the balance remain due and owing for the 2023/2024 school year was one-hundred-sixty-five-thousand-one-hundred-fifty ($165,150.00) dollars (“Tuition Affidavit”). 10
9. The On-Site Description indicates that the Private School utilizes principles of ABA and offers an intensive 1:1 program to children with special needs in New York City (“NYC”), who are provided with 12-month, 30-hour/week program, during which they are taught basic language and communication skills, social, play and leisure skills, adaptive living skills, and academics in less restrictive settings to foster autonomy. Each student’s curriculum is designed based on language, behavior and academic-based assessments conducted yearly; data is collected daily so that all curriculum decisions are evidence-based; and the students are instructed on a 1:1 basis by Behavior Technicians trained in ABA, and the classrooms are led by a BCBA and the Academic Director. 11
10. On September 12, 2023, a Pendency Implementation Form was executed by the District, granting Pendency for the Private School Tuition, nunc pro tunc, to July 5, 2023. 12
11. On September 25, 2023, the Private School’s Speech Language Pathologist [Redacted] MA CCC-SLP TSSLD, issued a Speech Language Evaluation Report, which provided an observational assessment of the Student’s skills, including, inter alia, sensory motor, attentiveness, receptive language, receptive language, pragmatic social language, speech, voice, oral and non-oral communication. Subsequent to which, long-term and short-term goals were established, and it was recommended that the Student continue to receive SLT (2/wk.) individually and in a group setting. 13
12. In September 2023, the Private School’s Occupational Therapist [Redacted], MS, OTR/L, issued an Occupational Therapy Evaluation and Goals Report, subsequent to conducting a Sensory Profile Questionnaire, which was designed to measure the Student’s sensory processing abilities and the impact of sensory processing on functional performance in daily life; subsequent to which, long-term and short-term goals were established, and it was recommended that the Student continue to receive 1;1 OT (2/wk.) Group OT (1/wk.).14
13. The Classroom Lead Teacher [Redacted], MA and Program Director [Redacted], Ph.D., LBA, BCBA-D, issued a Mid-Year ABA Progress Report from the Private School, which indicated that the Student was placed in a 6:1+2 classroom that was instructed by a Registered Behavior Technicians (“RBT”) and supervised by a BCBA. It was reported that the Student was learning to use his AAC device to request preferred items and activities; improving his vocalizations tremendously; had quickly mastered matching non-identical objects to pictures and pictures to objects; had learned to start and complete activities independently with minimal assistance; mastered following certain cued instructions; enormously improved his social interactions with peers and instructors; had become more familiar with his AAC device during academic tasks; counts numbers spontaneously; and has improved critical skills including joint attention during programming, on-task behavior while seated and spontaneous verbal requests.
It was determined that the Student continued to need high-level support for skill acquisition and behavior management; and it was recommended that the Student should remain in a restrictive classroom with 1:1 RBT/student ratio, supervised by a BCBA on an ESY basis, so that he can continue to make meaningful progress in school, maintain learned skills and avoid behavioral regression. 15
14. The Petitioner proffered the Program Director [Redacted] as a witness, who is a New York State (“NYS”) Licensed Behavior Analyst (“LBA”); BCBA; holds a Doctorate, Master’s and Bachelor’s in Psychology; and NYS Public School Teacher Certification.
15. The Program Director testified that the Private School is viewed as a verbal behavior program with class sizes ranging from 4:1+5 to 6:1+5, which offers 1:1 ABA and related services to thirty-nine (39) students, five through fourteen (5-14) years of age, who have Autism and similar developmental disabilities and academic deficits in language and social communication. The Program Director further testified that the ABA Program is written and supervised by the BCBA, implemented by the RBT, and the data is collected daily and tracked under the CentralReach platform. The Program Director described the Student’s program, his delays and challenges, behavioral supports, goals sought and the steady progress he made with number recognition, counting, communication, vocalizations, socialization and some behavioral tolerance. The Program Director also confirmed that the Private School’s Mid-Year Progress Report was developed in February 2024. 16
16. The Petitioner proffered the Parent as a witness, who testified regarding the Student’s Diagnoses, educational background, his prior self-injurious and maladaptive behaviors; confirmed her attendance at the CSE meetings held in 2021 and 2022, as well as at the 2023 CSE Meeting, during which the Program Director and Parent advocated for the Student’s continued need of placement in a 1:1 ABA program. In response to which, the Parent testified that the CSE acknowledged that the Student required ABA and stated that they would try to make accommodations for him; thereafter however, she did not receive any further contact from either the CSE or District regarding ABA and/or a recommended placement for the Student’s 2023/2024 school year. The Parent authenticated the Enrollment Contract, Addendum B, Tuition Affidavit, and the TDN, together with the IEEs that were annexed thereto and forwarded to the District. The Parent testified that the Student had made some progress with his communication, use of his AAC device, math, social skills and behavior, but he was still having some ‘meltdowns’. During cross-examination, the Parent further testified that the Student’s behavior had improved to the extent that he was no longer tantruming, kicking others or pulling hair. 17
VI. CONCLUSIONS OF LAW AND DISCUSSION
This Hearing Officer will examine the facts established by documentary and testimonial evidence contained in the Hearing Record; and determine the proper application of Federal and State Regulations, Statutes and Caselaw, to render a Decision that discusses the following, as applicable to the 2023/2024 school year, whether: (1) the District failed to consider sufficient evaluative data; (2) the District failed to develop an appropriate IEP; (3) the District failed to recommend an appropriate placement; (4) the District met its statutory burden of proof, production and persuasion relating to the alleged denials of FAPE; and (5) equitable considerations favor Tuition funding by the District.
A. IDEA
The IDEA’s purpose is “to ensure that all children with disabilities have available to them a free appropriate public education.” T.K. v. N.Y.C. Dep’t of Educ., 810 F.3d 869, 875, (2d Cir. 2016); citing 20 U.S.C. § 1400(d)(1)(A). More particularly, the IDEA seeks to ensure that (1) 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) the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238-239 (2009); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). The Second Circuit finds that, “[i]n practice, this means that [the Districts] have an affirmative obligation to provide a basic floor of opportunity for all children with disabilities, … described [as] an education likely to produce progress, not regression, and one that affords the student with an opportunity greater than mere trivial advancement.” T.K., 810 F.3d 869, 875; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005); quoting Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009);
P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008).
The centerpiece of the IDEA and its principal mechanism for achieving the goal of “a basic floor of opportunity for all children with disabilities” is the IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); D.S. v. Bayonne Bd. of Educ., 54 IDELR 141 (2010); quoting Polk v. Cent. Susquehanna Intermediate Unit, 16, 853 F.2d 171, 173 (3d Cir. 1988). The IEP is the means by which special education and related services are tailored to the unique needs of a particular child. Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017); quoting, Rowley, 458 U.S. 176, 181. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak, 142 F.3d 119, 130; see Rowley, 458 U.S. 176, 203. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” Walczak, 142 F.3d 119, 132; quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989).
B. FAPE
FAPE must be offered to each Student with a disability residing in the District who requires special education services or programs. 20 U.S.C. §1412(a)(1)(A); Educ. Law §4402(2)(a)(b)(2). The 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. 176, 203. 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. 176, 206-207; 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); M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra, 427 F.3d 186, 192. However, under the IDEA, a substantive violation may arise where the substantive content, such as the educational services, contained in the IEP, is insufficient to afford FAPE; and procedural violations may occur when the District fails to comply with the IDEA’s process-based requirements.
The IDEA directs that a two-part inquiry must be made based on substantive grounds and procedural inadequacies, to determine whether a Student received a FAPE. 20 U.S.C. §1415(f)(3)(E). At the first step, Courts examine whether there were procedural violations of the IDEA, namely, “whether the state has complied with the procedures set forth in the IDEA.” Cerra, 427 F.3d 186, 192. If procedural violations are alleged, then a determination is made that the Student did not receive a FAPE, only if the District’s alleged 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 his/her educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. 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 167, 190; M.H., 685 F.3d. 217, 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009). Courts then examine whether the IEP was substantively adequate, namely, whether it was “reasonably calculated to enable the child to receive educational benefit[s].” Cerra, 427 F.3d 186, 192; quoting, Rowley, 458 U.S. 176, 206-
07. Since Rowley, Courts have generally viewed violations of FAPE as substantive when they involve:
(1) content, adequacy and compliance with an IEP;
(2) implementation of the IEP; or (3) failure to educate in the least restrictive learning environment. Substantive inadequacy automatically entitles the Parents to reimbursement. As discussed more fully infra, an examination was undertaken by this Hearing Officer to determine whether the Student’s right to a FAPE was procedurally and/or substantively hindered by the District, during the 2023/2024 school year.
C. IEP
The centerpiece for the implementation of FAPE is the IEP. S.H. v. State-Operated Sch. Dist. of the City of Newark, 336 F.3d 260, 264 (3d Cir. 2003). An appropriate educational program begins with an IEP, which includes a statement of the student’s present levels of academic achievement and functional performance (34 C.F.R. 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008); establishes annual goals designed to meet the student’s needs resulting from the student’s disability and enables him or her to make progress in the general education curriculum 34 C.F.R. 300.320(a)(2)(i); 34 C.F.R. 300.320(2)(i)(A); 8 NYCRR 200.4(d)(2)(iii); and provides for the use of appropriate special education services. 34 C.F.R. 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v)(6). The Supreme Court has indicated that “[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” Endrew F., 137 S. Ct. 988, 999. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created”. Endrew F., 137 S. Ct. 988, 1001. 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); Endrew F., 137 S. Ct. 988, 1001 (the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”); Rowley, 458 U.S. 176, 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 C.F.R. 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc); 8 NYCRR 200.6(a)(1); Newington, 546 F.3d 111, 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d 119, 132. However, in order to determine whether a Student is eligible to receive a FAPE under the IDEA, the District must first conduct an initial evaluation to identify the Student’s educational needs. 20 U.S.C. § 1414(a)(1)(A); 34 C.F.R. 300.301(a). Thereafter, the District must develop and recommend an IEP, which reflects the evaluation results (8 NYCRR § 200.4(d)(2)(i)); classifies the Student under one disability category (34 C.F.R. 300.641(c)); and “include[s] special education and related services tailored to meet the unique needs of a particular child and be reasonably calculated to enable the child to receive educational benefits.” Frank G. v. Dd. Of Educ. Of Hyde Park, 459 F.3d 356, 363 (2d Cir. 2006).
The IDEA directs that, in general, this Impartial Hearing Officer’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). The 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. 176, 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 119, 130; see Rowley, 458 U.S. 176, 203. “The adequacy of a given [IEP] turns on the unique circumstances of the child for whom it was created”. Endrew F., 137 S. Ct. 988, 1001. The IDEA’s purpose is “to ensure that all children with disabilities have available to them a free appropriate public education.” T.K., 810 F.3d 869, 875, citing 20 U.S.C. § 1400(d)(1)(A). Therefore, to provide a FAPE, an IEP developed by the District must be reasonably calculated to enable the Student to receive educational benefits.
a. DEVELOPMENT OF IEP
The Parent asserts that the District’s failure to develop an appropriate IEP for the Student, constituted a denial of FAPE for the 2023/2024 school year.
It is widely held that Federal and State regulations each require that in order to meet its legal obligations, the District must have an IEP in effect at the beginning of each school year for each child with a disability in its jurisdiction. 34 CFR 300.323(a); 8 NYCRR 200.4(e)(1)(ii); Cerra, 427 F.3d 186, 194; K.L. v. New York City Dep’t of Educ., 2012 WL 4017822, at *13 (S.D.N.Y. Aug. 23, 2012), aff’d, 530 Fed. App’x 81 (2d Cir. 2013); B.P. v. New York City Dep’t of Educ., 841 F. Supp.2d 605, 614 (E.D.N.Y. 2012); Tarlowe, 2008 WL 2736027, at *6. In accordance therewith, the IDEA requires a CSE to review and, if necessary, revise the Student’s [IEP] at least annually. 20 U.S.C. §1414(d)(4)(A); 34 CFR 300.324(b)(1); 8 NYCRR 200.4(f). In addition, Federal and State Regulations mandate that the CSE must revise the Student’s IEP, as necessary, to address “[i]nformation about the child provided to, or by, the Parent during the course of a reevaluation of the Student. 34 CFR 300.324(b)(1)(ii)(C); 8 NYCRR 200.4(f)(2)(ii); and State Regulations provide that, if parents believe that their child’s placement is no longer appropriate, they “may refer the student to the [CSE] for review”. 8 NYCRR 200.4(e)(4). State Regulations further provide that, if appropriate, an IEP must be revised to address “any lack of expected progress toward the annual goals and in the general education curriculum . . . the results of any reevaluation conducted . . . and any information about the student provided to, or by, the parents . . . or . . . the student’s anticipated needs.” 8 NYCRR 200.4(f)(2)(i-iii).
In developing recommendations for a student’s IEP, the CSE must consider the results of the initial or most recent evaluation; the student’s strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the student’s performance on any general State or district-wide assessment; as well as, any special factors as set forth in Federal and State regulations. 34 CFR 300.324(a); 8 NYCRR 200.4(d)(2). As to be discussed more fully infra, the Hearing Record reflects that with the exception of the DAYC-2 and VABS-III, both of which were conducted in February 2022, the CSE failed to conduct or consider any other recent evaluative data prior or during the 2023 CSE Meeting. Thereafter, subsequent to the 2023 CSE Meeting but prior to commencement of the 2023/2024 school year, the CSE received the IEEs yet failed to schedule another meeting with the Parent, during which the findings, opinions and results of the IEEs could have been considered, referenced and/or employed to provide adept guidance to the CSE in developing recommendations for an updated or amended educational program and placement suitable for handling the Student’s unique needs for the 2023/2024 school year. Accordingly, “[w]hen a child requires special-education services, a school district’s failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP.” Forest Grove, 557 U.S. 230, 238-239. Here, the Hearing Record is bereft of any indication that the CSE developed an appropriate IEP for the Student. Consequently, in accordance with the findings of Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 450 (2d Cir. 2015); quoting Forest Grove, 557 U.S. 230, 238-239, the District’s failure to develop/provide an appropriate IEP, prior to commencement of the Student’s 2023/2024 school year, constituted a procedural violation of the IDEA.
1. SUFFICIENCY of EVALUATIONS and ASSESSMENTS
The Parent contends that the District failed to consider sufficient evaluative data in advance of developing the 2023 IEP.
Prior to the development of an IEP, the child must be evaluated to determine whether a need for special education exists. Evaluations are a foundational tool by which students are determined [or not] to be eligible for special education and related services under the IDEA. An evaluation of a student must be sufficiently comprehensive to identify all of the student’s special education and related services’ needs, whether or not commonly linked to the disability category in which the student has been classified. 34 C.F.R. 300.304(c)(6); 8 NYCRR 200.4(b)(6)(ix). An initial evaluation of a student must include a physical examination, a psychological evaluation, a social history, a classroom observation of the student, and any other “appropriate assessments or evaluations” as necessary to determine factors contributing to the student’s disability. 8 NYCRR 200.4(b)(1). Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental and academic information about the student, including information provided by the parent that may assist in determining, among other things the content of the student’s IEP. 20 U.S.C. § 1414(b)(2)(A), (B); 34 CFR 300.304(b)(1)(ii); Letter to Clarke, 48 IDELR 77 (OSEP 2007). The District must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. 20 U.S.C. § 1414(b)(2)(C); 34 CFR 300.304(b)(3); 8 NYCRR 200.4(b)(6)(x).
The District may elect to conduct additional evaluations or assessments to appropriately assess the Student in all areas related to the suspected disabilities. 8 NYCRR 200.4(b)(3). However, Federal and State Regulations mandate that the District must conduct an evaluation of a Student where the educational or related services needs of a Student warrant a reevaluation or if the Student’s Parents or Teacher requests a reevaluation. 34 C.F.R. 300.303(a); 8 NYCRR 200.4(b)(4). While a District need not conduct a reevaluation more frequently than once per year unless the Parent and the District agree otherwise. 34 CFR 300.303(b)(1); a reevaluation of a student with a disability must be conducted by a multidisciplinary team or group that includes at least one teacher or specialist with knowledge in the area of the Student’s disability. 8 NYCRR 200.4(b)(4). The reevaluation must be “sufficient to determine the Student’s ability to participate in instructional programs in regular education and the Student’s continuing eligibility for special education.” 8 NYCRR 200.4(b)(5). Therefore, whether it was an initial evaluation or a reevaluation, the District was obligated to ensure that the Student was aptly assessed in relation to his disability, including, where appropriate, social and emotional status. 20 U.S.C. § 1414(b)(3)(B); 34 CFR 300.304(c)(4); 8 NYCRR 200.4(b)(6)(vii).
a. INDEPENDENT EVALUATIONS
Pursuant to the Federal and State procedures for determining a student’s eligibility and educational needs, a “[CSE] and other qualified individuals must draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the student’s physical condition, social or cultural background, and adaptive behavior.” 8 NYCRR 200.4(c)(1); 34 CFR 300.306(c)(i). Further, either an IEE obtained at public expense or a private evaluation obtained at private expense “[m]ust be considered by the school district, if it meets the school district’s criteria, in any decision made with respect to the provision of a [FAPE] for the student.” 8 NYCRR 200.5(g)(1)(vi)(a); 34 CFR 300.502(c)(1). Although the CSE is required to consider reports from privately retained experts, it is not required to adopt their recommendations. G.W. v. Rye City Sch. Dist., 2013 WL 1286154, at *19 (S.D.N.Y. Mar. 29, 2013); C.H. v. Goshen Cent. Sch. Dist., 2013 WL 1285387, at *15 (S.D.N.Y. Mar. 28, 2013); T.B. v. Haverstraw-Stony Point Cent. Sch. Dist., 933 F. Supp. 2d 554, 571 (S.D.N.Y. 2013); Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 (N.D.N.Y. 2004) (noting that even if a district relies on a privately obtained evaluation to determine a student’s levels of functional performance, it need not adopt wholesale the ultimate recommendations made by the private evaluator). However, the CSE is obligated to take under consideration critical information and evaluative material that would facilitate the proper development of an IEP for the Student.
There is no indication in the Hearing Record that the IEEs conducted of the Student subsequent to the 2023 CSE Meeting but prior to commencement of the 2023/2024 school year were afforded any consideration by the CSE, to determine whether the Student’s educational placement, program, related services, goals and/or behavioral strategies required any modifications based on the evaluative findings, opinions or recommendations provided therein by the Parent’s privately retained Psychologist, Neuropsychologist, BCBA, Occupational Therapist and/or Speech Language Pathologist. When determining whether an [IEP] was substantively adequate, a determination must be made as to whether the [IEP] was “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. 176, 207. Accordingly, it was incumbent upon the District to offer evidence during the Hearing that the Student could receive an educational benefit under the Recommended Program at the unidentified D-75 public-school, despite its failure to contemplate the evaluative data contained in the IEEs, which if reasonably considered would have enabled the 2023 CSE Team to properly formulate a determination that incorporated pertinent information regarding the Student’s unique needs and/or challenges, in relation to his (dis)abilities and Diagnoses.
b. FBA/BIP
The Parent asserts that the District’s failure to assess the Student’s behaviors contributed to a denial of the Student’s FAPE.
Under the IDEA, in the case of a Student whose behavior impedes his or her learning or that of others, the District may be required to consider special factors in the development of the Student’s IEP, including positive behavioral interventions, supports and other strategies to address that behavior. 20 U.S.C. §1414(d)(3)(B)(i); 34 CFR 300.324(a)(2)(i); 8 NYCRR 200.4(d)(3)(i); J.A. v. East Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 (S.D.N.Y. 2009); M.M. v. New York City Dep’t of Educ., 583 F. Supp. 2d 498, 510 (S.D.N.Y. 2008); Tarlowe, 2008 WL 2736027, at *8 ; E.H. v. Bd. of Educ. of Shenendehowa Cent. Sch. Dist., 361 Fed. App’x 156, 160 (2d Cir. 2009); A.C., 553 F.3d 165, 172. A District is required to conduct an FBA in an initial evaluation for students who engage in behaviors that impede their learning or that of other students. 8 NYCRR 200.4(b)(1)(v). Notably, New York State Regulations mandate that a District conduct an FBA for a Student who exhibits behavior that impedes learning, and to develop a BIP to address that behavior. T.M., 752 F.3d 145, 169; 8 NYCRR 200.4(b)(1)(v); 8 NYCRR 200.22(b); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 80 (2d Cir. 2014) (“even under New York law, assessments are only required as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disabilities”). 8 NYCRR 200.4(b)(1)(v). However, the Second Circuit has held that, where such analysis is required, “[t]he failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student’s behaviors, leading to their being addressed in the IEP inadequately or not at all.” R.E., 694 F.3d 167, 190.
According to State regulations, an FBA shall be based on multiple sources of data and must be based on more than the Student’s history of presenting problem behaviors (8 NYCRR 200.22(a)(2). An FBA must also include a baseline setting forth the “frequency, duration, intensity and/or latency across activities, settings, people and times of the day,” so that a BIP (if required) may be developed “that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement”. 8 NYCRR 200.22(a)(3). State guidance suggests that the decision of timing and the environment in which an FBA should be conducted is a matter under State policy that has been left to the CSE to decide (“Guide to Quality [IEP] Development and Implementation,” at p. 22, OSEP (Dec. 2010) (noting the student’s need for a BIP must be documented in the IEP, and, prior to the development of the BIP, an FBA either “has [been] or will be conducted”). 18
The Second Circuit has found that under certain circumstances, delaying an FBA until a child commences the recommended educational environment would not be considered a serious procedural violation that constitutes a denial of FAPE. Cabouli v. Chappaqua Cent. Sch. Dist., 202 Fed.Appx. 519, 522 (2d Cir. 2006); M.N. v. Katonah-Lewisboro Sch. Dist., 2016 WL 4939559, at *15 n.24 (S.D.N.Y. Sept. 14, 2016); J.C.S. v. Blind Brook-Rye Union Free Sch. Dist., 2013 WL 3975942, at *13 (S.D.N.Y. Aug. 5, 2013); see also, S.H. ex rel. W.H. v. Eastchester Union Free Sch. Dist., 2011 WL 6108523, at *9 (S.D.N.Y. Dec. 8, 2011) (deferring an FBA until the beginning of the school year or until a child becomes acclimatized to a new location is not considered a denial of FAPE). Under certain circumstances, it is understandable that a District may want to wait for the Student to transfer school environments prior to completing the evaluation. Bd. of Educ. of Wappingers Cent. School Dist. v M.N., 2017 WL 4641219, at *12 (S.D.N.Y. Oct. 13, 2017) (finding that, where the district evaluated the student at his out-of-State residential program and the out-of-State placement differed from the possible district placements, “the sole fact that [the district] did not conduct an FBA prior to the implementation of an IEP does not amount to a denial of FAPE”). Conversely, the Second Circuit stated that “the entire purpose of an FBA is to ensure that the IEP drafters have sufficient information about the student’s behaviors to craft a plan that will appropriately address those behaviors”. R.E., 694 F.3d 167, 190; L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 111 (2d Cir. 2016) (evincing that an FBA should be drafted prior to or at the time of the development of the IEP, which must, by definition be completed before the Student is placed).
Where a determination is made that the Student’s behavior is a manifestation of his or her disability, the CSE is required to conduct an FBA and implement a BIP or, if the Student already has a BIP, review the BIP and modify it as necessary to address the behavior. 20 U.S.C. §1415(k)(1)(F)(i)-(ii); 34 CFR 300.530(f)(1)(i)-(ii); 8 NYCRR 201.3. State Regulations define an FBA as the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment and includes, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it. 8 NYCRR 200.1(r); 8 NYCRR 201.2(h). Where it is determined that a BIP is necessary for the Student, it shall identify: (i) the baseline measure of the problem behavior, including the frequency, duration, intensity and/or latency of the targeted behaviors . . . ; (ii) the intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences for the targeted inappropriate behavior(s) and alternative acceptable behavior(s); and (iii) a schedule to measure the effectiveness of the interventions, including the frequency, duration and intensity of the targeted behaviors at scheduled intervals. 8 NYCRR 200.22(b)(4).
Traditionally, it has been held that neither the failure to conduct an FBA nor develop a BIP automatically renders the IEP deficient or rises to the level of a denial of a FAPE, if upon close examination of the IEP it is determined that the IEP adequately identifies, addresses and prescribes a means to manage the Student’s interfering behaviors. A.C., 553 F.3d 165, 172; C.F.,746 F.3d 68, 80; R.E., 694 F.3d 167, 190; F.L. v. New York City Dep’t of Educ., 553 Fed. App’x 2, 6-7 (2d Cir. Jan. 8, 2014). Here, the 2023 IEP reflects that the 2023 CSE Team was aware that the Student engaged in disruptive and challenging behaviors, which included dropping to the floor, eloping from his seat, hitting adults, and grabbing toys or food from peers; and further admitted that the classroom staff was collecting data on the frequency, circumstances and purpose underlying the behaviors, to subsequently develop a behavior plan. This notwithstanding, the Hearing Record reflects to the contrary, that the 2023 CSE Team determined that the Student did not need strategies, BIPs or other supports to address behaviors that impeded his learning or that of others. Resultantly, the District did not conduct an FBA or develop a BIP to identify, address or otherwise prescribe a means to manage his interfering behaviors prior to commencement of the 2023/2024 school year.
The District neither presented any testimonial evidence nor evaluative materials it relied upon during the 2023 CSE Meeting, which established how the Student could benefit from the recommendations set forth in the 2023 IEP. Hence, the District’s failure to conduct an FBA or develop a BIP is regarded as a serious procedural violation, which prevented the 2023 CSE Team from obtaining information necessary to properly assess the Student, identify strategies to address his unique needs and behavioral challenges, and/or recommend an appropriate program with sufficient related services and supports. Fundamentally, the absence thereof reasonably raises questions as to the appropriateness of the IEP that was developed and special educational programs, placements and provisions that were recommended thereunder to address his needs. “R.E. stands for the unremarkable proposition that when the reports and evaluative materials present at the CSE meeting yield a clear consensus, an [IEP] formulated for the child that fails to provide services consistent with that consensus is not ‘reasonably calculated to enable the child to receive educational benefits’” A.M. v. N.Y.C. Dep’t of Educ., 845 F.3d 523, 543 (2d. Cir. 2017); quoting, Rowley, 458 U.S. 176, 207.
Consequently, it is the determination of this Hearing Officer that the District’s failure to conduct an FBA, develop a BIP, and reasonably consider all evaluative data available prior to commencement of the 2023/204 school year, inclusive of the IEEs, prevented the CSE from obtaining information necessary to properly assess the Student and identify strategies in relation to all areas of his suspected (dis)abilities, prior and subsequent to conducting the 2023 CSE Meeting and/or developing the 2023 IEP. Subsequent to its failure to adequately defend against the alleged denial of FAPE, the District also failed to address its burden of proving that the 2023 IEP did not require further redress to appropriately meet the Student’s unique needs and challenges. Therefore, having acted in opposition to certain statutory requirements, including, inter alia, 20 U.S.C. §1414(b)(3)(B); 34 CFR 300.304(c)(4); 8 NYCRR 200.4(b)(6)(vii), the Hearing Record supports a finding that the procedural deficiencies and substantive violations caused by the District’s inactions resulted in a deprivation of the Student’s educational benefits and impeded his right to a FAPE for the 2023/2024 school year.
2. APPROPRIATENESS OF PROGRAM
The Parent asserts that the District’s failure to provide an appropriate program and placement contributed to and constituted a denial of the Student’s FAPE.
The United States Department of Education (“USDOE”) has noted that it “referred to ‘placement’ as points along the continuum of placement options available for a child with a disability, and ‘location’ as the physical surrounding, such as the classroom, in which a child with a disability receives special education and related services”. Placements, 71 Fed. Reg. 46588 (August 14, 2006). This view is consistent with an Office of Special Education Programs (“OSEP”) opinion, which indicates that the assignment of a particular school is an administrative decision provided it is made in conformance with the CSE’s educational placement recommendation. Letter to Veazey, 37 IDELR 10 (OSEP 2001); White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 (5th Cir. 2003); Veazey v. Ascension Parish Sch. Bd., 2005 WL 19496 (5th Cir. 2005); A.W. v. Fairfax Co. Sch. Bd., 372 F.3d 674, 682 (4th Cir. 2004); Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 (2d Cir. 1980).
While the IDEA requires parental participation in determining the educational placement of a child (34 CFR §§ 300.116, 300.327, 300.501(c)); however, ultimately it is the program of specialized instruction and related service contained in the Student’s IEP that forms the basis for the placement decision. Accordingly, program and “placement decisions must be individually determined on the basis of each child’s abilities and needs and each child’s IEP, and not solely on factors such as . . . availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience”. Reusch v. Fountain, 872 F. Supp. 1421, 1425-26 (D. Md. 1994); Placements, 71 Fed. Reg. 46588; 34 CFR 300.116(b)(2); 8 NYCRR 200.6(a)(2); T.M., 752 F.3d 145, 163 (finding that the IDEA’s LRE requirement is not limited, in the extended school year context, by what programs the school district already offers, but rather must be based on the student’s needs); Adams v. State, 195 F.3d 1141, 1151 (9th Cir. 1999).
i. RECOMMENDED PROGRAM
The IDEA proscribes that the Student is entitled to an IEP, which recommends an appropriate program that offers the requisite interventions and accommodations required to promote progress and support academic progression in an appropriate educational placement. In addition, the Second Circuit dictates that Parents are entitled to rely on an IEP “as written when they decide to [unilaterally] place” their child before the beginning of a school year and that a district may not rely on testimony about actions a school district would have taken to amend a student’s IEP in order to address a student’s needs to rehabilitate a deficient IEP.” Bd. of Educ. of Yorktown Cent. Sch. Dist. v. C.S., 990 F.3d 152, 173 (2d Cir. 2021); R.E., 694 F.3d 167, 187-88 (provides that “[a]t the time the parents must decide whether to make a unilateral placement . . . [t]he appropriate inquiry is into the nature of the program actually offered”). Therefore, an appropriate educational program begins with an IEP, which includes a statement of the student’s present levels of academic achievement and functional performance; (34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe, 2008 WL 2736027, at *6); establishes annual goals designed to meet the student’s needs resulting from the disability and enables him or her to make progress in the general education curriculum); 34 CFR 300.320(a)(2)(i); 34 CFR 300.320(2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)); and provides for the use of appropriate special education services. 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v)(6). Under NYS Law, the Commissioner of Education may approve the provision of “special services or programs” to students with disabilities through a variety of methods, including contracts entered into by boards of education of public schools and private non-residential schools within the State. Educ. Law §§4401(2)(e), 4402(2)(a); 8 NYCRR 200.1(d); 8 NYCRR 200.7. It is the individualized needs of all students with disabilities in a District, which will ultimately determine which special education services shall be rendered by an approved private provider. Educ. Law §4402(2)(a). Accordingly, the Student’s placement must be individually determined based on the Student’s abilities and needs; and to the extent necessary to offer the Student an appropriate educational program, his/her IEP must identify the supplementary aids and services to be provided to the Student. 20 U.S.C. §1414(d)(1)(A)(i)(IV); 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v)(a); 8 NYCRR 200.4(d)(2)(v) (b)(3); Piazza v. Florida Union Free Sch. Dist., 777 F. Supp. 2d 669, 673 (S.D.N.Y. 2011); Gavrity v. New Lebanon Cent. Sch. Dist., 2009 WL 3164435, at *30 (N.D.N.Y. 2009) (discussing the student’s IEP which appropriately identified program modifications, accommodations, and supplementary aids and services).
As discussed more fully, infra, in the absence of a sufficiently stated IEP, the District failed to offer the Student a program that could confer a meaningful educational benefit in relation to his individual needs and (dis)abilities; and/or could otherwise be deemed appropriate or reasonably calculated to enable him to make progress in light of his unique circumstances. In addition, the District failed to proffer any testimonial or documentary evidence, which lends credence to a contention that the Recommended Program would have appropriately addressed the Student’s unique needs. Consequently, it is this Hearing Officer’s determination that the Student was entitled to an appropriate educational placement in a supportive educational program that offered the requisite interventions and accommodations, which were reasonably calculated to enable him to receive educational benefits to address his academic and behavioral needs and challenges, during the 2023/2024 school year.
ii. APPLIED BEHAVIORAL ANALYSIS
The Parent asserts that the District improperly denied the Student 1:1 ABA instruction.
The precise teaching methodology to be used by a student’s teacher is usually a matter to be left to the teacher’s discretion, absent evidence that a specific methodology is necessary. Rowley, 458 U.S. 176, 204; R.B. v. New York City Dep’t of Educ., 589 Fed. App’x 572, 575-
76 (2d Cir. Oct. 29, 2014); A.S. v. New York City Dep’t of Educ., 573 Fed. App’x 63, 66 (2d Cir. July 29, 2014); K.L., 530 Fed. App’x 81, 86; R.E., 694 F.3d 167, 192-94; M.H., 685 F.3d 217,
257. As long as any methodologies referenced in a student’s IEP are “appropriate to the [Student’s] needs,” the omission of a particular methodology is not necessarily a procedural violation. R.B., 589 Fed. App’x 572, 576 (upholding an IEP when there was no evidence that the student “could not make progress with another methodology”); 34 CFR 300.39(a)(3); R.E., 694 F.3d 167, 192-94. However, where the use of a specific methodology is required for the Student to receive an educational benefit, the Student’s IEP should so indicate. R.E., 694 F.3d 167, 194 (finding an IEP substantively inadequate where there was “clear consensus” that a student required a particular methodology, but where the “plan proposed in [the Student’s] IEP” offered “no guarantee” of the use of this methodology). As such, if the evaluative materials before the District recommends a particular methodology, there are no other evaluative materials before the District that suggest otherwise, and the District does not conduct any evaluations “to call into question the opinions and recommendations contained in the evaluative materials,” then, according to the Second Circuit, there is a “clear consensus” requiring that the methodology be placed on the IEP, notwithstanding the testimonial opinion of the District’s CSE member to rely on a broader approach by leaving the methodological question to the discretion of the Teacher implementing the IEP. A.M., 845 F.3d 523, 544-
545. The fact that some reports or evaluative materials do not mention a specific teaching methodology does not negate “clear consensus”. R.E., 694 F.3d 167, 194.
Under certain circumstances, it might be deemed appropriate that the choice of methodology should be left to the Teacher’s discretion; here however, the District has not met its burden of proving that the Recommended Program did not require the inclusion of 1:1 ABA instructional methodologies on the 2023 IEP, in order for the Student to receive a FAPE. This was made more apparent due to the Psychologist and Neuropsychologist’s recommendations elucidated in the IEE-Neuropsychological that the Student required placement in a special education program that utilizes ABA methodology throughout the day, in a small classroom of no more than six (6) students, with a 1:1 Paraprofessional to help manage his Diagnoses. In addition, the BCBA who conducted the IEE-ABA determined that the Student needed an appropriate educational program that targets behavior change/skill acquisition, maintenance and generalization across all environments; and recommended the Student’s continued enrollment in the Private School, which uses [ABA] data driven technologies and incorporation of behavior analytic methods of teaching and instruction. All of which was advocated for by the Parent and Program Director during the 2023 CSE Meeting; each of whom expressed concerns that given his difficulties with sitting and attending to instruction, the Student needed ABA instruction, supervised by a BCBA, the lack of which would cause regression. Therefore, it was incumbent upon the District to offer evidence during the Hearing that a Student diagnosed with Autism, could receive educational benefit without ABA services on the 2023 IEP and/or an amended IEP, which the District neglected to demonstrate. A.M., 845 F.3d 523, 543.
The IDEA proscribes that the Student was entitled to an appropriate educational placement in a supportive special education program, which offered the requisite interventions and accommodations to promote progress and support the Student’s academic progression. While ABA therapies may not be the only appropriate teaching methodology to address the Student’s Autism, in the absence of any other proposed remedy recommended by the District, the Student was entitled to ABA services for the 2023/2024 school year. State regulations provide that “[i]n those instances where a student has been placed in programs containing students with other disabilities, or in a regular class placement, a special education teacher with a background in teaching students with Autism shall provide transitional support services in order to assure that the student’s special education needs are being met”. 8 NYCRR Part 200.13(a)(6). ‘Transitional Support Services’ are defined by State regulation as “temporary services, specified in a student’s [IEP], provided to a regular or special education teacher to aid in the provision of appropriate services to a student with a disability transferring to a regular program or to a program or service in a less restrictive environment.” 8 NYCRR 200.1(ddd). Therefore, the District(s) “are required to furnish appropriate educational programs for students with Autism from the date they become eligible for a [FAPE] until they obtain a high school diploma, or until the end of the school year in which they attain their 21st birthday, whichever occurs first.” 8 NYCRR Part 200.13(c).
Here however, devoid of ABA methodologies, the 2023 IEP failed to offer the Student a program that could confer a meaningful educational benefit in relation to his individual needs and (dis)abilities; and/or could otherwise be deemed appropriate or reasonably calculated to enable him to make progress in light of his unique circumstances. In addition, the District failed to proffer any testimonial or documentary evidence, which lends credence to a contention that absent ABA methodologies, and/or appropriate behavioral and instructional support, the Recommended Program would have appropriately addressed the Student’s Autism. The Supreme Court has held that in order for the District to meet its substantive obligation under the IDEA, the educational program set forth in the Student’s IEP “must be appropriately ambitious in light of [his/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. 988, 1000; J.R. v. New York City Dep’t of Educ., 2017 WL 3446783, at *22 (E.D.N.Y. Aug. 10, 2017).
Consequently, it is this Hearing Officer’s determination that the Student was entitled to an appropriate educational placement in a full-time supportive special education program, which offered the requisite interventions and accommodations of 1:1 ABA instruction, which were reasonably calculated to enable him to receive educational benefits to address his Autism, together with the other academic and behavioral challenges underlying his disabilities. In the absence thereof, the Recommended Program set forth in the 2023 IEP denied the Student a FAPE for the 2023/2024 school year.
iii. RELATED SERVICES
The Parent contends that the District’s failure to recommend and provide the Student with an appropriate level of related services and supports, attributed to a denial of FAPE during the 2023/2024 school year.
An IEP must include a statement of the related services recommended for a student based on such student’s specific needs. 8 NYCRR 200.6(e); 20 U.S.C. § 1414(d)(1)(A)(i)(IV); 34 CFR 300.320(a)(4). “Related services” is defined by the IDEA as “such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education” and includes SLT, PT, OT, including orientation and mobility services, PCAT, school health services, school nurse services, AT services, and other appropriate developmental or corrective support services. 20 U.S.C. § 1401(26)(A); 34 CFR 300.34(a); 8 NYCRR 200.1(qq). State regulation provides that the CSE must base its recommendations for related services as well as the frequency, duration, and location of the provision of related services on the specific needs of a student with a disability and those recommendations must be set forth on the student’s IEP. 8 NYCRR 200.6(e)(1).
1. ASSISTIVE TECHNOLOGY
The Parent contends that the District’s failure to provide AT Training for the Student, Teachers and Providers, constituted a denial of FAPE during the 2023/2024 school year.
Under the IDEA, a CSE may be required to consider special factors in the development of a Student’s IEP. One of the special factors that a CSE must consider is whether the Student “requires assistive technology devices and services, including whether the use of schoolpurchased assistive technology devices is required to be used in the student’s home or in other settings in order for the student to receive a [FAPE].” 8 NYCRR 200.4(d)(3)(v); see 20 U.S.C. § 1414(d)(3)(B)(v); 34 CFR 300.324(a)(2)(v); 20 U.S.C. § 4401(2)(a). When warranted by the Student’s needs, the District must assess the Student’s “functional capabilities” and whether they may be “increase[d], maintain[ed], or improve[d] through the use of assistive technology devices or services.” 34 CFR 300.5; 8 NYCRR 200.1(e); see 34 CFR 300.6; 8 NYCRR 200.1(f). “The evaluation should provide sufficient information to permit the [CSE] to determine whether the student requires assistive technology devices or services in order to receive FAPE.” Letter to Fisher, 23 IDELR 656 (OSEP 1995). Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things, the content of the student’s IEP. 20 U.S.C. § 1414(b)(2)(A); 34 CFR 300.304(b)(1)(ii); see Letter to Clarke, 48 IDELR 77 . In particular, a District must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. 20 U.S.C. § 1414(b)(2)(C); 34 CFR 300.304(b)(3); 8 NYCRR 200.4(b)(6)(x). The District must ensure that the Student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status. 20 U.S.C. § 1414(b)(3)(B); 34 CFR 300.304(c)(4); 8 NYCRR 200.4(b)(6)(vii).
Thereafter, as warranted, the District is mandated to provide assistive technology devices to a child with a disability, if the devices are required for the special education, related services, or supplementary services to be provided as part of the Student’s FAPE. 34 CFR 300.308. State Regulation provides that a Student’s IEP must describe any specialized equipment and adaptive devices needed for the Student to benefit from education. 8 NYCRR 200.4 (c)(2)(vi). To the extent necessary to offer a student an appropriate educational program, an IEP must identify the supplementary aids and services to be provided to the student. 20 U.S.C. §1414(d)(1)(A)(i)(IV); 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v)(a), (b)(3); Piazza, 777 F. Supp. 2d 669, 673. Here, the Hearing Record evinces that the Student presented with, inter alia, speech and language delays, which significantly interfered with his ability to remain engaged in the classroom, with school-based activities and tasks, or to progress in the general education curriculum. Subsequent to which, although the 2023 CSE Team noted that the Student was using an AAC device to assist in vocalizing sounds/words; conversely however, the 2023 IEP indicated that the Student did not need an AT device, and resultantly failed to recommend AT usage for the Student in-school and/or at-home, which was a denial of FAPE.
2. 1:1 PARAPROFESSIONAL
The Parent contends that the CSE failed to offer 1:1 Paraprofessional support.
The District was required to consider four factors in developing an IEP: (1) academic achievement and learning characteristics; (2) social development; (3) physical development; and (4) managerial or behavioral needs. 8 NYCRR 200.1(ww)(3)(i). Further, the District was also required to consider special factors where the Student’s behaviors may impede his learning or that of others. 8 NYCRR 200.4(d)(3); 20 U.S.C. §1414(d)(3)(B); 34 CFR 300.324(a)(2); 20 U.S.C. § 1414(d)(3)(B)(i); 34 CFR 300.324(a)(2)(i); 8 NYCRR 200.4(d)(3)(i); J.A., 603 F. Supp. 2d 684, 689; M.M., 583 F. Supp. 2d 498, 510. While not set forth as a special factor in the IDEA, Federal and State Regulations include as a special factor, a CSE’s consideration of “supplementary school personnel [or 1:1 aide] to meet the individualized needs of a student with a disability”. 8 NYCRR 200.4(d)(3)(vii); 20 U.S.C. §1414(d)(3)(B); 34 CFR 300.324(a)(2). More particularly, the District was tasked with considering the Student’s management needs; goals for reducing the need for 1:1 support; the specific support a 1:1 Paraprofessional would provide; other supports or accommodations that could meet the Student’s needs; the extent or circumstances (e.g. transitions under which the Student needed the Paraprofessional; staffing ratios; how the support of a Paraprofessional might enable the Student to be educated with nondisabled peers; any potential harmful effect of having a Paraprofessional; and the training and support that would be provided to help the Paraprofessional comprehensively understand and address the Student’s needs. 8 NYCRR 200.4(d)(3)(vii).
By definition, a Paraprofessional “provides instructional support” to the Student to which s/he is assigned. 34 CFR §200.58; see also N.Y. Comp. Codes R. & Regs. tit. 8, § 120.6. In NYC Schools, a Paraprofessional assists Teachers with class work, including the daily care of students who have emotional special needs, cognitive disabilities, physical handicaps, autism and other special needs. The responsibilities of the Paraprofessional may include, but are not limited to: 1:1 or small group instruction; reinforcing behavior through the use of positive behavior support; teaching daily living skills such as independent feeding, dressing, toileting; aiding occupational therapists, physical therapists, speech therapists and APE providers during instruction; guiding and assisting students in small group instruction settings with class routines and in transitioning from one activity to the next. In addition, the Paraprofessional may teach students: recreation, motor skills, vocational, socialization and communication; provide language assistance for bilingual students; as well as assist students with ambulation. Further, in NYS, a Policy Guidance contemplates that a proper “goal for all students with disabilities is to promote and maximize independence,” and provides examples of student needs that may require a [CSE] to consider a recommendation for the services of a 1:1 aide or Paraprofessional, including, inter alia, the Student “presents with serious behavior problems with ongoing [daily] incidents of injurious behaviors to self and/or others or student runs away and student has a [FBA] and a [BIP] that is implemented with fidelity”; the Student “cannot participate in a group without constant verbal and/or physical prompting to stay on task and follow directions”; the Student “needs an adult in constant close proximity for direct instruction; requires individualized assistance to transition to and from class more than eighty (80%) percent of the time; and needs an adult in close proximity to supervise social interactions with peers at all times.” Guidelines for Determining a Student with a Disability's Need for a One-to-One Aide, Office of Special Educ. Field Advisory (Jan. 2012), at p. 1 & Attachment 2. 19
Traditionally, Paraprofessionals are assigned if a Student’s behavior is dangerous to himself or others and to help adapt tasks and assignments and provide reinforcement and small group instruction. Here however, despite the District’s awareness that the Student needed a FBA or BIP, which would require implementation of a class-wide behavior support system and strategies to address targeted and challenging behaviors that impeded his learning or that of others; nonetheless, the District failed to recommend a 1:1 Paraprofessional. More particularly, with the absence of a mandate for a 1:1 Paraprofessional, the District failed to recommend an appropriate program that would aid in adequately providing assistance in remediating his selfinjurious, interfering and maladaptive behaviors; instructing the Student; redirecting the Student; and/or implementing the appropriate strategies to address the Student’s academic, social/emotional and behavioral management needs during the 2023/2024 school year. Based thereon, it is this Hearing Officer’s determination that the Recommended Program failed to provide the Student with a FAPE for the 2023/2024 school year.
3. RECOMMENDATION OF PLACEMENT
The Parent asserts that the District’s failure to recommend an educational placement for the Student, constituted a denial of FAPE for the 2023/2024 school year.
The IDEA requires not only an appropriate IEP, but “placement in a school that can fulfill the requirements set forth in the IEP.” D.C. v. N.Y.C. Dep’t of Educ., 950 F. Supp. 2d 494, 509 (S.D.N.Y. 2013). Categorically, there is no requirement in the IDEA that the IEP name a specific school location; T.Y. v. New York City Dep’t of Educ., 584 F.3d 412, 420 (2d Cir. 2009); and parents generally do not have a procedural right in the specific geographical placement of their child. Luo v. Baldwin Union Free Sch. Dist., 2013 WL 1182232, at *5 (E.D.N.Y. Mar. 21, 2013), aff'd, 556 Fed. App’x. 1, 2013 WL 6726899 (2d Cir Dec. 23, 2013); J.L., 2013 WL 625064, at *10; R.E., 694 F.3d 167, 191-92 (district may select a specific public-school site without the advice of the parents); F.L. v. New York City Dep’t of Educ., 2012 WL 4891748, at *11 (S.D.N.Y. Oct. 16, 2012) (parents are not procedurally entitled to participate in decisions regarding public-school site selection). However, the District is required to notify the Parent of the name and location of the special education program and related services, prior to or contemporaneous with the implementation date of Student’s services. T.C. v. New York City Dep’t of Educ., 2016 WL 1261137, at *9 (S.D.N.Y. Mar. 30, 2016) (the parent must necessarily receive some form of notice of the school placement by the start of the school year); see also, Tarlowe, 2008 WL 2736027, at *6. (District’s delay does not violate the IDEA so long as a public-school site is found before the beginning of the school year). As a result, State and Federal regulations mandate that the District must provide parents of a student with a disability with a prior written notice (“PWN”) “a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, educational placement of the student or the provision of a [FAPE] to the student.” 34 CFR 300.503(a); 8 NYCRR 200.1(oo); 8 NYCRR 200.5(a)(1). Pursuant thereto, the PWN must include a description of the action proposed or refused by the District; an explanation of why the District proposed or refused the action; a description of the other options that the CSE considered and the reasons why those options were rejected; a description of each evaluation procedure, assessment, record or report the CSE used as a basis for the proposed or refused action; and a description of the other factors relevant to the CSE’s proposal or refusal. 34 CFR 300.503(b); 8 NYCRR 200.5(a)(3).
Traditionally, the Student’s assignment to a particular school must be made by the District, subsequent to a CSE meeting and in conformity with the IEP recommendation. M.O. v. New York City Dep’t of Educ., 793 F.3d 236, 244-45 (2d Cir. 2015); and relatedly, New York District Courts indicate that the Parent has a right thereafter to timely obtain information about an assigned public-school site from the District. H.L. v. New York City Dep’t of Educ., 2019 WL 181307, at *9 (S.D.N.Y. Jan. 11, 2019) (noting that “[i]n light of M.O., Courts have found that parents have the right to obtain timely and relevant information regarding school placement, in order to evaluate whether the IEP can be implemented at the proposed location”); F.B. v. New York City Dep’t of Educ., 2015 WL 5564446, at *11-*18 (S.D.N.Y. Sept. 21, 2015) (parents “had at least a procedural right to inquire whether the proposed school location had the resources set forth in the IEP”); C.U. v. N.Y. City Dep’t of Educ., 23 F.Supp.3d 210, 295, 2014 WL 2207997, at *14-*16 (S.D.N.Y. 2014) (“parents have the procedural right to evaluate the school assignment [and] acquire relevant information about” it). The Courts further noted that although parents may prefer a particular class ratio, districts are not necessarily required to replicate the identical setting used in private schools. Watson, 325 F. Supp. 2d 141, 145; Z.D. v. Niskayuna Cent. Sch. Dist., 2009 WL 1748794, at *6 (N.D.N.Y. June 19, 2009); M.C. v. Mamaroneck Union Free Sch. Dist., 2018 WL 4997516, at *28 (S.D.N.Y. Sept. 28, 2018).
Here however, the Hearing Record evinces that the District wholly failed to provide the Parent with an SLL, PWN or any other notification advising of a public-school placement prior to or contemporaneous with commencement of the Student’s 2023/2024 school year. Unquestionably, the District acted in opposition to their statutory obligation and failed to provide the Parents with a suitable location so that the Student could access the 2023 Recommended Program. Accordingly, upon full review and due consideration, it is this Hearing Officer’s determination that this Student was entitled to an appropriate supportive educational program, in an appropriate educational placement replete with small, specialized classrooms and 1:1 ABA instruction, which was reasonably calculated to enable the Student to receive educational benefits to address his unique needs. In the absence thereof, the District substantively violated the IDEA and denied the Student a FAPE for the 2023/2024 school year.
D. BURDEN OF PROOF
As a matter of general jurisprudence, the party with the burden of proof has the duty and obligation to prove or disprove a disputed fact; and under the IDEA, the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief. Schaffer, 546 U.S. 49, 59-62 (finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not). However, under New York State law, during an impartial hearing, the burden of proof has been placed on the school district, who bears the burden of proof, production and persuasion; 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 also, Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014); C.F.,746 F.3d 68, 76; R.E., 694 F.3d 167, 184-85. More particularly, to determine whether the Parents are entitled to reimbursement of expenses incurred for the unilateral placement of a disabled child in an IDEA challenge to an [IEP], this Hearing Officer is guided by the three-step Burlington/Carter test: (1) first the District must establish that the placement and services offered by the [IEP] were neither inadequate, inappropriate nor denied the Student a FAPE; however, if the District fails to meet that burden, then the Parents are entitled to tuition reimbursement if (2) they establish that the Student’s unilateral placement was appropriate; and (3) that equitable considerations support the Parents’ claim. See, Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Town of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985).
The District is required under the due process procedures set forth by New York State law to address its burdens by describing its views, based on a fact-specific inquiry set forth in an evidentiary record. The District is tasked with establishing sufficient facts and introducing proper evidence to demonstrate that recommendations made based on the Student’s educational needs were appropriate. In order to meet its burden, the District must show (a) that it complied with the procedural requirements set forth in the IDEA; and (b) that the IEP developed for the Student is reasonably calculated to confer educational benefits to the Student. Rowley, 458 U.S. 176, 206-07; M.S. v. Bd. of Educ., 231 F.3d 96, 102 (2d Cir. 2000), cert. denied, 532 U.S. 942 (2001). Here however, the Hearing Record is devoid of any persuasive testimonial or documentary evidence presented by the District, which explains why the (i) 2023 CSE Meeting was held without conducting or fully considering evaluative data relating to the Student’s needs; (ii) District failed to develop an IEP that recommended an appropriate special education program with adequate levels of educational services and supports; (iii) District failed to recommend an educational placement; or (iv) District failed to sufficiently negate or otherwise refute the facts established in the Hearing Record or relief sought by the Parent. Accordingly, as demonstrated by the findings of fact and conclusions stated herein, it is this Hearing Officer’s determination, as set forth and discussed supra, that the District procedurally and substantively denied the Student a FAPE for the 2023/2024 school year.
E. UNILATERAL PLACEMENT
The Parent contends that subsequent to the CSE’s failure to develop an appropriate IEP and/or recommend an educational placement, the Student was enrolled into the Private School. Further asserting that the Student’s unilateral placement at the Private School was appropriate and the District is mandated to provide funding for the full cost of the Tuition for the Student’s attendance thereat during the 2023/2024 school year, in an amount aggregating one-hundred-sixty-five-thousand-two-hundred-fifty ($165,250.00) dollars.
The IDEA provides Federal funding for the education of children with disabilities, conditioned on the States implementing laws that guarantee educational standards. 20 U.S.C. §1412(a). Students with a disability must receive a FAPE “that emphasizes special education and related services.” 20 U.S.C. §1400(d)(1)(A). The FAPE must “meet the standards of the State educational agency” and conform to the IEP required by 20 U.S.C. §1414(d); 20 U.S.C. §1401(9)(B); 20 U.S.C. §1401(9)(D). “The Act contemplates that such education will be provided where possible in regular public schools, with the child participating as much as possible in the same activities as [non-disabled] children [and] . . . provides for placement in private schools at public expense where this is not possible.” Burlington, 471 U.S. 359, 369.
Under certain conditions, the District may be required to reimburse the parents for their expenditures for private educational services obtained for the Student, if the services offered by the District were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the Parents’ claim. Carter, 510 U.S. 7; Burlington, 471 U.S. 359, 369-70. The Supreme Court found that Congress intended retroactive reimbursement to parents by the District as an available remedy in a proper case under the IDEA. Burlington, 471 U.S. 359, 370-71; Gagliardo, 489 F.3d 105, 111; Cerra, 427 F.3d 186,
192. “Reimbursement merely requires [the 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. 359, 370-71; 20 U.S.C. § 1412(a)(10)(C)(ii); 34 CFR 300.148.
Federal and State law requires that private schools selected for placement must satisfy defined criteria for providing a FAPE and guarantee that students “have the same rights as those [disabled] students placed in facilities of the State.” Antkowiak v. Ambach, 838 F.2d 635, 640 (2d Cir. 1988), abrogated in part by Carter, 510 U.S. 7. Thereafter, in Carter, the Court addressed the narrower issue as to whether a Parent could receive reimbursement for privateschool expenses, when the Parents’ selected school did not satisfy the IDEA’s definition of a FAPE. The Parents’ 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. 7, 14. The Supreme Court held that under IDEA, the Parent may independently place a Student in private school, even when the District objects to the placement. Carter, 510 U.S. 7, 13-14. However, Carter expressly distinguished the District’s direct placement of a child in a non-public school (“NPS”), from the Parents’ unilateral placement of a child in a non-approved NPS. Carter, 510 U.S. 7, 14. On the one hand, the District may consider placement of the Student in an NPS but must be certain that the NPS satisfies the Commissioner’s approval standards. Conversely, the Court found that tuition reimbursement is warranted when the Student is denied a FAPE, and the Parent unilaterally places the Student in an appropriate non-approved NPS. Carter, 510 U.S. 7, 14-15.
a. Appropriateness of Unilateral Placement
Parents seeking tuition reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” Gagliardo, 489 F.3d 105, 112; M.S., 231 F.3d 96, 104; Educ. Law § 4404(1)(c). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [District’s] placement is appropriate should be considered in determining the appropriateness of the parents’ placement…’” Gagliardo, 489 F.3d 105, 112; Frank G., 459 F.3d 356, 364; quoting Rowley, 458 U.S. 176, 207. When determining whether the Parents’ unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d 356, 364; Gagliardo, 489 F.3d 105, 115; citing, 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 only appropriate if it provides educational instruction specially designed to meet the unique needs of the Student. 20 U.S.C. § 1401(29); 34 CFR 300.39(a)(1); Educ. Law § 4401(1); 8 NYCRR 200.1(ww); Rowley, 458 U.S. 176, 188-89; Gagliardo, 489 F.3d 105, 114-15 (even though unilateral placement provided special education, evidence did not show that it provided special education services specifically needed by the student); Frank G., 459 F.3d 356, 365.
i. Private School Program
Traditionally, an appropriate educational program begins with an IEP, which includes a statement of the Student’s present levels of academic achievement and functional performance; establishes annual goals designed to meet the Student’s needs resulting from the Student’s disability and enables him or her to make progress in the general education curriculum; and provides for the use of appropriate special education services. However, even in the absence of a formulated IEP, no one factor is necessarily dispositive in determining whether a Parents’ unilateral placement is reasonably calculated to enable the Student to receive educational benefits. Grades, test scores and regular advancement may constitute evidence that the Student 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 the Student’s individual needs. To qualify for reimbursement under the IDEA, the Parent need not show that the placement provides every special service necessary to maximize the Student’s potential. Frank G., 459 F.3d 356, 364-65. The Parent will need only to demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a Student with disabilities, supported by such services as are necessary to permit the Student to benefit from instruction. Gagliardo, 489 F.3d 105, 112.
The On-Site Description indicates that the Private School utilizes principles of ABA and offers an intensive ESY 1:1 program to thirty-nine (39) students, aged five through fourteen (5-14) who have Autism and similar developmental disabilities, who are taught basic language and communication skills, social, play and leisure skills, adaptive living skills, and academics in less restrictive settings to foster autonomy. Notably, a unilateral placement is not deemed appropriate simply because it removes a student from an anxiety-provoking environment, as avoiding a need does not serve the same purpose or have the same effect as addressing it; rather, the placement must be tailored to address the student’s specific needs to qualify for reimbursement under the IDEA. John M. v Brentwood Union Free Sch. Dist., 2015 WL 5695648, at *9 (E.D.N.Y. Sept. 28, 2015). W.A. v. Hendrick Hudson C. Sch. Dist., 219 F. Supp. 3d 421, 472, 474 (S.D.N.Y. 2016) (when assessing the propriety of a unilateral placement [one should] consider “totality of the circumstances” including grades, test scores, regular advancement, other objective evidence and attendance). Here, the Private School provided a canopy of the structure and support required to address the Student’s specific academic deficits and needs related to his (dis)abilities. As demonstrated more fully infra, the Hearing Record supports a finding that the decision to place the Student at the Private School for the 2023/2024 school year was appropriate.
ii. Specially Designed Instruction
In an apparent retreat from the standard, articulated in Gagliardo, that the unilateral placement must provide instruction specially designed to meet the student’s unique needs, supported by services necessary to permit the student to benefit from instruction (Gagliardo, 489 F.3d 105, 112; Frank G., 459 F.3d 356, 364-65), the Courts have deemed evidence of the general educational milieu of a unilateral placement sufficient for purposes of tuition reimbursement. T.K., 810 F.3d 869, 878. The Private School designed an individualized ABA program and curriculum for the Student based on language, behavior and academic-based assessments; provided instruction in class sizes ranging from 4:1+5 to 6:1+5, on a 1:1 basis by RBT’s trained in ABA, who were supervised by a BCBA and the Academic Director. Facially, the Private School may be viewed as the type of NPS that offers the kind of benefits that parents of any student would prefer, such as a small class size and an expansive curriculum; however, notwithstanding the more relaxed legal standard as applied to a Parent’s burden of proving the appropriateness of a unilateral placement, the Hearing Record sufficiently shows that the Private School offered specially designed instruction to address his identified disabilities and unique needs. Accordingly, it is this Hearing Officer’s finding that the Private School constituted an appropriate placement for the 2023/2024 school year.
iii. Student’s Progress
The Second Circuit has noted that while evidence of the Student’s actual progress is “relevant to the court’s review, . . . such progress does not [in and of] itself demonstrate that a private placement was appropriate”. Gagliardo, 489 F.3d 105, 115; Berger, 348 F.3d 513, 522; Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 (1st Cir.2002). It is generally understood that in a private school “it is more difficult to assess the significance of grades and regular advancement”. Frank G., 459 F.3d 356, 364. Therefore, evidence of academic progress is not dispositive in determining whether a Student’s unilateral placement is appropriate. Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 (S.D.N.Y. Feb. 4, 2013); M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App’x 76, 78 (2d Cir. Mar. 29, 2013). However, a finding of progress is, nevertheless, a relevant factor to be considered. Gagliardo, 489 F.3d 105, 115, citing Berger, 348 F.3d 513, 522; T.K., 810 F.3d 869, 878. Similarly, “if the child’s lack of progress under a particular IEP does not render the IEP inappropriate . . . the fact that the child may not have progressed under the parents’ chosen program should not automatically mean that the program was inappropriate at the time the placement decision was made.” C.B., 2005 WL 1388964, at *18; citing Antonaccio v. Bd. of Educ. of Arlington Cent. Sch. Dist., 281 F. Supp. 2d at 710, 724 (S.D.N.Y. 2003).
Here, the Hearing Record evinces that the Student had improved his vocalizations tremendously; quickly mastered matching non-identical objects to pictures and pictures to objects; learned to start and complete activities independently with minimal assistance; mastered following certain cued instructions; enormously improved his social interactions with peers and instructors; had become more familiar with his AAC device during academic tasks; counts numbers spontaneously; and has improved critical skills including joint attention during programming, on-task behavior while seated and spontaneous verbal requests. It was further reported that the Student made steady progress with number recognition, counting, communication, vocalizations, math socialization and had developed some behavioral tolerance. Accordingly, for the reasons discussed supra, the Hearing Record contains sufficient evidence to support a finding that the Parents have met the burden to show that the Student’s placement at the Private School was appropriate. In reaching this conclusion, the “totality of the circumstances” have been considered, and this Hearing Officer has determined that the Parents’ unilateral placement reasonably served the Student’s individual needs; providing educational instruction specially designed to meet the Student’s unique needs; with some demonstrated progress supported by educational services found necessary to permit the Student to benefit from instruction at the Private School during the 2023/2024 school year.
iv. Least Restrictive Environment
Traditionally, the Student’s recommended program must be provided in the 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); 8 NYCRR 200.6(a)(1); Newington, 546 F.3d 111, 114; Gagliardo, 489 F.3d 105, 108; Walczak, 142 F.3d 119, 132; R.B. v. New York City Dep’t of Educ., 603 Fed. App’x 36, 40 (2d Cir. Mar. 19, 2015) (stating that “[t]he requirement that students be educated in the least restrictive environment applies to the type of classroom setting, not the level of additional support a student receives within a placement”); T.C., 2016 WL 1261137 at *13 (stating that “[a] less restrictive environment refers to the ratio of special education to general education students in the same classroom, not the ratio of special education students to teachers”). However, “while the restrictiveness of a private placement is a factor [in assessing the appropriateness of a unilateral placement], by no means is it dispositive”; and that “[r]estrictiveness may be relevant in choosing between two or more otherwise appropriate private placement alternatives, or in considering whether a private placement would be more restrictive than necessary to meet the child’s needs, but where the public school system denied the child a FAPE, the restrictiveness of the private placement cannot be measured against the restrictiveness of the public school option.” C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837, 840 (2d Cir. 2014).
The Second Circuit Court reasoned that “parents whose children are denied a FAPE may be and often are forced to turn to specialized private schools that educate only disabled children. Such private schools are necessarily restrictive as they do not educate disabled and nondisabled children together and may be more restrictive than the public school from which the child was removed. Inflexibly requiring that the parents secure a private school that is nonrestrictive, or at least as nonrestrictive as the FAPE-denying public school, would undermine the right of unilateral withdrawal as recognized by the Supreme Court in Burlington. See 471 U.S. 359, 370; C.L., 744 F.3d 826, 837; Cleveland Heights-Univ. Heights City Sch. Dist. v. Boss ex rel. Boss, 144 F.3d 391. 400 (6th Cir. 1998) (noting Congress did not intend for a parent to choose between, on the one hand, letting a child remain in FAPE-denying public school, and, on the other hand, removing the child to specialized private school without tuition reimbursement merely because the specialized private school is more restrictive than a FAPE-denying public school). As demonstrated supra, the District has substantively denied the Student a FAPE; accordingly, it this Hearing Officer’s finding that LRE should not be a deciding factor applicable to the Parents’ unilateral placement of the Student at the Private School.
b. Balancing of the Equities
Having found that the unilateral placement was appropriate for the 2023/2024 school year, the last determinant for tuition reimbursement is whether the Parents’ claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. Burlington, 471 U.S. 359, 374; R.E., 694 F.3d 167, 185, 194; M.C., 226 F.3d 60, 68. “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.” Carter, 510 U.S. 7, 16; L.K., 674 Fed. App’x 100, 101.
Traditionally, tuition funding may be denied due to the parent’s failure to timely assert the inappropriateness of an IEP, failure 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). The Second Circuit identified certain 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. E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 461 (2d Cir. 2014); C.L., 744 F.3d 826, 840 (“[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”).
i. Parents’ Notice of Unilateral Placement
More particularly, Federal and State regulations provide that tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent IEP meeting prior to their removal of the student from public school, or by written notice ten (10) 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); 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 rather than mandatory, 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 150, 160; Rafferty, 315 F.3d 21, 27; Frank G., 459 F.3d 356, 376; Voluntown, 226 F.3d 60, 68. Failure to adhere to the ten-day-notice requirement does not serve as an automatic categorical bar to a parent’s claim for tuition reimbursement, particularly where the school district has not asserted that any prejudice was suffered due to the parent’s untimely notice of the student’s unilateral placement. The Third Circuit instructs that a Hearing Officer must conduct an “equitable analysis” to determine whether any reimbursement award may be equitably reduced based on § 1412(a)(10)(C)(iii)(I); and to what extent the District was prejudiced by receiving the Parents’ late notice. Upper Freehold Reg’l Bd. of Educ. v. T.W., 496 F. App’ 238, 244 (3d Cir. 2012).
It is well-settled that, even when a District fails to provide a FAPE and the placement of a Student in a private school is appropriate, the adjudicator retains “discretion to reduce the amount of a reimbursement award if the equities so warrant” 20 U.S.C. § 1412(a)(10)(C) (tuition reimbursement may be denied “upon a judicial finding of unreasonableness with respect to actions taken by the parents”); including for failure to “give the school district adequate notice of their intent to enroll the child in private school.” Forest Grove, 557 U.S. 230, 247; C.H. v. Cape Henlopen Sch. Dist., 606 F.3d 59, 71 (3d Cir. 2010). The discretionary nature of the notice provision is reflected in the plain language of the statute, which provides that the cost of reimbursement “may be reduced or denied” for lack of adequate notice, rather than must be denied. 20 U.S.C.A. § 1412(a)(10)(C)(iii). Indeed, several courts have exercised their equitable discretion to permit parents to recover the full or partial cost of reimbursement, despite the parents’ failure to provide timely notice as required under IDEA and the State regulations. W.M. v. Lakeland Cent. Sch. Dist., 783 F. Supp. 2d 497, 505 (S.D.N.Y. 2011) (finding that, despite the parents’ failure to provide the school with timely notice of their intent to remove their child from public school, “the equities favor[ed] providing partial reimbursement to the [parents].”); J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 676 (S.D.N.Y. 2011) (finding that, despite the parents’ failure to comply with IDEA’s notice provision, “in the exercise of its discretion, and taking into consideration the record as well as the findings of the [administrative tribunal], . . . equitable considerations justif[ied] reducing the parents’ tuition reimbursement request by 75%.”).
Accordingly, this Hearing Officer is required to exercise broad discretion and perform an equitable analysis, even where it is determined that the District failed to provide a FAPE and the Student’s unilateral placement is appropriate. However, there is no indication that the Parent unreasonably failed to provide timely notice of the unilateral placement to the District. 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 CFR 300.148(d)(1). The Hearing Record contains documentary and testimonial evidence demonstrating that the Parents provided a TDN on June 20, 2023, which informed the District that the CSE had failed to develop an appropriate IEP or timely recommend an educational placement for the 2023/2024 school year. The TDN further advised that in the absence thereof, the Student would be enrolled in the Private School, for which the Parents would seek Tuition reimbursement and/or funding for the Student’s placement in the Private School, during the 2023/2024 school year. The District did not assert that any prejudice was suffered by the TDN; and the facts of this case do not remotely approach any uncooperativeness by the Parent, the type of which Courts have found to justify denial of tuition reimbursement altogether. S.W. v. New York City Dep’t of Educ., 646 F.Supp.2d 346, 364 (S.D.N.Y. 2009) (denying tuition reimbursement because the plaintiff did not give written notice to the department of education that she was rejecting the public-school placement and enrolling the student in a private school until four months after the student began attending the private school, seven months after the CSE meeting, and three months after visiting the public-school placement); Carmel Cent. Sch. Dist. v. V.P., 373 F.Supp.2d 402, 416 (S.D.N.Y. 2005) (declining to award tuition reimbursement where the parents “never had the slightest intention of allowing the child to be educated in the public school and did everything possible so that they could frustrate a timely review of [the child’s] condition” before enrolling the child in a private school); J.S., 826 F.Supp.2d 635, 675. Consequently, under the facts and circumstances stated herein, this Hearing Officer finds that denial of the Parents’ Tuition reimbursement for the Student’s enrollment in the Private School would be both unsubstantiated and inequitable.
ii. Parents’ Cooperation with District
The Supreme Court stated that “[t]he core of the [IDEA] is the cooperative process that it establishes between parents and schools.” Schaffer, 546 U.S. 49, 53, citing Rowley, 458 U.S. 176, 205-06. The Second Circuit has held that where a Parent cooperates with a District in its attempts to develop an appropriate educational program for the Student, “their pursuit of a private placement [i]s not a basis for denying their [request for] tuition reimbursement, even assuming . . . that the parents never intended to keep [the student] in public school.” C.L., 744 F.3d 826, 840. New York State Regulations impose specific requirements for District placements such as: (i) levels of academic or educational achievement and learning characteristics; (ii) levels of social development; (iii) levels of physical development; and (iv) the management needs of the students in the classroom as well as the specific age range of the students. NYCRR 8 §200.6(h). Ultimately, both the Parents and the District must take certain affirmative steps to ensure completion of the placement process.
The Hearing Record does not reflect that the Parents were uncooperative at any point; obstructive in providing evaluative information and timely responses to the District; reluctant to attend a CSE Meeting; or otherwise, unwilling to consider an alternative placement. As such, the Hearing Record does not support a finding that the Parent failed to cooperate with the District; and the District has not alleged any equitable factors that would preclude an award of Tuition reimbursement or funding of the cost of the Student’s attendance at the Private School. Therefore, the Parents’ notice of intent to unilaterally place the Student at the Private School, was timely; as the TDN fully enunciated the Parents’ basis for the unilateral placement and afforded the District an opportunity to resolve the matter, prior to enrolling the Student in the Private School and prior to filing the Complaint. Consequently, it is this Hearing Officer’s determination that the District failed to offer the Student a FAPE for the 2023/2024 school year; the unilateral placement was appropriate; and equitable considerations favor the Parents.
F. RELIEF – FUNDING for PRIVATE SCHOOL TUITION
The Parent contends that the Student’s unilateral placement in the Private School should be determined as appropriate; and as such, the District should be directed to provide funding for the full cost of the Student’s Tuition thereat during the 2023/2024 school year. It is well settled that unlike procedural violations, which singularly will not result in a FAPE denial, “[s]ubstantive inadequacy automatically entitles the parents to reimbursement.” R.E., 694 F.3d 167, 190. As demonstrated supra, the procedural deficiencies and substantive inadequacies underlying the IEP denied the Student a FAPE in 2023/2024.
Districts can be directed to make retrospective tuition payments directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) due to a lack of financial resources, the parents have not made tuition payments but are legally obligated to do so. Mr. and Mrs. A., 769 F. Supp. 2d 403, 406 (2011). However, even where the Parents have the financial means to front the initial costs of tuition for enrollment in a private school, the District is not otherwise excused from its responsibility to provide a “free” appropriate public education to the Student. See, Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998) (opining that such financial disputes should be resolved within the administrative hearing process). In analyzing the earlier findings of Carter, Burlington, and Rowley, the Connors Court aptly provided that “a school’s non-approval status cannot be the justification for denying a child access to needed educational services in all situations. In particular, when a child’s access to a free and appropriate public education in a substantive sense conflicts with the state’s approval process, Carter instructs that the State’s approval process must give way. The IDEA requires that special education services are to be provided “at no cost to parents,” 20 U.S.C. § 1401(29), and numerous provisions of IDEA reflect Congress’ determination that the guarantee of a FAPE should extend to all children with disabilities, regardless of their financial means. 20 U.S.C. § 1437(b)(7).
As established, supra, the Hearing Record demonstrates that the District substantively and procedurally violated the IDEA and denied the Student a FAPE; specifically, the District failed to conduct or consider sufficient evaluative data when developing the 2023 IEP; and consequently, failed to recommend an appropriate program and placement for the Student’s 2023/2024 school year. Based on the foregoing, the evidence in the Hearing Record demonstrates that the Parents’ placement of the Student in the Private School during the 2023/2024 school year was reasonably calculated to meet his unique academic, social/emotional and behavioral needs; and equitable considerations warrant an award in favor of the Petitioners, granting full funding for the cost of Tuition in the Private School during the 2023/2024 school year. Accordingly, this Hearing Officer finds that the Parent’s placement of the Student in the Private School was appropriate; and has reasonably contributed to provide a meaningful educational benefit to the Student. In addition, this Hearing Officer concludes that the appropriateness of the Student’s unilateral placement in the Private School meets the standards of the Burlington/Carter Test for tuition reimbursement; and therefore, the District is directed to provide full Tuition funding for the Student’s attendance in the Private School, during the 2023/2024 school year. More particularly, within ten (10) business days of the Parents’ presentment of the ‘Tuition Affidavit’, evidenced herein as Exhibit “I”, the District shall remit one-hundred ($100.00) dollars directly to the Parent, as a reimbursement for the downpayment made towards the Tuition; and the District shall remit full payment directly to the Private School in an amount not to exceed one-hundred-sixty-five-thousand-one-hundred-fifty ($165,150.00) dollars, for the total cost and balance of Tuition due and outstanding to the Private School for the Student’s attendance thereat, during the 2023/2024 school year.
G. RELIEF SOUGHT FOR ADDITIONAL CLAIMS
As stated supra, in electing not to present appropriate documentary or testimonial evidence sufficient to refute certain allegations raised in the Complaint, the District failed to satisfactorily meet its burden in demonstrating that a FAPE was offered to the Student during the 2023/2024 school year. In response, some might assert that the Parents should axiomatically prevail under Prong I based solely on the District’s absence of adequate evidence in the Hearing Record, which could only be viewed as a request for a default judgment against the District. However, an impartial hearing officer is not automatically required to order any and all relief requested by the Parents, as it has been held that an outright default judgment awarding compensatory education or any relief requested, without question, is a disfavored outcome even in those instances where the District’s conduct in denying the Student a FAPE and [thereafter] in failing to actively participate in the impartial hearing process is, viewed by some, as egregious. Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005); G.M. v. Dry Creek Joint Elementary Sch. Dist., 595 F. App’x 698, 699 (9th Cir. 2014); Jalloh v. Dist. of Columbia, 535 F. Supp. 2d 13, 19-20 (D.D.C. 2008); Sykes v. Dist. of Columbia, 518 F. Supp. 2d 261, 267 (D.D.C. 2007).
As such, notwithstanding whether the relief sought relates to an alleged denial of FAPE, tuition funding or a compensatory award, the IDEA requires each IHO to reach a determination founded on substantive grounds based on the contents of the hearing record. Accordingly, this Hearing Officer can neither render a declaratory nor default judgement on the basis of insufficient factual evidence in the Hearing Record. More particularly, an IHO is not vested with “the inherent power to make up remedies out of whole cloth”. S. Kingstown Sch. Comm. v. Joanna S., 2014 WL 197859, at *9 n.9 (D.R.I. Jan. 14, 2014), aff’d, 773 F.3d 344 (1st Cir. 2014). State regulations provide in relevant part that “[t]he decision of the [IHO] shall set forth the reasons and the factual basis for the determination. . . [and] shall reference the hearing record to support the findings of fact.” 8 NYCRR 200.5(j)(5)(v). Additionally noting that neither IHOs nor State Review Officers (“SROs”) have authority to enforce prior decisions rendered by administrative hearing officers, much less to enforce decisions of the courts. Educ. Law §§ 440([1)(a); (2); see e.g., A.R. v. New York City Dep’t of Educ., 407 F.3d 65, 76, 78 n.13 (2d Cir. 2005) (specifically, IHOs do not retain jurisdiction to enforce even their orders, and that a party who receives a favorable administrative determination may seek enforcement in court); A.T. v. New York State Educ. Dep’t, 1998 WL 765371, at *7, *9-*10 & n.16 (E.D.N.Y. Aug. 4, 1998). The scope of the Hearing must be strictly limited to the issues asserted within the four corners of the Complaint. 8 N.Y.C.R.R. § 200.5 (j)(l)(ii); 20 U.S.C. § 1415(F)(3)(b); B.P., 841 F. Supp. 2d 605, 611; R.C. ex rel. M.C. v. Byram Hills School Dist., No. 11 Civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Further, the Courts have traditionally distinguished between systemic violations that should be addressed by the Federal Courts, as opposed to “technical questions of how to define and treat individual students’ learning disabilities, which are best addressed by administrators”. Levine v. Greece Cent. Sch. Dist., 2009 WL 261470, at *9 (W.D.N.Y. 2009), aff'd, 353 Fed. App’x 461 (2d Cir. Nov. 12, 2009); Dean v. Sch. Dist. of City of Niagara Falls, 615 F. Supp. 2d 63, 70 (W.D.N.Y. 2009).
Here, certain issues for adjudication were provided in advance of the Hearing; set forth in the Statement of Issues to be Adjudicated; addressed by the witnesses during the Hearing; delineated in the Parties’ Closing Brief(s); and now decided herein by this Hearing Officer. Remaining however, are certain bare allegations or claims presented in the Complaint, which do not have adequate factual evidence in the Hearing Record that would fully satisfy the factual basis required to render a determination and/or otherwise support a finding that the Student was either denied a FAPE or his rights violated, as a result of the District’s alleged (in)actions during the 2023/2024 school year. Consequently, due to the absence of sufficient testimonial or documentary evidence supported by the Hearing Record in relation to the aforementioned issues/claims, further consideration by this Hearing Officer cannot be undertaken; and accordingly, the Parents’ request for relief of any remaining issues or claims, which have not been specifically addressed herein, must be Denied.
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ORDER
WHEREFORE IT APPEARING that the Hearing Record adequately demonstrates that after full consideration of the testimonial and documentary evidence presented, together with the applicable Federal and State Regulations, and the Conclusions of Law, this Hearing Officer has determined inter alia, that during the 2023/2024 school year, the (i) District failed to conduct or consider sufficient evaluative data in advance of developing the 2023 IEP; (ii) District failed to recommend an appropriate program and related services; (iii) District failed to recommend an educational placement (iv) District failed to meet its statutory burden of proof, production and persuasion relating to the alleged denial(s) of FAPE; and (v) equitable considerations favor the District’s funding of the Student’s Tuition for her attendance at the Private School, during the 2023/2024 school year.
IT IS HEREBY ORDERED that the District’s cumulative procedural and substantive violations under the IDEA, denied the Student a FAPE during the 2023/2024school year; and
IT IS HEREBY FURTHER ORDERED that the Parent’s unilateral placement of the Student in the Private School during the 2023/2024 school year was appropriate under the IDEA, and equitable considerations favor the District’s funding of the full cost of Tuition for the Student’s attendance thereat during the 2023/2024 school year, in an amount aggregating and not to exceed one-hundred-sixty-five-thousand-two-hundred-fifty ($165,250.00) dollars; and
IT IS HEREBY FURTHER ORDERED that within ten (10) business days of the Parent’s presentment of the ‘Enrollment Contract’, evidenced herein as Exhibit “J”, together with the “Tuition Affidavit”, evidenced herein as Exhibit “I”, the District shall remit directly to the Parent, an amount not to exceed one-hundred ($100.00) dollars, as full reimbursement for the down-payment made by the Parent to the Private School towards the Tuition; and
IT IS HEREBY FURTHER ORDERED that within ten (10) business days of the Parent’s presentment of the ‘Enrollment Contract’, evidenced herein as Exhibit “J”, together with the “Tuition Affidavit”, evidenced herein as Exhibit “I”, the District shall remit directly to the Private School an amount not to exceed one-hundred-sixty-five-thousand-one-hundred-fifty ($165,150.00) dollars, for the total balance of Tuition due and outstanding to the Private School for the Student’s attendance thereat, during the 2023/2024 school year; and
IT IS HEREBY FURTHER ORDERED that the Parent’s request for any additional claims asserted or relief sought in the Complaint, for which no supporting testimonial or documentary evidence was provided during the Hearing or otherwise supported by the Hearing Record, is hereby Denied; and
IT IS HEREBY FURTHER ORDERED that the Parent’s request for any claims asserted or relief sought, which were raised subsequent to filing the Complaint and/or raised for the first during the Hearing or in the Closing Brief, is hereby Denied; and
IT IS HEREBY FURTHER ORDERED that the Parent’s request for any relief sought or claims asserted, which were withdrawn prior, during or subsequent to the Hearing, is hereby Denied; and
IT IS HEREBY FURTHER ORDERED that the Parent’s request for any relief sought that is not within the jurisdictional ambit or authority of this Hearing Officer, is not properly seated before me, and is hereby Denied; and
IT IS HEREBY FURTHER ORDERED that any remaining issue, claim or contention not expressly addressed in this Decision, is hereby Denied.
IT IS SO ORDERED.
Dated: October 3, 2024
/s/ Patricia L. Murrell
Impartial Hearing Officer, Patricia L. Murrell
Copies to: All Parties
NOTICE OF RIGHT TO APPEAL
Within forty (40) days of the date of this Decision, the Parent and/or the 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 twenty-five (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 forty (40) days from the date of the decision sought to be reviewed. An appealing party shall file the (i) notice of intention to seek review, (ii) notice of request for review, (iii) request for review, and (iv) proof of service with the Office of State Review of the New York State Education Department within two (2) days after service of the request for review is complete. The Rules of Procedure for Proceedings 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.
PARENT EXHIBIT(S)
| Ex. | Description | Date(s) | No. Page(s) |
|---|---|---|---|
| A | Parent’s Impartial Hearing Request | July 5, 2023 | 7 |
| B | DOE’s Due Process Response | July 28, 2023 | 3 |
| C | Findings of Fact and Decision, Case # 243931 | June 2, 2023 | 15 |
| D | Pendency Agreement | September 12, 2023 | 1 |
| E | Individualized Education Program | March 27, 2023 | 30 |
| F | Neuropsychological Evaluation | April 13, 2023 | 19 |
| G | ABA Skills Assessment | May 3, 2023 | 18 |
| H | Ten Day Notice | June 20, 2023 | 3 |
| I | Payment Affidavit | August 9, 2023 | 1 |
| J | Tuition Agreement and Enrollment Contract | August 8-10, 2023 | 7 |
| K | Speech Language Evaluation | September 25, 2023 | 6 |
| L | Occupational Therapy Evaluation | September 2023 | 3 |
| M | ABA Mid-Year Progress Report | 2023/2024 | 7 |
| N | [Redacted] Program Description | Undated | 1 |
| O | Résumé of [Redacted] | Undated | 3 |
| Total Parent Exhibit(s) | 126 |
DISTRICT EXHIBIT(S)
| Ex. | Description | Date(s) | No. Page(s) |
|---|---|---|---|
| NONE |
HEARING OFFICER EXHIBIT(S)
| Ex. | Description | Date(s) | No. Page(s) |
|---|---|---|---|
| IHO-1 | Joint Statement of Facts | March 6, 2024 | 3 |
| IHO-2 | Statement of Issues to be Adjudicated | March 6, 2024 | 2 |
| IHO-3 | Parents’ Post-Hearing/Closing Brief | April 19, 2024 | 12 |
| Total IHO Exhibit(s) | 17 |
TRANSCRIPT(S)
| Description | Date(s) | No. Page(s) |
|---|---|---|
| Prehearing Conference | August 16, 2023 | 10 |
| Pendency Hearing | September 13, 2023 | 12 |
| Status Conference | October 10, 2023 | 8 |
| Second Status Conference | November 8, 2023 | 8 |
| Third Status Conference | November 29, 2023 | 7 |
| Fourth Status Conference | January 11, 2024 | 10 |
| Due Process Hearing – Day One | February 7, 2024 | 20 |
| Due Process Hearing – Day Two | February28, 2024 | 18 |
| Due Process Hearing – Day Three | February 7, 2024 | 104 |
| Total Transcript Page(s) | 197 | |
| Total Document Pages(s) | 340 |
Footnotes
1 The Hearing Record cited to in these Findings of Fact and Decision (hereinafter, the “Decision”) includes and references documents, which are designated as follows: to the Transcript, “Tr.” followed by the respective page/line number(s); to the Exhibits, as designated by the Parents’ Disclosure/Exhibit List, which are identified alphabetically: (A through O); “IHO” for the Impartial Hearing Officer Exhibits, (IHO-1 through IHO-3); and, as to any other document(s) included in the Hearing Record not specifically assigned an exhibit number, each of which will be identified by the respective document name and relevant page numbers, therein. The District did not proffer any exhibits.
2 See, IHO-1 – Joint Statement of Facts.
3 See, IHO-2 – Statement of Issues to be Adjudicated.
4 See, IHO-3 – Parent’s Post-Hearing/Closing Brief.
5 See, E-1; through, E-30.
6 See, F-1; through, F-19.
7 See, G-1; through, G-18.
8 See, J-1; through, J-7.
9 See, H-1; through, H-3.
10 See, I-1.
11 See, N-1.
12 See, D-1.
13 See, K-1; through, K-6.
14 See, L-1; through, L-3.
15 See, M-1; through, M-7.
16 See, Tr. 88:12-25; through and including, Tr. 113:1-15; see also, Tr. 123:2-25; Tr. 124:1-22.
17 See, Tr. 131:2-25; through and including, Tr. 157:1-9.
18 Available at http://www.p12.nysed.gov/specialed/publications/iepguidance/IEPguideDec2010.pdf.
19 Available at http://www.p12.nysed.gov/specialed/publications/1-1aide-jan2012.pdf