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NEW YORK STATE EDUCATION DEPARTMENT
IMPARTIAL DUE PROCESS HEARING
Case Cover Sheet
| IHRS or NYC Case No.: | 251413 |
| School District: | [Redacted] |
| Impartial Hearing Officer: | Patricia L. Murrell, Esq., IHO |
| Request/Complaint Date: | July 10, 2023 |
| Date of Appointment: | August 18, 2023 |
| Filed/Date of Decision: | October 19, 2024 |
NEW YORK STATE EDUCATION DEPARTMENT
IMPARTIAL DUE PROCESS HEARING
| STUDENT, a minor, by and through | Case No. 251413 |
| his/her Parent(s), | |
| [REDACTED] and [REDACTED] | |
| Petitioners, | |
| Patricia L. Murrell, Hearing Officer | |
| - against - | |
| New York City Department of Education | CORRECTED |
| School District # [Redacted] | FINDINGS OF FACT AND |
| 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 10, 2023, by the petitioners, [Redacted] and [Redacted], the parents (“Petitioners” or “Parents”) 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 Parents, the “Parties”).
On August 18, 2023, this Hearing Officer was appointed to preside over Case No. 251413. The Prehearing Conference (“PHC”) was held on August 24, 2023, during which the Parents 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 2022/2023 and 2023/2024 school years, 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”); and/or (iii) recommend a special education placement. The Parents sought District funding for the Student’s unilateral placement in a private school. A Status Conference was held on October 4, 2023, during which it was reported that the matter was under investigation to determine if the matter could be resolved; however, on November 29, 2923, the District reported that the case would not be recommended for settlement, and the Parties selected dates for 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 closed Hearing telephonically and via videoconference on January 4, 2024, during which oral opening statements were presented on the record (“Hearing Record”) by the Respondent who was represented by [Redacted], Esq., Attorney for the District; and the Petitioners who were represented by [Redacted], Esq., Attorney for the Parents. In addition, the District’s proposed exhibits (“1 through 16”) were proffered for submission into evidence, without objection; and Parents’ proposed exhibits (“A through W”) were proffered for submission into evidence, without objection. Pursuant to directive, the ‘Joint Statement of Facts’[2], and the ‘Statement of Issues to be Adjudicated’[3] were both submitted on December 29, 2023. Due to unavailability of the District’s witness(es), the January 22, 2024 Hearing was scheduled for continuation; and thereafter, the Respondent did not proffer any witnesses. On January 24, 2024, the Petitioners presented testimony by the Parent; and Executive Director of Education of the [Redacted] (“Private School”) [Redacted] (“Director”), who continued her testimony on February 8, 2024. On February 29, 2024, the Petitioners presented testimony by [Redacted] (“Neuropsychologist”). Each of the witnesses attested that the testimony provided during the Hearing was true and correct; and each were subjected to cross-examination. The Hearing was concluded on February 29, 2024; and the Hearing Transcripts were circulated on January 5, 2024, January 22, 2024, January 29, 2024, February 12, 2024 and March 4, 2024. The Parents submitted a Post-Hearing/Closing Brief on April 19, 2024;[4] and the District submitted a Post-Hearing/Closing Brief on April 20, 2024.[5] The Record was Closed on October 5, 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 2022/2023 and 2023/2024 school years.
B. Whether the Parents were entitled to receive District funding for the Student’s tuition, during the 2022/2023 and 2023/2024 school years.
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 October 18, 2022, the [Redacted] School (“Primary School”) issued progress reports for the 2022/2023 school year, which incorporated assessments and comments related to the Student’s adaptive physical education (“APE”), speech-language therapy (“SLT”), occupational therapy (“OT”), physical therapy (“PT”) and academic studies; and indicated that the Student’s ability to remain with the group and smoothly transition and participate during the school day was limited due to his expressive language, selfdirectedness and rigidity. More particularly, it was reported that his academic/social success was ‘always impacted’ by his language skills, transition skills, organizational skills, independence, sensory integration skills, self-regulation, frustration tolerance, attention and non-compliance; and was ‘often impacted’ by his generalization and selfcare skills (“2022 Progress Report”).[6]
3. On November 30, 2022, the Primary School conducted a “Functional Behavior Assessment (“FBA”) due to concerns relating to the Student’s unsafe and disruptive behaviors, which lead to disruption of his class, loss of academic instruction time for him and his peers, interfered with his ability to remain in the classroom, transition between school environments, and maintain a safe body, including, inter alia, dysregulation, hitting others and self, head banging, screaming, falling to the fall, biting self and staff, kicking and throwing objects. Recommendations included the development of an individualized Behavior Intervention Plan (“BIP”); providing the Student with significantly more 1:1 support than his current academic program; and alternative placement in a smaller class setting within a less stimulating environments.[7]
4. On December 29, 2022, Neuropsychologist [Redacted] issued a Neuropsychological Reevaluation Report, subsequent to conducting observations and updated assessments of the Student on November 15, 2022, November 17, 2022 and November 29, 2022; pursuant to the Parents’ request to comprehensively reassess the Student’s cognitive, academic, neuropsychological and social-emotional strengths and weaknesses; and to assist with appropriate educational and treatment planning (“2022 Neuropsychological Evaluation”). The Neuropsychologist noted that the Student has a history of significant speech delays, motor coordination difficulties and problems with adaptive skills; received Early Intervention Services (“EIS”) since two (2) years of age; reconfirmed his prior diagnosis of Autism Spectrum Disorder (“ASD”); and determined that he met the criteria for Attention Deficit Hyperactive Disorder (“ADHD”), combined presentation.
The Neuropsychologist opined that the Student’s language and sensory functioning difficulties interfered with his attention, concentration, and ability to self-regulate; and recommended that he required tailored and intensive interventions, with increased 1:1 support to bolster his language and social communication skills, reduce maladaptive attention and sensory oriented behaviors, and to maintain focus within the educational and home settings. More particularly, the Neuropsychologist determined that the Student presented with pervasive delays in sensory, social and language development, increased difficulties with self-regulation, impulsivity and distractibility, warranting the need for a transition to a flexible, data-driven and individually tailored approach; which included recommendations for an intensive full-time ABA school with 1:1 instruction delivered throughout the day; low student-to-teacher ratio; home-based ABA therapy, fifteen (15) hours per week, with three (3) hours per week of supervision by a BoardCertified Behavior Analyst (“BCBA”), including on weekends to ensure that his skills are being addressed consistently across settings and without any gaps during the week; together with a structured BIP; all to address his complex myriad of needs and to help him make appropriate developmental, adaptive, social, behavioral and academic gains.
The Neuropsychologist noted that the Student is at significant risk for further regression if he is not placed within this type of a structured and consistent learning environment with highly specialized and individualized instruction.[8]
5. On January 30, 2023, the Head of School [Redacted] at the Primary School issued a referral request, with the Parent’s consent, to the District for a reconvene of the CSE to determine a new, more individualized school placement for the Student, due to the Primary School’s very difficult process in attempting to provide support to the Student during the school year; and based on findings of the annexed 2022 FBA and 2022 Neuropsychological Evaluation, which recommended that the Student required an ABA approach to learning (“2023 Referral Request”).[9]
6. On February 14, 2023, the Parents issued a ten-day-notice (“TDN”) to the District advising that the 2023 Referral Request remained unanswered; a CSE meeting had not been reconvened to discuss the results of the new evaluations/assessments; that the Student required a more supportive setting on an expeditious basis; and that failing, the Student would be unilaterally placed at the Private School for the remainder of the 2022/2023 school year, and District funding would be sought for the Student’s tuition.[10]
7. On February 27, 2023, the District’s Social Worker [Redacted] conducted a Social History Update as part of a reevaluation process, in response to the 2023 Referral Request that was submitted to the CSE on behalf of the Parents, which indicated that the Student’s maladaptive behaviors were becoming more challenging at the Primary School and affecting both his and his classmates academic learning.[11]
8. On February 28, 2023, the Parents executed the Private School Tuition Addendum Agreement, which in relevant part indicated that the commencement date of the Student’s attendance for the 2022/2023 school year was March 15th not September 15th.[12]
9. The Program Description indicates that the Private School offers a transdisciplinary approach to teaching, based on a model whose philosophical underpinnings are rooted in ABA, individualized curriculum components that are aligned with the Common Core State Learning Standards, and all areas of a student’s deficits are addressed collaboratively between professionals and parents. Comprehensive assessments are conducted to obtain entry level repertoires in all educational and social domains, which form the basis of a continuous portfolio of the student’s responses to instruction, what has been learned, what has been taught, and what the school needs to teach. The student’s individualized instruction includes designated goals and measurable outcomes, which are carefully designed, tailored and created by detailed teacher operations; assigned and accountable based on the student’s educational needs, wishes of the parents, and needs of the community.[13]
10. On March 16, 2023, a Request for Medical Accommodations was executed by the Student’s Treating Physician, [Redacted], M.D., indicating that special transportation was required to address the Student’s Autism and ADHD (together, the “Diagnoses”), which affected his ability to attend, participate in class and take transportation.[14]
11. On March 17, 2023, the District issued a CSE Meeting Notice to the Parent, via email.[15]
12. On April 2023, the Private School conducted an FBA of the Student and developed a BIP, to address certain target behaviors that were disruptive to his learning and the learning of others, including, inter alia, his refusal to follow directions, aggression, biting, screaming, environmental destruction and self-injury.[16]
13. On May 5, 2023, the Parents and [Redacted] (“Head of Admissions”) at the Private School fully-executed the Tuition Agreement Summary Report, which set forth, inter alia, the terms and conditions relating to the Student’s attendance during the 2022/2023 school year (“2022 Enrollment Contract”), together with tuition at fiftynine-thousand-five-hundred-seventy-seven ($59,577.33) dollars-and-thirty-three cents (“2022 Tuition”); which also reflected payment of a ‘Registration Fee’ of five-thousand ($5,000.00) dollars, and a remaining balance of fifty-four-thousand-five-hundred-seventy-seven ($54,577.33) dollars-and-thirty-three cents.[17]
14. On May 2, 2023, the Parents and Head of Admissions fully-executed the Tuition Agreement Summary Report, which set forth, inter alia, the terms and conditions relating to the Student’s attendance during the 2023/2024 school year (“2023 Enrollment Contract”), together with Student’s tuition at one-hundred-eighty-one-thousand-two-hundred-eighty ($181,280.00) dollars (“2023 Tuition”).[18]
15. On May 2, 2023, the Parent issued a responsive email to the District in preparation for the forthcoming CSE meeting, which was scheduled for May 8, 2023, and submitted certain documents including, the 2022 Neuropsychological Report, Specialized Transportation form/HIPAA form, 2022 FBA, and the 2022 Progress Report.[19]
16. On May 8, 2023, the CSE convened a meeting (“2023 CSE Meeting”), which was attended telephonically by the Parent; Special Education Teacher [Redacted]; District Representative [Redacted]; Head of School [Redacted]; Primary School Classroom Teacher [Redacted]; Neuropsychologist [Redacted]; Director [Redacted]; Private School Classroom Teacher [Redacted]; Speech Therapist [Redacted]; and OT Provider [Redacted] (together, the “2023 CSE Team”). During the 2023 CSE Meeting, the Student was classified with Autism; and an IEP was developed with an implementation date of May 22, 2023, for the 2023/2024 school year (“2023 IEP”), which referenced evaluation results derived from various School Progress Reports and the 2022 Neuropsychological Evaluation. The 2023 IEP noted that the Student had significant needs with expressive language, receptive language, vocabulary and visual-spatial; struggled with selfmonitoring, and processing incoming information; and was prone to becoming dysregulated, easily distracted, and exhibited tantrum behavior, including, inter alia, throwing items, lunging at teachers, falling to the ground, and attempting to hit, bite or kick others, all of which necessitated the Student to be separated from the group, and did not allow him to participate in a majority of his academics. The 2023 IEP indicated that the Student needed a BIP, including positive behavioral interventions, supports and other strategies to address behaviors that impede his learning or that of others; however, the 2023 IEP neither recommended a BIP, nor indicates that any additional evaluations were conducted or considered by the District prior to or during the 2023 CSE Meeting, when participants from the Primary School noted the importance of 1:1 instruction, ABA Therapy and BCBA trained analysts; and the Parent expressed concern about the certification and training of a 1:1 Paraprofessional. Thereafter, the 2023 IEP recommended a twelve-month program in a Special Class 6:1+1 (35/wk.), consisting of APE (3/wk.); together with related services that included 1:1 OT (2x30), Group OT (1x30), 1:1 SLT (3x30), Group SLT (1x30), Group Counseling (1x30), Parent Counseling and Training (“PCAT”) (1x60/month), full-time Paraprofessional for behavior support, and a Speech Generating Device (“SGD”) for use in-school or at-home, as needed (collectively, the “2023 Recommended Program”); to be provided in a NYSED Approved NPS-Day.[20]
17. On May 23, 2023, [Redacted] issued an email to the Parent, which included a subjectline entitled School Location Letter (“SLL”) and referenced the attachment of a Prior Written Notice (“PWN”) Package for Placement for the 2022/2023 and 2023/2024 school year at [Redacted]: P.S. [Redacted]. Notably, the email did not include the annexation of either an SLL or PWN.[21]
18. On June 23, 2023, the CSE issued a PWN, which indicated that the Student’s recommended placement was a NYSED-Approved Non-Public School – Day; and noted that the CSE considered but rejected the Student’s placement in Special Class, specialized school 12:1+1, on the basis that it did not provide a sufficient challenge based on his presenting academic strengths; and considered but rejected his placement in a NYSED-Approved Non-Public School – Residential, on the basis that it was too restrictive at that time. Notably, the PWN neither identified the name of the Student’s NYSED-Approved NPS-Day; specified a recommended placement for the Student’s 2023/2024 school year; nor included an SLL for the 2023/2024 school year.[22]
19. On June 23, 2023, the Parent issued a second TDN to the CSE Chairperson (“TDN-2”) advising that she disagreed with the 2023 Recommended Program; and that neither the Central Based Support Team (“CBST”) nor the District had provided a NYS-Approved NPS placement recommendation for the Student’s 2023/2024 school year; subsequent to which, the Student would be [re]enrolled at the Private School for the 2023/2024 school year, and District funding would be sought for the Student’s tuition.[23] The District acknowledged receipt of the TDN-2, on June 23, 2023.[24]
20. The Petitioners proffered the Parent as a witness, who testified regarding the Student’s Diagnoses, challenges, delays, educational background and maladaptive behaviors; which prompted the need for the Student’s daily separation from his peers in the Primary School, together with the subsequent 2022 FBA, 2022 Neuropsychological Evaluation and the Referral Request made to the CSE in January 2023, to reconvene for a new educational placement, due to the Primary School’s admitted inability to continue providing individualized educational services and support to the Student. The Parent authenticated the TDN issued in February 2023, and further testified that while awaiting a response from the CSE, and prior to enrolling the Student into the Private School for commencement of his attendance on March 1, 2023, she contacted several schools in an attempt to locate an alternate NYS-Approved NPS, which offered a 1:1 ABA program.
The Parent confirmed her attendance and the attendees at the 2023 CSE Meeting, which was held in May 2023; and testified that she and attending members from the Primary School and Private School disagreed with 2023 Recommended Program of 6:1+1, as it was not an individualized ABA program. The Parent testified that although the 2023 IEP recommended an unidentified placement for the Student in an NYS Approved-NPS, and the CBST provided a list of proposed schools in June 2023, who ‘would contact her’, the Parent never received a notification from any of the proposed schools for the Student’s 2023/2024 placement. The Parent authenticated the 2022 Enrollment Contract and 2023 Enrollment Contract, and further testified that the Student made some progress during his attendance thereat; specifically, his maladaptive and self-injurious behaviors had reduced; his transitions, motivation levels, periods of dysregulation and attention span were improved; and academically, the Student made progress in his reading, math and communication. However, the Parent opined that the Student also needed 1:1 ABA at-home to minimize his weekend regression and help with school.[25]
21. The Petitioner proffered the Director [Redacted] as a witness, who is a New York State (“NYS”) Licensed Behavior Analyst (“LBA”); BCBA; holds a Doctorate in Special Education; Master’s in Special Education; Bachelor’s in English and Secondary Education; and NYS Permanent Certification(s) as Special Education Teacher, School Administrator (“SAS”) and School District Administrator (“SDA”).
22. The Director testified that there were approximately one-hundred-four (104) students with Autism and other learning disabilities enrolled in the Private School during the 2022/2023 school year, and approximately one-hundred-twenty-two (122) during the 2023/2024 school year; each of whom participated in either a 6:1+6 or 8:1+3 classroom, based on their specific needs, level of progress and self-management skills. The Director described the basis and integration of the verbal behavior, social skills and selfmanagement instruction components of the Private School’s transdisciplinary instruction programs; and testified regarding the criterion-based assessments that were developed for the Student, including, inter alia, ABLLS, CORE Phonics Survey, Informal Reading Inventory and the Dolch Word List; all of which translated to various goals, and thereafter were used to create individually-tailored instruction and ABA programming for the Student. The Director further testified as to her observations and familiarity with the Student’s evaluative data, Diagnoses, maladaptive and self-injurious behavioral challenges, which interfered with his ability to learn and participate in any class activities. The Director described the Student’s strengths, which included double-digit math, and decoding at a fourth (4th) grade-level; however, his attending, communication skills, spelling and social skills were challenging, and his reading comprehension was at a Pre-K level. The Director confirmed her attendance at the 2023 CSE Meeting, and the concerns that were raised thereat regarding a perceived inadequacy of the proposed 6:1+1 program to sufficiently address the Student’s behavioral challenges, and/or permit him to make meaningful progress without 1:1 ABA instruction and BCBA supervision.
The Director testified that the Student made ‘nice progress’ during the 2023/2024 school year; specifically, he exhibited progress in his academic learning and reading; improved his social skills and functional communication responses; reduced his maladaptive behaviors; and increased his tolerance for delayed access to reinforcers.[26]
23. The Petitioner proffered the Pediatric Neuropsychologist [Redacted] as a witness, who is a NYS Licensed Psychologist; holds a Doctorate in Clinical Psychology; Master’s in Clinical Psychology; and Bachelor’s in Psychology.
24. The Neuropsychologist described the assessments conducted of the Student and the basis for her recommendations set forth in the 2022 Neuropsychological Evaluation, which included, inter alia, 12-month placement in a full-time intensive 1:1 ABA program; low student-to-teacher ratio; together with an SGD, OT, SLT and counseling, all to collectively address the Student’s academic, behavioral, attentional and languagebased concerns. The Neuropsychologist testified that she recommended home-based ABA (15/wk.), with BCBA supervision, to address the severity of his behavior dysregulations that were extending into the home environment; as well as to help improve his communication and availability for learning; afford appropriate access to the curriculum; allow him to make meaningful progress needed within the school environment; and prevent the occurrence of any further regression by the Student. The Neuropsychologist confirmed her attendance at the 2023 CSE Meeting, and testified as to concerns she raised thereat regarding the 2023 Recommended Program; specifically, the proposed class size was too large, not-supportive and would be overwhelming. The Neuropsychologist opined that fifteen (15) hours of home-based ABA would not be burdensome, as the hours could be used after-school and during the weekend.[27]
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 2022/2023 and 2023/2024 school years, whether: (1) the District failed to conduct or 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 2022/2023 and/or 2023/2024 school years.
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
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).
1. REFERRAL REQUEST to RECONVENE for 2022 IEP
The Parents assert that the Student was denied a FAPE due to the District’s failure to reconvene and develop an amended IEP for the Student’s 2022/2023 school year.
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). Further, the District is also required to revise a student’s IEP as necessary to address “[t]he results of any reevaluation”; “[i]nformation about the child provided to, or by, the parents” during the course of a review of existing evaluation data; the student’s anticipated needs; or other matters. 20 U.S.C. 1414(d)(4)(A); 34 CFR 300.324(b)(1)(ii)(C); 8 NYCRR 200.4(f)(2)(ii). In addition, State regulations also 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). In a guidance letter issued by the United States Department of Special Education Programs (“OSEP”), it is well regarded that it is the District’s responsibility to determine when it is necessary to conduct a CSE meeting; however, the Parents may request a CSE meeting at any time; and if the District determines not to grant the request, it must provide the parents with written notice of its refusal, “including an explanation of why the [District] has determined that conducting the meeting is not necessary to ensure the provision of FAPE to the student.” Letter to Anonymous, 112 LRP 52263 (OSEP Mar. 7, 2012); 34 CFR 300.503; 8 NYCRR 200.5(a). Therefore, a District’s failure to comply with the procedural requirements related to a Parent’s request to reconvene may be regarded as a violation of the IDEA and constitute a denial of FAPE, under the circumstances where the Student is deprived of educational benefits or the Parents are significantly impeded from their opportunity to participate in the decision-making process regarding the provision of a FAPE to the Student. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii).
OSEP has also indicated that “[g]enerally, an IEP meeting must take place before a proposal to change the students placement can be implemented.” Letter to Green, 22 IDELR 639 (OSEP 1995). Here, the Hearing Record evinces that the District received copies of the 2022 FBA and 2022 Neuropsychological Evaluation, together with the Referral Request from the Primary School on January 30, 2023, and the TDN from the Parents on February 14, 2023; each of which sought a reconvened CSE Meeting and an amended IEP to provide the Student with a new educational placement in a NYS-Approved NPS, on the basis that the Primary School admitted that it could no longer provide the Student with educational support thereat. This urgency notwithstanding, although the District conducted a Social History Update of the Student on February 27, 2023; however, the CSE failed to inform the Parents of its reason not to schedule a CSE meeting on a more expeditious basis to review the new evaluations, detailed recommendations relating to additional services and supports, and to address the Student’s immediate need for an appropriate educational program and new placement. Unreasonably, the District waited until May 8, 2023 to conduct the CSE Meeting, which was ninety-seven (97) days after the initial Referral Request.
There is no documentary or testimonial evidence that the District comprehensively reviewed the findings, opinions and/or results of either the 2022 FBA and/or 2022 Neuropsychological Evaluation, which could have been considered, referenced and/or employed to provide adept guidance to the CSE in developing recommendations for an updated or amended IEP and a new placement suitable for handling the Student’s unique needs for the remainder of the 2022/2023 school year. Accordingly, “[w]hen a child requires specialeducation 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 develop an amended IEP for the Student’s 2022/2023 school year. 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, it is this Hearing Officer’s determination that the District’s failure to timely reconvene the CSE to develop/provide an appropriate IEP and placement, constituted a procedural violation of the IDEA, that rises to the level of a denial of FAPE for the Student’s 2022/2023 school year.
2. SUFFICIENCY of EVALUATIONS and ASSESSMENTS
The Parents 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 EVALUATIVE DATA
The Parents assert that the District’s failure to fully consider the independent 2022 Neuropsychological Evaluation contributed to a denial of FAPE for the 2023/2024 school year.
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.
The Hearing Record evinces the CSE’s awareness that the Student presented with certain academic, behavioral, language-based, regulatory, attention and transition challenges, which negatively impacted his access to the educational curriculum. Nevertheless, the Hearing Record does not reflect that the independent evaluative findings, recommendations and/or opinions of the 2022 FBA and/or 2022 Neuropsychological Evaluation were fully adopted into the 2023 IEP. More particularly, the Neuropsychologist recommended, inter alia, a 12-month placement in a full-time intensive 1:1 ABA program, home-based 1:1 ABA, and low student-to-teacher ratio. Therefore, it was incumbent upon the District to offer evidence during the Hearing that the Student could receive an educational benefit under the 2023 Recommended Program, despite its failure to reasonably consider and/or integrate the Neuropsychologist’s recommendations into the 2023 IEP, which included a mandate for the Student’s educational and supportive services to be provided in a small ABA classroom setting.
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. However, the District neither presented any testimonial evidence nor additional 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 consider the evaluative data provided by the independent 2022 Neuropsychological Evaluation, and/or to obtain alternate evaluative data thwarted the CSE’s ability to ensure that the Student was fully and appropriately evaluated and assessed in all areas related to his suspected disabilities; and thereafter to recommend an appropriate educational placement with sufficient specialized instruction and/or teaching methodologies for the Student, in relation to his unique needs and challenges. Fundamentally, the absence of sufficient evaluative data and information used and/or considered by the District during the 2023 CSE Meeting, which could have addressed the individualized techniques required to educate the Student; prevented the 2023 CSE Team from obtaining information necessary to properly assess the Student; and thereby 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 unique needs and challenges. “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 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 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 independent Neuropsychologist. 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.
b. FBA/BIP
The Parents assert 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”).[28]
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 struggled with self-monitoring and was prone to becoming dysregulated, easily distracted, and exhibited maladaptive and self-injurious behavior, including, inter alia, throwing items, lunging at teachers, falling to the ground, hitting, biting and kicking others, all of which resulted in the Student being separated from the group, thereby limiting his participation in a majority of his academics. The 2023 IEP further indicated that the Student needed a BIP, including positive behavioral supports and other strategies to address behaviors that impede his learning or that of others; however, the Hearing Record reflects that the 2023 IEP neither recommended that an FBA be conducted nor the BIP be amended or developed anew to identify, address or otherwise prescribe a means to manage his maladaptive and 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. “ Consequently, it is the determination of this Hearing Officer that the District acted in opposition 20 U.S.C. §1414(b)(3)(B); 34 CFR 300.304(c)(4); 8 NYCRR 200.4(b)(6)(vii), which 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.
3. APPROPRIATENESS OF PROGRAM
The Parents assert 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 Parents assert 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 Neuropsychologist’s recommendations elucidated in the 2022 Neuropsychological Evaluation, which indicated in relevant part that due to his pervasive delays in sensory, social and language development, increased difficulties with self-regulation, impulsivity and distractibility, the Student required a transition to a flexible, data-driven and individually tailored approach; including, inter alia, placement in an intensive full-time ABA school, in a small classroom with 1:1 ABA instruction delivered throughout the day; together with a structured BIP to address his complex myriad of needs, manage his Diagnoses, and help him make appropriate academic gains. All of which was advocated for by the Parent, Neuropsychologist, Primary School and Private School participants during the 2023 CSE Meeting; each of whom expressed concerns that given his maladaptive behaviors, which impeded his academia, the Student needed 1:1 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. EXTENDED SCHOOL DAY –
HOME-BASED ABA SERVICES
The Parents contend that an appropriate educational program for the Student should include home-based 1:1 ABA (“Home-Based ABA services”).
Some students with disabilities have certain needs that require educational and related services, which exceed beyond the regular school day and/or school year. However, the Court has held that even though a student may have benefited from home-based services it does not mean that such services are necessary to receive a FAPE. R.B., 589 Fed. App’x 572. Accordingly, an IEP does not need to include extended school day services or home-based services after school if such services would only address the student’s behaviors at home or assist the student in generalizing skills or knowledge. L.K. v. New York City Dep’t of Educ., 2016 WL 899321, at *8-*10 (S.D.N.Y. Mar. 1, 2016), aff’d in part, 674 Fed. App’x 100 (2d Cir. Jan. 19, 2017); Student X v. New York City Dep’t of Educ., 2008 WL 4890440 at *17-*18; (E.D.N.Y. Oct. 30, 2008) K.L., 2012 WL 4017822, at *7, *14; C.G. v. New York City Dep’t of Educ., 752 F. Supp. 2d 355, 360 (S.D.N.Y. 2010). In fact, several Courts have held that the IDEA does not require a District, as a matter of course, to design educational programs to address a Student’s difficulties in generalizing skills to other environments outside of the school environment, particularly in cases in which it is determined that the Student is otherwise likely to make progress in the classroom. L.K., 2016 WL 899321, at *8-*10; Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 (10th Cir. 2008); Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 (1st Cir. 2001); Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 (11th Cir. 2001); JSK v. Hendry County Sch. Bd., 941 F.2d 1563, 1573 (11th Cir 1991). In the aforementioned cases, the Courts denied the parent’s request for home-based services, residential placement and/or reimbursement of services, on the basis that the child was making progress in the classroom but not generalizing the progress outside of school; however, the facts set forth in the instant case are inapposite. The Hearing Record evinces that the Home-Based 1:1 ABA services (15/wk.), with BCBA Supervision, were recommended by the Neuropsychologist to address the severity of the Student’s behavior dysregulations that were extending into the home environment; as well as to help improve his communication and availability for learning; afford appropriate access to the curriculum; allow him to make meaningful progress needed within the school environment; and to prevent the occurrence of any further regression, by providing 1:1 ABA also on weekends to ensure that the Student’s skills are being addressed consistently across settings and without any gaps during the week.
In response to which, the District failed to meet its burden in adequately challenging the benefits acquired from the Home-Based ABA services, which the Hearing Record does not reflect exceeded the requirements of the IDEA, and/or was sought for the sole purpose of generalizing the Student’s skills outside of the school environment. Hence, absent such a showing, the District should not be permitted to deny the Student access to a Home-Based ABA program where the Student’s continuity of progress in-school was dependent on a seamless continuum of the after-school program’s ability to address his unique needs, which supplemented and was an extension of the school environment. Accordingly, it is this Hearing Officer’s finding that the Home-Based ABA program was appropriate for the 2023/2024 school year. Consequently, upon full review and due consideration, it is this Hearing Officer’s determination that the CSE shall reconvene, as discussed more fully, infra, to fully consider all evaluative data, findings, opinions and recommendations set forth in the 2022 Neuropsychological Evaluation, 2022 FBA, together with any other evaluations, assessments or reports that were conducted subsequent thereto or that the Parent or District may deem pertinent; and thereafter, develop an amended IEP, which incorporates a recommendation for the Student’s, inter alia, full-time 1:1 School-Based ABA program, 1:1 Home-Based ABA services (15 hrs./wk.), together with BCBA Supervision, and related services for the Student, and PCAT.
4. RECOMMENDATION OF PLACEMENT
The Parents assert 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 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).
The Hearing Record evinces that although the CBST provided the Parents with a list of potential schools for the Student; however, none of the proposed schools contacted the Parents. In addition to which, the CSE also failed to provide the Parent with an SLL, PWN or any other notification advising of a NYS-Approved NPS 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) District failed to timely reconvene a CSE Meeting for the 2022/2023 school year; (ii) 2023 CSE Meeting was held without fully considering evaluative data relating to the Student’s needs; (iii) District failed to develop an IEP that recommended an appropriate special education program; (iv) District failed to recommend an educational placement; or (v) 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 2022/2023 and 2023/2024 school years.
E. RECONVENE CSE MEETING
When a student in New York is eligible for special education services, the IDEA calls for the creation of an IEP, which is delegated to a local CSE that includes, but is not limited to, Parent, Teachers, a School Psychologist, and a District Representative. Educ. Law § 4402; 20 U.S.C. §1414(d)(1)(A)-(B); 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4(d)(2). In addition to the CSE’s general obligation to review the IEP of the Student with a disability at least annually, Federal and State Regulations require the CSE to revise the Student’s IEP as necessary to address “[i]nformation about the child provided to, or by, the parents” during the course of a reevaluation of the Student. 34 CFR 300.324(b)(1)(ii)(C); 8 NYCRR 200.4(f)(2)(ii). Further, either an IEE 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). State Regulations also provide that, if the Parent believes that the Student’s placement is no longer appropriate, they “may refer the student to the [CSE] for review.” 8 NYCRR 200.4(e)(4).
Accordingly, unless the Parties mutually agree otherwise, the CSE shall reconvene within fifteen (15) days from the date of this Decision, at a time and location convenient to the Parent, District and Private School, to discuss development of an amended IEP for the Student, which, inter alia, (i) continues the Student’s placement in the Private School or a substantially similar full-time NYS-Approved NPS with a 1:1 ABA program; (ii) fully considers all evaluative data, opinions and recommendations obtained from the 2022 Neuropsychological Evaluation; (iii) considers any additional evaluations/assessments conducted or deemed necessary by the District, Parent and/or Private School; (iv) incorporates meaningful and measurable goals, including benchmarks and short-term objectives, to address the Student’s unique needs, deficits and challenges; (v) meaningfully considers incorporation of Home-Based 1:1 ABA services (15/wk.), in accordance with recommendations of the Neuropsychologist; (vi) incorporates the appropriate level and frequency of related services, inclusive of PCAT; and (vii) provides the Student with special transportation from home to school.
F. UNILATERAL PLACEMENT
The Parents contend that subsequent to the CSE’s failure to timely reconvene a CSE meeting and develop an amended IEP for the 2022/2023 school year; and/or recommend an appropriate educational program and placement for the 2023/2024 school year, 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 cost of the 2022 Tuition for four (4) months of the Student’s attendance thereat, during the 2022/2023 school year, in an amount totaling fifty-nine-thousand-five-hundred-seventy-seven ($59,577.33) dollars-and-thirty-three cents; in addition to the full cost of the 2023 Tuition for 2023/2024 school year, in an amount totaling one-hundred-eighty-one-thousand-two-hundred-eighty ($181,280.00) dollars. More particularly, the Parents seek District funding of the 2022 Tuition and 2023 Tuition, which together aggregates to two-hundred-forty-thousand-eight-hundred-fifty-seven ($240,857.33) dollars-and-thirty-three cents.
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 Program Description indicates that the Private School offers a transdisciplinary approach to teaching, based on a model whose philosophical underpinnings are rooted in ABA, individualized curriculum components that are aligned with the Common Core State Learning Standards, and all areas of a student’s deficits are addressed collaboratively between professionals and parents. 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 placed the Student in a 6:1+6 classroom and conducted comprehensive assessments to develop a continuous portfolio based on his educational needs; and his individualized instruction, which included designated goals and measurable outcomes, was designed, tailored and created by detailed teacher operations. 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, although the Hearing Record does not include documentary evidence in the form of report cards or progress reports developed by the Private School for the 2023/2024 school year; however, both the Parent and the Director provided adequate testimony, which satisfactorily evinces that the Student achieved some progress during his attendance thereat. More particularly, the Parent testified that during the 2023/2024 school year the Student’s maladaptive and self-injurious behaviors had reduced; his transitions, motivation levels, periods of dysregulation and attention span were improved; and academically, the Student made progress in his reading, math and communication. In addition, the Director testified that the Student made ‘nice progress’ during the 2023/2024 school year with his academic learning and reading; his improved social skills and functional communication responses; reduced maladaptive behaviors; and increased tolerance levels. 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 February 14, 2023, which informed the District that the CSE had failed to reconvene during the 2022/2023 school year to consider new independent evaluative data; and the Parents provided TDN-2 on June 23, 2023, which advised that the CSE failed to develop an appropriate IEP or timely recommend an educational placement for the 2023/2024 school year. The TDNs further advised that in the absence thereof, the Student would be enrolled in the Private School, for which the Parents would seek Tuition funding for the Student’s placement in the Private School, during the 2022/2023 and 2023/2024 school years. The District did not assert that any prejudice was suffered by either of the TDNs; 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 Parents 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 TDNs 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 2022/2023 and 2023/2024 school years; the unilateral placement for both school years was appropriate; and equitable considerations favor the Parents.
G. RELIEF – FUNDING for PRIVATE SCHOOL TUITION
The Parents contend 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 2022/2023 and 2023/2024 school years. 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 2022/2023 and 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 reconvene a CSE meeting or develop an amended IEP for the 2022/2023 subsequent to receipt of two (2) referral requests; 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 2022/2023 and 2023/2024 school years 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 2022 Tuition and 2023 Tuition in the Private School during the 2022/2023 and 2023/2024 school years. Accordingly, this Hearing Officer finds that the Parents’ 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 both the 2022/2023 and 2023/2024 school years.
More particularly, within ten (10) business days of the Parents’ presentment of the ‘2022 Enrollment Contract’, evidenced herein as Exhibit “N”, the District shall remit five-thousand ($5,000.00) dollars directly to the Parent, as a reimbursement for the ‘Registration Fee’ paid towards the 2022 Tuition; and the District shall remit full payment directly to the Private School in an amount not to exceed fifty-four-thousand-five-hundred-seventy-seven ($54,577.33) dollars-and-thirty-three cents, for the total cost and balance of the 2022 Tuition due and outstanding to the Private School for the Student’s attendance thereat, during the 2022/2023 school year. In addition, within ten (10) business days of the Parents’ presentment of the ‘2023 Enrollment Contract’, evidenced herein as Exhibit “M”, the District shall remit full payment directly to the Private School in an amount not to exceed one-hundred-eighty-one-thousand-two-hundred-eighty ($181,280.00) dollars, for the total balance of the 2023 Tuition due and outstanding, by the Parents, to the Private School for the Student’s attendance thereat, during the 2023/2024 school year.
H. 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 2022/2023 and 2023/2024 school years. 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 and/or raised for the first time in the Closing Brief, 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 2022/2023 and/or 2023/2024 school years. 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.
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 (i) during the 2022/2023 school year the CSE failed to timely reconvene to consider the new evaluative data; and during the 2023/2024 school year, the (ii) District failed to conduct or consider sufficient evaluative data in advance of developing the 2023 IEP; (iii) District failed to recommend an appropriate program; (iv) District failed to recommend an educational placement; and (v) District failed to meet its statutory burden of proof, production and persuasion relating to the alleged denial(s) of FAPE.
IT IS HEREBY ORDERED that the District’s substantive violation under the IDEA, denied the Student a FAPE during the 2022/2023 school year; and
IT IS HEREBY ORDERED that the District’s cumulative procedural and substantive violations under the IDEA, denied the Student a FAPE during the 2023/2024 school year; and
IT IS HEREBY FURTHER ORDERED that the Parents’ unilateral placement of the Student in the Private School during the 2022/2023 school year was appropriate under the IDEA, and equitable considerations favor the District’s funding of the full cost of the 2022 Tuition for the Student’s attendance thereat during the 2022/2023 school year, in an amount aggregating and not to exceed fifty-nine-thousand-five-hundred-seventy-seven ($59,577.33) dollars-and-thirty-three cents; and
IT IS HEREBY FURTHER ORDERED that within ten (10) business days of the Parents’ presentment of the ‘2022 Enrollment Contract’, evidenced herein as Exhibit “N”, the District shall remit directly to the Parents, an amount not to exceed five-thousand ($5,000.00) dollars, as full reimbursement for the ‘Registration Fee’ paid by the Parents to the Private School towards the 2022 Tuition; and
IT IS HEREBY FURTHER ORDERED that within ten (10) business days of the Parents’ presentment of the ‘2022 Enrollment Contract’, evidenced herein as Exhibit “N”, the District shall remit directly to the Private School an amount not to exceed fifty-four-thousand-five-hundred-seventy-seven ($54,577.33) dollars-and-thirty-three cents, for the total balance of the 2022 Tuition due and outstanding, by the Parents, to the Private School for the Student’s attendance thereat, during the 2022/2023 school year; and
IT IS HEREBY FURTHER ORDERED that the Parents’ 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 the 2023 Tuition for the Student’s attendance thereat during the 2023/2024 school year, in an amount aggregating and not to exceed one-hundred-eighty-one-thousand-two-hundred-eighty ($181,280.00) dollars; and
IT IS HEREBY FURTHER ORDERED that within ten (10) business days of the Parents’ presentment of the ‘2023 Enrollment Contract’, evidenced herein as Exhibit “M”, the District shall remit full payment directly to the Private School in an amount not to exceed onehundred-eighty-one-thousand-two-hundred-eighty ($181,280.00) dollars, for the total balance of the 2023 Tuition due and outstanding, by the Parents, to the Private School for the Student’s attendance thereat, during the 2023/2024 school year; and
IT IS HEREBY FURTHER ORDERED that unless the Parties mutually agree otherwise, the CSE shall reconvene within fifteen (15) days from the date of this Decision, at a time and location convenient to the Parent, District and Private School, to discuss development of an amended IEP for the Student, which, inter alia, (i) continues the Student’s placement in the Private School or a substantially similar full-time NYS-Approved NPS with a 1:1 ABA program; (ii) fully considers all evaluative data, opinions and recommendations obtained from the 2022 Neuropsychological Evaluation; (iii) considers any additional evaluations/assessments conducted or deemed necessary by the District, Parent and/or Private School; (iv) incorporates meaningful and measurable goals, including benchmarks and shortterm objectives, to address the Student’s unique needs, deficits and challenges; (v) meaningfully considers incorporation of Home-Based 1:1 ABA services (15/wk.), in accordance with recommendations of the Neuropsychologist; (vi) incorporates the appropriate level and frequency of related services, inclusive of PCAT; and (vii) provides the Student with special transportation from home to school; and
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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 Attorney Fees and Costs, is Denied; as this Hearing Officer is not authorized to award attorneys’ fees or other costs to a prevailing party; entitlement, if any, must be determined by a Court of competent jurisdiction;[29] 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 19, 2024
_/s/ Patricia L. Murrell______________,
Impartial Hearing Officer, Patricia L. Murrell
IHO.PatriciaMurrell@gmail.com
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 | Hearing Request | July 10, 2023 | 12 |
| B | [Redacted]: 1040 | 2021 | 2 |
| C | [Redacted] 1040 | 2021 | 2 |
| D | Primary School Progress Report | November 18, 2022 | 16 |
| E | Primary School FBA | November 30, 2022 | 20 |
| F | Neuropsychological Re-Evaluation | December 29, 2022 | 20 |
| G | Email to CSE: Referral for Placement and Reconvene | January 30, 2023 | 2 |
| H | Ten Day Notice | February 14, 2023 | 4 |
| I | Tuition Agreement Addendum | February 28, 2023 | 1 |
| J | Request for Medical Accommodations | March 16, 2023 | 2 |
| K | FBA and BIP | April 2023 | 17 |
| L | Corr. with CSE: CSE Meeting and Documents | Various Dates | 4 |
| M | Tuition Agreement Summary Report | May 2, 2023 | 5 |
| N | Tuition Agreement Summary Report | May 5, 2023 | 5 |
| O | Classroom Goals | 2022/2023 | 4 |
| P | Occupational Therapy | 2022/2023 | 2 |
| Q | Speech and Language Goals | 2022/2023 | 2 |
| R | Private School Program Offerings and Features | 2022/2023 | 9 |
| S | Ten Day Notice | June 23, 2023 | 4 |
| T | Ten Day Notice Confirmation | June 23, 2023 | 1 |
| U | Private School Class Schedule | 2023/2024 | 1 |
| V | Curriculum Vitae: Dr. [Redacted] | Undated | 9 |
| W | Curriculum Vitae: Dr. [Redacted] | Undated | 9 |
| Total Pages w/Cover: | 155 | ||
DISTRICT EXHIBIT(S)
| Ex. | Description | Date(s) | No. Page(s) |
| 1 | Social History Update | April 6, 2021 | 4 |
| 2 | Primary School Progress Report | November 19, 2021 | 15 |
| 3 | IEP – 2022/2023 | March 16, 2022 | 34 |
| 4 | Prior Written Notice Package – 2022-2023 | March 25, 2022 | 4 |
| 5 | Neuropsychological Evaluation | Various | 20 |
| 6 | Primary School FBA | November 30, 2022 | 20 |
| 7 | Social History Update | February 27, 2023 | 3 |
| 8 | SESIS Log - Notice of 2023-2024 IEP Meeting | March 17, 2023 | 2 |
| 9 | Assistive Technology Evaluation | March 23, 2023 | 17 |
| 10 | Private School Classroom Goals | 2023 | 4 |
| 11 | Private School OT Goals | 2023 | 2 |
| 12 | Private School SLT Goals | 2023 | 2 |
| 13 | Private School – FBA & BIP | April 2023 | 17 |
| 14 | IEP – 2023-2024 | May 8, 2023 | 30 |
| 15 | SESIS Log - School Location Letter | May 23, 2023 | 1 |
| 16 | Prior Written Notice Package – 2023-2024 | June 23, 2023 | 4 |
| Total Pages w/Cover: | 181 | ||
HEARING OFFICER EXHIBIT(S)
| Ex. | Description | Date(s) | No. Page(s) |
| IHO-1 | Joint Statement of Facts | December 29, 2023 | 2 |
| IHO-2 | Statement of Issues to be Adjudicated | December 29, 2023 | 2 |
| IHO-3 | Parent’s Post-Hearing/Closing Brief | April 19, 2024 | 19 |
| IHO-4 | District’s Post-Hearing/Closing Brief | April 19, 2024 | 7 |
| Total IHO Exhibit(s): | 30 | ||
TRANSCRIPT(S)
| Description | Date(s) | No. Page(s) | |
| Prehearing Conference | August 24, 2023 | 11 | |
| Status Conference | October 4, 2023 | 9 | |
| Pendency Hearing | October 31, 2023 | 10 | |
| Second Status Conference | November 29, 2023 | 21 | |
| Due Process Hearing – Day One | January 4, 2024 | 42 | |
| Due Process Hearing – Day Two | January 22, 2024 | 14 | |
| Due Process Hearing – Day Three | January 24, 2024 | 140 | |
| Due Process Hearing – Day Four | February 12, 2024 | 37 | |
| Due Process Hearing – Day Five | February 29, 2024 | 65 | |
| Total Transcript Page(s): | 349 | ||
Total Document Pages(s) 715
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 W); the District’s Disclosure/Exhibit List, which are identified alphabetically: (1 through 16); “IHO” for the Impartial Hearing Officer Exhibits, (IHO-1 through IHO-4); 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.
[2] See, IHO-1 – Joint Statement of Facts.
[3] See, IHO-2 – Statement of Issues to be Adjudicated.
[4] See, IHO-3 – Parents’ Post-Hearing/Closing Brief.
[5] See, IHO-4 – District’s Post-Hearing/Closing Brief.
[6] See, D-1; through, D-16.
[7] See, E-1; through, E-20; see also, 6-1; through, 6-20.
[8] See, F-1; through, F-20; see also, 5-1; through, 5-20
[9] See, G-1; G-2.
[10] See, H-1; through, H-4.
[11] See, 7-1; through, 7-3.
[12] See, I-1.
[13] See, R-1; through, R-9.
[14] See, J-1; J-2.
[15] See, 8-1; 8-2.
[16] See, K-1; through, K-17; see also, 13-1; through, 13-17.
[17] See, N-1; through, N-5.
[18] See, M-1; through, M-5.
[19] See, L-1; through, L-4.
[20] See, 3-1; through, 3-34.
[21] See, 15-1.
[22] See, 16-1; through, 16-4.
[23] See, S-1; through, S-4.
[24] See, T-1.
[25] See, Tr. 94:20-25; through and including, Tr. 134:1-5; Tr. 143:1-25; through and including, Tr. 145:1-15.
[26] See, Tr. 156:13-25; through and including, Tr. 200:1-11; see also, Tr. 217:2-25; through and including, Tr. 230:1-19; see also, Tr. 234:5-25; through and including, Tr. 236:1-19.
[27] See, Tr. 255:16-25; through and including, Tr. 279:1-22; Tr. 283:17-25; through and including, Tr. 285:1-13.
[28] Available at http://www.p12.nysed.gov/specialed/publications/iepguidance/IEPguideDec2010.pdf.
[29] See, 20 U.S.C. § 1415(i)(3)(B); 34 CFR 300.517; Mr. B. v. E. Granby Bd. of Educ., 201 Fed. App’x 834, 837 (2d Cir. Oct. 27, 2006)