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FINDINGS OF FACT AND DECISION
Case Number: 251546
Student’s Name: STUDENT
School District: SCHOOL DISTRICT
Impartial Hearing Officer: Michele Host
Date of Filing: July 7, 2023
Hearing Requested by: PARENTS
Dates of Hearing: October 17, 2023
Time Sensitive: No
Record Close Date: October 30, 2023
Date of Decision: October 31, 2023
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 17, 2023:
For the Student:
[REDACTED] (“Parents’ Counsel”)
[REDACTED] (“Mother”)
For the District:
[REDACTED] (“DOE Counsel”)
INTRODUCTION AND PROCEDURAL HISTORY
This matter concerns the Student, a student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). The Student’s eligibility for special education supports and services is not in dispute.
This matter comes before me on the Parents’ due process complaint, filed on or about July 7, 2023, concerning the 2023-2024 school year. In the Parents’ due process complaint, the Parents allege that the DOE failed to provide the Student with a free and appropriate public education (“FAPE”) for the 2023-2024 school year in multiple respects, including but not limited to by failing to provide the Student with an appropriate program and placement for the 2023-2024 school year. (P-A, p. 11) As relief, the Parents seek tuition for the 2023-2024 school year at the private school (“Private School”) where they unilaterally placed the Student, as well as funding for the Student’s wrap-around Applied Behavior Analysis[1] (“ABA”) program, which consists of at-home ABA therapy, supervision of that therapy by a Board Certified Behavior Analyst (“BCBA”), and parent counseling and training (“PCAT”).[2] In their due process complaint, the Parents also sought an immediate pendency order.
I was appointed to this matter on July 13, 2023. On July 14, 2023, I issued an order denying consolidation of this matter with Case No. 247673, which also involved the Student.
I scheduled a pendency hearing for August 3, 2023. On August 1, 2023, the DOE issued a pendency implementation form in this matter, so I cancelled the pendency hearing. I held a pre-hearing conference in the case on August 22, 2023, and a status conference on September 19, 2023, during which I scheduled an impartial hearing for October 17, 2023.
The impartial hearing took place on October 17, 2023. The DOE submitted one proposed exhibit, which I entered into evidence as DOE exhibit 1, without objection. The DOE informed me that the DOE would not call any witnesses, and the DOE conceded that it failed to provide the Student with a FAPE according to Prong I of the Burlington-Carter framework. (Tr. 24, 29) I also entered the Parents’ proposed exhibits A through AA into evidence without objection. [3] Both parties made opening statements, and the DOE rested. (Tr. 29-39) The DOE waived cross-examination of the Parents’ four affidavit witnesses: the director of education of the Private School (“Director”), the psychologist who evaluated the Student (“Psychologist”), the Student’s board certified behavior analyst (“BCBA”), and the Student’s mother (“Mother”). The Parents then rested their case. (Tr. 40-42) The DOE did not make a closing statement, and Parents’ Counsel rested on her opening statement. (Tr. 40-42)
The record in this case closed on October 30, 2023. A list of the documentary evidence in this proceeding is appended to this decision.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law Art 89 § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. Part 200, and Section 504 of the Rehabilitation Act.
The Parents did not identify any specific claims under Section 504 of the Rehabilitation Act that are not subsumed under the IDEA that would merit separate analysis and discussion. Therefore, I will not separately analyze the Section 504 claims raised in the due process complaint.
FINDINGS OF FACT
After considering all the evidence, as well as the arguments of the parties, my findings of fact are as follows:
The Student is [REDACTED] years old and is classified by the DOE as a Student with Autism. (D-1, p. 1) The Mother testified that the Student received preschool special education and that when it was time for the Student to prepare for kindergarten, the DOE held an IEP meeting for the Student and placed the Student in a public school program consisting of a large general education classroom with ICT services. (P-AA, ¶ 4) The Student began kindergarten in September 2019 and the Student’s “struggles worsened;” the Student pushed and hit other kids in the classroom. (P-AA, ¶ 5) The Mother testified that the Parents took the Student for a private evaluation in 2019, at which time the Student was diagnosed with Autism, and the evaluator recommended ABA for the Student, a “much quieter school setting,” an auditory processing evaluation, and a paraprofessional. (Id.)
The Mother testified that the Student continued to struggle during 2020 and 2021. (P-AA, ¶¶ 6-7) The Mother testified that the Student’s May 2020 IEP stated the Student was hitting and spitting on fellow students, flipping over chairs, and throwing things around. (Id., ¶ 6) At a May 2021 IEP meeting, the Parents were told that the DOE “was aware that the Student would benefit from ABA,” but the Student was not given a more supportive program and ABA. (P-AA, ¶ 7)
A neuropsychological examination of the Student dated April 14, 2022, states that the Student should be “referred immediately to the Central Based Support Team (CBST)” because the Student “requires a placement in a specialty non-public school program which addresses the total educational needs of bright children with significant symptomatology of ASD who experience behavioral issues preventing them from accessing their educational program.” (P-L, p. 29) The evaluation further states that the Student needs “total wrap-around services.” (Id.) The evaluation confirms the Student’s Autism diagnosis and also diagnosed the Student with Social Pragmatic Language Disorder, Specific Learning Disorder with impairment in reading (with deficits noted in comprehension) – SEVERE; Specific Learning Disability with impairment in mathematics: including number sense, memorization of arithmetic facts, accurate or weak calculation, weak math reasoning – SEVERE; and Attention Deficit/Hyperactivity Disorder, combined type. (Id., p. 29)
The evaluation contains detailed recommendations for the Student, including but not limited to 1:1 intensive ABA instruction; a functional behavior analysis (“FBA”) and a behavior intervention plan (“BIP”); 1:1 speech-language therapy (“SLT”) 30 minutes per week and small group therapy; OT; compensatory 1:1 academic instruction; counseling; and parent counseling and training (“PCAT”). (Id.) The evaluation also recommends that the Student receive services on a 12-month basis. (Id.)
On October 3, 2022, a CSE convened and issued an IEP for the Student, who was then in the third grade at a public school. (D-1, p. 1) The IEP classifies the Student as a Student with Autism, and notes that the Student had other diagnoses including “social pragmatic disorder, specific learning disorder with impairment in reading, written expression, and mathematics, as well as ADHD combined type.” (Id.) The IEP also states that the Student engaged in maladaptive behaviors including “hitting, kicking, screaming, biting, head butting, eloping, and throwing objects.” (Id. at p. 2) The IEP reports that the Student performed “well below grade level” on reading assessments and in social studies, and was performing at kindergarten level in math. (D-1, pp. 2-3) The IEP states that the Student learned best from 1:1 instruction. (D-1, p. 2)
The IEP recommended that the Student’s placement be in a “NYSED-Approved Non Public School—Day.” (D-1, p. 23) The implementation date for the IEP was October 3, 2022. (D-1, p. 1) Until the Student could be placed in an NPS, the IEP recommended that the Student be placed in an 8:1+1 special education classroom for academic subjects, and that the Student receive counseling services 2 times per week for 30 minutes, individually; OT 3 times per week for 30 minutes, individually; PT 2 times per week for 30 minutes, individually; SLT 2 times a week for 30 minutes, individually, and 1 time per week for 30 minutes in a group. (D-1, pp. 7, 17) The IEP also recommended PCAT 4 times per month for 60 minutes. (Id.) The October 3, 2022 IEP also recommended push-in ABA therapy in the Student’s classroom for 30 hours per week and push-in BCBA supervision in the Student’s classroom for one hour per week until the Student could be placed in an NPS, as well as home-based ABA therapy for the Student for 10 hours per week; home-based BCBA supervision for 1 hour per week; and BCBA PCAT 4 hours per month. All of these ABA-related recommendations had a termination date of February 3, 2023. (D-1, p. 18)
The BCBA runs a full-service agency providing intensive ABA services (“ABA Agency”) that began providing home-based ABA to the Student and push-in ABA services at the Student’s public school on November 1, 2022. (P-Y, ¶¶ 7, 22) The BCBA testified that when the ABA Agency began working with the Student, the BCBA conducted an Autism Skills Assessment and assessed the Student using the Assessment of Basic Language and Learning Skills – Revised (ABLLS-R). (P-Y, ¶ 17) The BCBA testified that the Student “demonstrated significant deficits” during the ABLLS-R assessment, and that “it was also evident that the severe and dangerous behaviors that [the Student] frequently engaged in prevented [the Student] from accessing [the Student’s] education.” (P-Y, ¶ 20)
The Student began attending the Private School on April 24, 2023, at which time the ABA Agency stopped providing push-in school-based ABA. (P-V, ¶ 22; Y, ¶ 22) The Private School “is dedicated to the treatment, education and support of individuals with autism spectrum disorders and other special needs through empirically based procedures.” (P-R, p. 2) The Private School uses ABA to teach students and reduce inappropriate behaviors. (Id.) Each student at the Private School has a BCBA Case Manager who analyses students’ progress and evaluates their inappropriate behaviors using functional behavior assessments. Every six to eight weeks from September to June, the Private School holds clinical team meetings that include the students’ BCBA case managers, related service providers, BCBA program supervisors, parents, and any non-Private School providers. (P-V, ¶ 28) The Private School has two sensory gyms and provides related services such as SLT, OT, and PT. (P-R, p. 3)
The Private School provides services on a 1:1 basis. (P-R, p. 5) The Student’s weekly program at the Private School consists of 26 hours of 1:1 ABA therapy; three 30-minute sessions of 1:1 OT; two 30-minute sessions of 1:1 SLT and one 30-minute session of SLT in a group; two 30-minute sessions of 1:1 PT; and 1 hour of BCBA supervision. (P-V, ¶ 23)
The Mother testified that the DOE did not hold an IEP meeting for the Student before the 2023-2024 school year began, and the DOE did not secure a placement for the Student in a nonpublic school. (P-AA, ¶ 21) On June 22, 2023, the Parents sent the DOE a ten-day notice informing the DOE of their intent to place the Student at the Private School if the DOE did not provide the Student with an appropriate program and placement. (P-AA, ¶ 22) The Parents received no response from the DOE. (P-AA, ¶ 22) Accordingly, the Parents placed the Student at the Private School for the summer program that began in July 2023 and continued with the Student’s home-based ABA program, funded by compensatory hours the Student was awarded in prior proceedings. (P-AA, ¶ 23)
The Parents signed an enrollment contract with the Private School on May 16, 2023. (P-T) According to a tuition affidavit signed by the Private School’s finance manager on August 22, 2023, the Student’s tuition for the period between July 7, 2023, and July 31, 2023, was $21,085.00, and the Student’s tuition for the period between August 1, 2023, and June 30, 2024, is $398,544.00. (P-U) As of August 22, 2023, the Parents had not made any payments. (Id.)
The BCBA testified that the Student “requires a wrap-around program inclusive of specialized school-based services at [the Private School] and a home-based ABA program” to make appropriate educational progress. (P-Y, ¶ 26) The BCBA testified that the Student’s home-based program prevents regression in the school setting, and the ABA Agency collaborates with the Private School to make sure the Student’s progress is consistent in each setting. (Id.) The BCBA testified: Home-based ABA is a necessary service to ensure that [the Student] does not regress at school if behaviors are not remediated in all environments. Further, [the Student] is unlikely to receive educational benefit from school in the absence of an at-home ABA program, as ABA is very methodical and must be applied and reinforced to prevent regression and reinforcement of maladaptive behaviors. If maladaptive behaviors are not addressed in the home, then the access to education is impacted. (P-Y, ¶ 30)
The BCBA testified that in addition to the ABA-based instruction that the Student receives at the Private School, the Student requires 10 hours of at-home ABA therapy per week and two hours of BCBA supervision of that program. Moreover, the Parents require one hour per week of specialized and individualized PCAT. The BCBA testified that in the past, the DOE has paid the ABA Agency $150.00 per hour for home-based ABA, $200.00 per hour for BCBA supervision, and $200.00 for PCAT, and that these rates are “well within the community rates charged for this type of specialized services for ABA and BCBA.” (P-Y, ¶ 36)
The Parents have not made any payment towards the Student’s tuition at the Private School. The Mother testified that the Student’s at-home ABA program is currently “being funded through the awarded compensatory services, though [the Student] really needs more than the home-based program to minimize the gap in [the Student’s] skills due to the inappropriate program [the Student] had.” (P-AA, ¶ 25)
CONCLUSIONS OF LAW AND ANALYSIS
The IDEA establishes a “substantive right to a ‘free appropriate public education’” for children with disabilities. Endrew F. v. Douglas Co. School Dist, 137 S. Ct. 988, 993 (2017) (quoting Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982)). The IDEA directs that, in general, an IHO’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). Under the IDEA and New York law, where there is a procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE. See 20 U.S.C. § 1415 (f)(3)(E)(ii); 8 N.Y.C.R.R. § 200.5(j)(4)(ii).
A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). “Not every procedural error will render an IEP legally inadequate.” M.H. v. New York City Dep’t of Educ., 685 F. 3d 217, 245 (2d Cir. 2012) (citation omitted). If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).
In general, an 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). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. School districts are not required to “maximize” the potential of students with disabilities, but must provide “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.
Throughout the hearing process, a school district bears the burden to show that it (1) complied with the IDEA’s procedural requirements; and (2) designed an IEP reasonably calculated to confer educational benefit on the student. C.B. ex rel W.B. v. N.Y. City Dep’t of Educ., 2005 U.S. Dist. LEXIS 15215, *37 (E.D.N.Y. June 10, 2005); 20 U.S.C. 1415(i)(2)(C)(iii); see also Walczak, 142 F.3d 119. However, “a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” N.Y. Educ. § 4404(1)(c).
Under the three-prong test established by the Supreme Court in Sch. Comm. of Burlington, Mass, v. Dep’t of Educ. of Mass, 471 U.S. 359 (1985) and Florence County. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), parents who unilaterally place their children in private school are entitled to reimbursement from the school district if the services offered by the school district were inadequate or inappropriate, the services selected by the parent(s) were appropriate, and equitable considerations support the parent’s claim. See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert. denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 U.S. LEXIS 11520 (Oct. 15, 2007). The first prong of the Burlington-Carter test encompasses whether the student’s IEP provided a FAPE. Brock v. Dutton, 2015 U.S. Dist. LEXIS 44254, *14 (S.D.N.Y. March 31, 2015).
The Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007) (quoting Frank G. v. Bd. of Educ., 459 F.3d at 364-65). The private placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.” Frank G. v. Bd. of Educ., 459 F.3d at 364.
The final prong of the Burlington-Carter test involves the balancing of the equities. 20 U.S.C. § 1412(a)(10)(C)(iii). Reimbursement may be limited or denied if the parents failed to act reasonably, did not cooperate with the DOE’s attempts to evaluate the student, or failed to provide proper notice of the parents’ rejection of the Student’s placement. See 20 U.S.C. § 1412(a)(10)(C)(iii). When considering whether the parents have shown that the equities weigh in the parent’s favor, it is important to consider “whether the [parents] cooperated with the district in its efforts to meet its obligations under the IDEA.” C.L v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014).
Burlington-Carter Test Prong I: FAPE
As to Prong I of the Burlington-Carter test, the DOE failed to meet its burden at hearing. The Supreme Court has found a reviewing court may expect school district staff “to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S.Ct. 988, 1002 (2017). In this case, the DOE entered the October 3, 2022 IEP into the record, but called no witnesses and conceded that it failed to provide the Student with a FAPE for the 2023-2024 school year. Therefore, I cannot find that the DOE offered the Student a FAPE for the 2023-2024 school year.
Moreover, the weight of the evidence in this matter supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer the Student a FAPE for the 2023-2024 school year. The last IEP developed for the Student was for the 2022-2023 school year. School districts must ensure that an IEP is in effect by the start of the school year. Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010) (citing 34 C.F.R. § 300.323(a) (“At the beginning of each school year, each public agency must have in effect, for each child with a disability within its jurisdiction, an IEP....”). The DOE also failed to provide the Student with a placement for the 2023-2024 school year. To carry its burden under Prong 1, the DOE must prove that it timely offered the student a placement (a school that would implement the IEP). Failure to do so constitutes a procedural violation that significantly impedes the parent’s ability to participate in the decision-making process regarding the provision of a FAPE. V.A. v. City of N.Y., No. 20-CV-0989(EK)(RML), 2022 U.S. Dist. LEXIS 84556 (E.D.N.Y. May 10, 2022).
Burlington-Carter Test Prong II: The Appropriateness of the Parents’ Unilateral Placement
A unilateral placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. The relevant standard to apply is whether “the unilateral private placement . . . provides educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo, 489 F.3d at 115 (quotations omitted). No single factor is dispositive in this analysis. Id. The private placement does not necessarily need to provide certified special education teachers or every special service that could assist in maximizing the Student’s potential. Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 2020 U.S. Dist. LEXIS 16007 (S.D.N.Y. 2020), aff’d 2020 U.S. App. LEXIS 39739 (2d Cir. 2020) (citation omitted). Moreover, parental placements are not subject to the same mainstreaming requirements as a school district placement. Frank G. v. Bd. of Educ., 459 F. 3d at 364. In this case, the Parents submitted a program description and schedule of services from the Private School, as well a set of 2023-2024 goals prepared by the Student’s service providers at the Private School (ABA Goals, Speech and Language Therapy Goals, Physical Therapy Goals, and Occupational Therapy Goals) and PT, OT, and SLT progress reports from the summer of 2023. (P-C; D; E; F; G; H; I) The Parents also submitted the FBA and autism skills assessment prepared by the BCBA, the April 14, 2022 neuropsychological evaluation, and a set of evaluations conducted of the Student in 2022. (P-J; K; L; M; N; O; P; Q) In addition, the Parents submitted affidavits from the Director, the Psychologist, the BCBA, and the Mother. (P-V; W; Y; AA) Notably, in this case, the evidence makes clear that the Student’s placement is comprised of not only the Student’s unilateral placement at the Private School, but the wrap-around ABA program recommended by the Psychologist and developed and implemented by the ABA Agency and the BCBA.
The goals and reports prepared by the Private School show that the Student is being provided with a rigorous, supportive education by qualified providers who understand the Student’s strengths and limitations. For example, the Student’s 2023-2024 ABA Goals were prepared by a certified BCBA and discuss the Student’s maladaptive behaviors, as well as the Private School’s plan to decrease those behaviors. The ABA Goals document also notes the Student’s strengths in following written visual schedules, expressive language skills, reading sight words, and adding single/double digit numbers. (P-C, p. 1) The ABA Goals document then lists seven manual goals, each with multiple benchmarks/objectives. (P-C, p. 1) The nuanced, individualized nature of the goals and reports prepared by the Private School shows that the Private School’s program has been specially designed to meet the Student’s unique needs.
The testimony of the Parents’ witnesses also underscores the appropriateness of the unilateral placement. The Director testified about the Private School and the Student’s educational program and progress there. (P-V) The Director has a bachelor’s degree in psychology with a minor in education, a master’s degree in early childhood special education and an advanced certificate in ABA. (P-V, ¶ 2) In his current role, the Director oversees and helps coordinate all clinical components at the Private School. (Id., ¶ 4) The Director testified that he was been working in an educational setting with children on the autism spectrum for approximately 16 years. (P-V, ¶ 5)
In testifying about the Private School’s program, the Director noted that students at the Private School “require a trained 1:1 professional across their entire day to acquire, generalize and maintain skills, as well as constant monitoring of data collected to analyze for progress.” (Id., ¶ 8) The Director emphasized that due to the nature of the Student’s autism diagnosis, the Student “demonstrates day-to-day variability, and [the Student] requires consistency in expectations across all settings.” (P-V, ¶ 29)
Regarding the Student’s program at the Private School, the Director testified about how the Student’s ABA, SLT, OT, and PT goals for 2023-2024 were developed, and what skills the Student’s goals target. (P-V, ¶¶ 31-35) The Director testified that since July 2023, the Student “has made progress towards [the Student’s] behavioral, academic, and related service goals.” (P-V, ¶ 37) In terms of ABA goals, the Student’s providers “have seen an increase in [the Student’s] work towards requesting help without engaging in maladaptive behaviors.” (P-V, ¶
38) The Director testified that the Student is continuing to work on self-regulation skills and developing an increased ability to reciprocate greetings. (Id., ¶ 38) The Student has also improved in the Student’s toileting skills and ability to complete daily routines independently. (Id., ¶ 38) The Director testified that academically, the Student has “significantly improved in [the Student’s] math skills including addition with and without regrouping, subtracting with and without regrouping, and money skills.” (P-V, ¶ 39) The Student has also improved in reading and spelling. (Id.)
The Director also testified about the Student’s progress in related services. (P-V, ¶¶ 40-42) The Director testified that in SLT, the Student “has made progress in [the Student’s] ability to identify off-topic and on-topic comments” and “demonstrates increased confidence and ability to receive assistance completing novel skills, during structured activities.” (P-V, ¶ 40) In OT, the Student has demonstrated “an increase in attention and regulation” following the use of sensory strategies such as movement breaks and proprioception. (Id., ¶ 41) The Director noted that the Student “has many skills including a high reading level, high ability to memorize, and the ability to recall information that is given to [the Student].” (Id., ¶ 41) The Director testified that the Student has also made progress in PT, becoming “more receptive to participating in physical activities when [the Student’s] therapist presents them in a turn-taking manner.” (Id., ¶ 42)
The Director testified that the Student needs the 1:1 program provided by the Private School “because of the intense deficits [the Student] faces and [the Student’s] high need for individualized learning, repetition, and individualized reinforcement to make meaningful progress.” (Id. ¶44) The Director also testified that the Student needs a wrap-around ABA program in addition to the Private School’s program to ensure the Student “makes progress toward replacing [the Student’s] behaviors and increasing [the Student’s] availability for learning. Consistency, repetition, and skill development is the key to [the Student] developing the skills [the Student] requires to acquire learning, decrease maladaptive behaviors, and increase regulation and attention to task. Home-based ABA prevents regression.” (P-V, ¶ 47)
The Psychologist is a Ph.D. clinical psychologist licensed by the State of New York. (P-W, ¶¶ 1-2) In her testimony, in addition to discussing her neuropsychological evaluation of the Student, the Psychologist discussed her review of the program provided for the Student at the Private School and the wrap-around ABA program being provided by the ABA Agency. (P-L; P-W, ¶¶ 10-16) The Psychologist testified that the educational program provided by the Private School, combined with a home-based ABA program, is an appropriate educational program for the Student. (P-W, ¶ 11) The Psychologist testified, “I have reviewed the school schedule [the Student] is receiving at [the Private School] and I am pleased that [the Student] is receiving a full one-to-one instructional ABA schedule along with [the Student’s] related services. This is appropriate as this approach will decrease and replace [the Student’s] interfering maladaptive behaviors and provide an individualized skills development program that is data driven and rehearsed until mastered.” (P-W, ¶ 17)
The BCBA has a bachelor’s degree in psychology and an advanced master’s degree in science, summa cum laude, in clinical psychology and applied behavior analysis. (P-Y, ¶ 1) The BCBA has extensive experience providing one-to-one ABA services, conducting related assessments, and working with the DOE. (P-Y, ¶¶ 2-10) The BCBA incorporated the ABA Agency in 2018. (Id. at ¶ 7) The ABA Agency “provides in home one-to-one interventions with highly trained and experienced providers, special education teachers, clinical psychologists and social workers who all have training in behavioral change theories.” (P-Y, ¶ 12) The ABA Agency uses ABA with students to “decrease interfering behaviors and increase language and communication skills, social skills, appropriate play skills, cooperation skills and daily living skills as well as academic remediation.” (P-Y, ¶ 14)
The BCBA testified in depth about her work with the Student, whom she met in the spring of 2022. (P-Y, ¶ 17) The ABA Agency has been providing home-based ABA, BCBA supervision and PCAT since November 1, 2022. (Id., ¶ 22) The BCBA testified that the home-based ABA the Student receives targets the Student’s maladaptive behaviors for extinction and replacement, which makes the Student “more available at school for learning.” (P-Y, ¶ 24) The BCBA further testified that since the Student began receiving home-based ABA, the Student has been “successfully increasing the amount of time [the Student] is regulated and decreasing the amount of time [the Student] is dysregulated in all environments: in the home, the community, and at school.” (P-Y, ¶ 25)
The Mother testified that the Student “has really been making progress in the program developed by [the Private School] and [the ABA Agency].” (P-AA, ¶ 24) The Mother testified that the Student “responds so well to ABA” and wants to learn. (Id.) The Student has also been less dysregulated and regains control more quickly. (Id.)
As noted earlier, the DOE did not object to the Parents’ evidence being entered into the record, including the sworn affidavits of the Parents’ witnesses. There is nothing in the record which would undermine or controvert the testimony given by the witnesses’ affidavits. I therefore credit all of the Parents’ witnesses’ testimony in full.
I find that the Parents have met their burden to prove that the private program offers an educational program that meets the Student’s needs under Prong Two of the Burlington/Carter standard. Moreover, the wrap-around ABA program is clearly an essential component of the Student’s program that allows the Student to make progress and receive an educational benefit. As the Southern District recently held in a case addressing home-based ABA services, “both educational placement and additional services may be necessary to provide a particular student with a FAPE.” V.W. v. New York City Dep’t of Educ., 2022 U.S. Dist. LEXIS 147630 (S.D.N.Y. Aug. 17, 2022). In a slightly different context, the Second Circuit observed, “‘[e]ducational placement’ refers to the general educational program—such as the classes, individualized attention and additional services a child will receive—rather than the ‘bricks and mortar’ of the specific school.” T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 419 (2d Cir. 2009) (citation and quotation omitted). [4]
The weight of the evidence establishes that the Student’s individual special education needs are being addressed by the Private School and the wrap-around ABA program and that the instruction offered is “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364.
Burlington-Carter Test Prong III: Equitable Factors
Equitable factors are relevant to fashioning relief under the IDEA. Burlington, 471 U.S. at 374; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 (2d Cir., 2014); M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000) (citations omitted); see also Carter, 510 U.S. at 16 (“Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable”). Reimbursement of private school tuition may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 300.148(d); see S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 U.S. Dist. LEXIS 11354 (S.D.N.Y. Feb. 4, 2008); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 (S.D.N.Y. 2005).
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, “that they were rejecting the placement proposed by the public agency to provide [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” 20 U.S.C. § 1412(a)(10)(C)(iii)(I); see 34 C.F.R. § 300.148(d)(1). This statutory requirement “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).
In this case, the record does not establish that the Parents “acted with the requisite level of unreasonableness or misconduct that reimbursement should be denied on equitable grounds.” Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ., 550 F. Supp 2d 420, 437 (S.D.N.Y. 2008). There is nothing in the hearing record to suggest, let alone demonstrate, that the Parents interfered in any manner with the CSE’s evaluation of the Student or prevented it from providing the Student with a FAPE for the 2023-2024 school year. Furthermore, the DOE has raised no argument that the equities would not weigh in favor of the Parents. The record supports a finding that the Parents cooperated fully with the DOE and timely sent the requisite ten-day notice to the DOE in advance of the commencement of the 2023-2024 school year.
In addition, the record clearly establishes that the Parents incurred an obligation to pay the Private School the aggregate tuition sum of $419,629.00, and that they have not made any payments to the Private School towards the Student’s tuition. (P-V, ¶ 45) The record also establishes the necessity of the Student’s wrap-around ABA program, which costs $150.00 per hour for home-based ABA, $200.00 per hour for BCBA supervision, and $200.00 for PCAT. (P-Y)
Direct funding is relief encompassed by the equitable remedial powers inherent in the IDEA. See, e.g., Mr. and Mrs. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011). Given my finding that the Private School coupled with wrap-around ABA therapy is the appropriate program and placement for the Student, the Student is entitled to an award for direct funding for the Student’s tuition at the Private School for the 2023-2024 school year, to be paid directly to the Private School, as well as direct funding for the Student’s wrap-around ABA program, to be paid directly to the ABA Agency. See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453-54 (2d Cir. 2013) (“direct payment fits comfortably within the Burlington-Carter framework: like reimbursement, direct payment to the private school that provided the required educational program ‘merely requires [the school district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.’”) (quoting Burlington, 471 U.S. at 370-71).
While the amount of tuition at the Private School is not insignificant, I do not find that the tuition costs are excessive or unreasonable, given the Private School’s educational program for the Student. Carter, 510 U.S. 7, 15-16. After considering the entire record presented at hearing, I find that the equities support the Parents’ claim for direct funding.
OTHER RELIEF SOUGHT
In addition to direct funding for the Student’s 2023-2024 tuition at the Private School and wrap-around ABA program, the Parents seek additional relief which I will discuss below.
Transportation
The IDEA requires that a school district must provide transportation for a child with a disability if that service is necessary for a disabled child ‘to benefit from special education.” Donald B. v. Board of Sch. Comm’rs, 117 F.3d 1371, 1374 (11th Cir. 1997) (citing 20 U.S.C. § 1401(a)(17); see also N.Y. Educ. Law §§ 4401(4), 4402(4)(d). Transportation may be deemed necessary “if in its absence a disabled child in private school would be denied ‘a genuine opportunity for equitable participation in [a special education program]’, . . . or special education program benefits “comparable in quality, scope, and opportunity for participation . . . [to those provided for] students enrolled in public schools’” Donald B., 117 F.3d at 1375 (internal citations omitted).
In addition, New York law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” Education Law §§ 4401(1), 4402(4)(a); see also Education Law § 4401(2); 8 N.Y.C.R.R. § 200.1(ww).
The due process complaint seeks funding for the Student’s placement at the Private School for the 2023-2024 school year and transportation to and from this placement. (P-A; P-AA, ¶ 26) As I am finding the Private School to be a component of the appropriate placement, I will order that the DOE provide the Student with transportation to and from the Private School for the 2023-2024 school year.
Attorneys’ Fees
The Parents also requested attorneys’ fees and expenses in the Parents’ due process complaint. (P-A, p. 17) The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction. 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006). Only a court can determine if a party is entitled to attorneys’ fees and I would be exceeding the scope of my authority by determining that the Parents are the prevailing party entitled to costs. Therefore, to the extent that the Parents are seeking reimbursement and/or payment of attorneys’ fees and costs, the Parents’ request is denied.
I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parents’ remaining claims not discussed herein are dismissed with prejudice.
ORDER
Based above the above findings of fact, it is hereby:
1. ORDERED, that the DOE shall directly fund the Student’s 12-month 2023-2024 tuition at the Private School by paying the Private School $419,629.00 within 35 days of this order; it is further
2. ORDERED, that the DOE shall directly fund the Student’s wrap-around ABA program for the 12-month 2023-2024 school year as follows:
a. 10 hours of at-home ABA therapy per week at the cost of $150.00 per hour, by a provider of the Parents’ choice, within 35 days of submission of appropriate invoices;
b. 2 hours of BCBA supervision per week at the cost of $200.00 per hour, by a provider of the Parents’ choice, within 35 days of submission of appropriate invoices;
c. 1 hour per week of PCAT at the cost of $200.00 per hour, by a provider of the Parents’ choice, within 35 days of submission of appropriate invoices; it is further
3. ORDERED, that the DOE shall provide the Student with round-trip transportation to and from the Private School for the 12-month 2023-2024 school year.
SO ORDERED.
DATED: October 31, 2023
Michele Host (signed electronically)
Impartial Hearing Officer
Michele Host
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at: http://www.sro.nysed.gov.
APPENDIX A – ADMITTED EXHIBITS
DISTRICT’S EVIDENCE
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| 1 | Individualized Education Program (IEP) | 10/3/2022 | 26 |
PARENTS’ EVIDENCE
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| A | Demand for Due Process Hearing | 7/7/2023 | 18 |
| B | Ten Day Notice | 6/22/2023 | 3 |
| C | 2023-2024 ABA Goals | July 2023 | 4 |
| D | 2023-2024 Speech and Language Therapy Goals | July 2023 | 4 |
| E | 2023-2024 Physical Therapy Goals | July 2023 | 2 |
| F | 2023-2024 Occupational Therapy Goals | June 2023 | 3 |
| G | June 2023 Physical Therapy Progress Report | 7/1/2023 | 4 |
| H | August 2023 Occupational Therapy Report | June 2023 | 1 |
| I | 2022-2023 Speech and Language Therapy Progress Report | June 2023 | 3 |
| J | Functional Behavioral Assessment | Undated | 9 |
| K | Autism Skills Assessment | 4/24/2022 | 14 |
| L | Neuropsychological Evaluation | 4/14/2022 | 32 |
| M | Speech/Language Evaluation | 5/5/2022 | 15 |
| N | Occupational Therapy Evaluation | 5/5/2022 | 8 |
| O | Physical Therapy Evaluation | 5/5/2022 | 5 |
| P | OT Sensori-Motor Evaluation | 3/28/2022 & 4/07/2022 | 35 |
| Q | Auditory Processing Evaluation | 3/18/2022 | 9 |
| R | Private School: Program Description | Undated | 6 |
| S | Student Schedule of Services | Undated | 1 |
| T | Private School Enrollment Contract | 5/16/2023 | 1 |
| U | Affidavit of Costs | 8/22/2023 | 1 |
| V | Affidavit of Director | 10/9/2023 | 10 |
| W | Affidavit of Psychologist | 10/2/2023 | 5 |
| X | CV of Psychologist | Undated | 2 |
| Y | Affidavit of BCBA | 10/2/2023 | 9 |
| Z | Resume of BCBA | Undated | 3 |
| AA | Affidavit of Mother | 10/9/2023 | 8 |
Footnotes
[1] The Director of Education at the Private School defines ABA as “a scientific approach to education that utilizes research-based methods and data-driven techniques to increase or teach socially valid behaviors as well as decrease or eliminate socially inappropriate behaviors.” (P-V, ¶ 11)
[2] In the due process complaint, the Parents also sought additional relief, including one-to-one counseling, social skills training, feeding therapy, and assistive technology training, but Parents’ Counsel withdrew those requests on the record at the due process hearing. (Tr. 40-41)
[3] The DOE’s exhibit is cited as “D” followed by the number one, and the Parents’ exhibits are cited as “P” followed by a letter. The transcript is cited by “Tr.” followed by a page number.
[4] Alternatively, I could consider the Parents’ claim for tuition under the Burlington-Carter framework and evaluate the Parents’ request for direct funding of the Student’s wrap-around ABA services as compensatory services. If I did choose to analyze the Student’s program in this manner, the Parents would still prevail. As the Second Circuit has held, an appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The IDEA allows hearing officers to “fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). In this matter, the DOE failed to provide the Student with a FAPE and the educational program and services assembled by the Parents are an appropriate alternative.