Impartial Hearing Decision

FINDINGS OF FACT DECISION AND ORDER

Case Number 251598

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Dates of Hearing: August 18, 2023 (PHC), September 22, 2023, October 11, 2023

Hearing Officer: Rona Feinberg, Esq.

Actual Record Close Date: November 7, 2023

PERSONS WHO PARTICIPATED

August 18, 2023 REDACTED, Esq. Attorney Parent (Remote) REDACTED Law Firm

REDACTED , Esq. Attorney Department of (Remote) Education

September 22, 2023 REDACTED, Esq. Attorney Parent (Remote) REDACTED Law Firm

REDACTED , Esq. Attorney Department of (Remote) Education

October 11, 2023 REDACTED, Esq. Attorney Parent (Remote) REDACTED Law Firm

REDACTED , Esq. Attorney Department of (Remote) Education

REDACTED Parent (Remote) Hearing Officer’s Findings of Fact, Decision and Order

INTRODUCTION

On August 18, 2023, and September 22, 2023, and October 11, 2023, I held an Impartial Hearing in this case pursuant to the Individuals With Disabilities in Education Act (“IDEA”), 20 U.S.C. 1415(f)(1) regarding the education program of a school-aged child, REDACTED (“the student”). The hearings were held remotely.

BACKGROUND

The student is 16 years 4 months-old and is classified as having Autism. For the 2023-2024 school-year he is unilaterally placed at the REDACTED.

In a Request for a Due Process Hearing (“DPC”) filed on July 11, 2023, the parent, by her attorney REDACTED, Esq., of the REDACTED Law Firm, alleged that for various reasons the Department of Education failed to provide the student with a Free and Appropriate Education (“FAPE”) for the 2023-2024 school-year (Parent’s Ex. A). The parent asked for a finding that the Department of Education failed to provide the student with a FAPE, that REDACTED is providing the student with an appropriate education, and that the equities favor the parent (Parent’s Ex. A at 5). As a remedy, REDACTED asked at the hearing for an Order directing the Department of Education fund the student’s tuition at REDACTED and any related services requested for the 12-month 2023-2024 school-year (TR: 38, 44; Parent’s Ex. A at 5).

I was assigned as Impartial Hearing Officer on July 13, 2023. At that time, the compliance date was September 24, 2023. I granted two extensions of the compliance at the request of both parties. The extensions were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations. Specifically, (a) the student had pendency for the 2023-2024 school-year and was receiving services; (b) after the parent determined that she did not want to wait for a settlement process to take place, the parties were entitled to time to secure witnesses, to hold a hearing and to have this hearing officer review the transcript and evidence and issue a Decision and Order; (c) there were no financial or detrimental consequences likely to be suffered by either party by the delay; and (d) there was no prior delay in this case that impacted on the student’s education.

THE ISSUES REMAINING IN DISPUTE AT THE IMPARTIAL HEARING

The remaining issues in the case are: 1) whether the Department of Education deprived the student of a FAPE for the 2023-2024 school-year, and if so; 2) whether REDACTED is providing the student with an appropriate education, and if so; 3) whether the equities favor the parent or the Department of Education.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Point I

The Department of Education’s Case

The Department of Education attorney in the case, REDACTED, Esq., “waived” presenting a Prong I case and did not present an opening or closing statement or cross-examine the parent’s witnesses (TR: 130).

Therefore, I find that the Department of Education failed to meet its burden of demonstrating that it provided the student with a FAPE for the 2023-2024 school-year.

Point II

The Parent’s Case

Findings of Fact

The parent testified by Affidavit (Parent’s Ex. M), as did REDACTED, The Director of Education at REDACTED (Parent’s Ex. N). Both witnesses were available at the hearing but, as noted, Mr. REDACTED did not call either of them for cross-examination (TR: 42).

When the student was two years-old he was diagnosed with Autism, developmental delays, and speech apraxia (Parent’s Ex. M at 1). The student began attending REDACTED in 2013 when he was five years-old (Parent’s Ex. N at 3). REDACTED is an independent not for profit special education school for students on the Autism spectrum in need of a highly individualized program of Applied Behavior Analysis ("ABA"). The school provides an ABA program implemented by highly trained staff, including Board Certified Behavior Analysts ("BCBA"). Students are taught in a small class structure that allows for the provision of 1:1 and 2:1 instruction where appropriate. In addition to functional academics, the REDACTED program includes a verbal behavior component, social skills training, self-management instruction, appropriate levels of speech/language services incorporated throughout the day, occupational therapy at appropriate levels, co-treatment sessions so related services goals are included in classroom activities and objectives, a sensory gym, inclusion opportunities with non-disabled peers, opportunities to participate in activities in the community, transdisciplinary group instruction, participation in music therapy, parent training and education, and support for other family members (Parent’s Ex. N at 2).

Ms. REDACTED has known the student since he entered the school in 2013. The student turned 16 years-old in July 2023, shortly after the start of the 2023-2024 12-month school-year. Ms. REDACTED participated in developing the student’s program for the 2023-2024 school-year, supervises his teachers and instructors, and observes him during instruction. Ms. REDACTED spoke to the student’s teachers and instructors prior to the hearing (Parent’s Ex. N at 3).

For the current school-year the student is in a class of eight students and a 2:1 adult-to-student ratio. The class has one lead teacher and three ABA instructors. The student receives five hours each day of combined 1:1 and 2:1 instruction, as well as one hour of instruction for lunch and leisure skills with a 4:1 instructional ratio. His lead teacher, REDACTED, has a Master’s Degree in special education and has completed the requirements for a New York State teaching license in special and general education. One of the three ABA instructors has a Master’s Degree in ABA and has completed the requirements for the BCBA exam. The other instructors have bachelor’s degrees and have received initial training in the principles of behavior analysis, behavior management, data collection and analysis, and on other pertinent topics relevant to the education and safety of the students at REDACTED. The also receive extensive training by veteran staff members (Parent’s Ex. N at 4).

The student’s program for the 2023-2024 school-year is individualized to address his needs. The program is based on prior reports and criterion based assessments, including the Assessment of Functional Living Skills (“AFLS”). The program uses annual goals and short-term objectives that are developed based on the AFLS, the wishes of the parent, and in consideration of the student’s future educational needs. The curriculum is aligned with New York State alternative learning standards and includes functional academics, pre/vocational skills, household skills, selfmanagement skills, self-care skills, and community participation. The student also receives the related services of speech/language therapy and occupational therapy, and the parent receives counseling and training (Parent’s Ex. N at 5-7). The teaching and related service methods used with the student in each academic and social/emotional discipline, are detailed in both Ms. REDACTED’s Affidavit and the student’s June 2023 Educational, Occupational Therapy, and Speech/Language Progress Reports (Parent’s Exs. J, K, L, N at 6-18).

The student also participates in the school’s “REDACTED” program, in which he meets weekly with a neurotypical peer from a partnering school. The student’s peer received training from REDACTED on autism spectrum disorders and how to interact with students who have autism. Classroom faculty members are present at the meetings to support the interactions. During those sessions, the student the student is learning to reciprocate five questions or comments when his peer buddy asks/comments/says a statement, and he is learning to generate his own five questions or comments independently. The student is also working on continuing to demonstrate appropriate game playing behavior as asking contextual questions, using appropriate volume and tone when speaking, and demonstrating appropriate winner/loser behavior such as saying "good game" rather than becoming angry over the loss of the game (Parent’s Ex. N at 10-11).

Both Ms. REDACTED and the parent attested to, and detailed, the student’s significant progress in the REDACTED program (Parent’s Exs. M at 1-2, N at 6-18). The student’s progress is also evident in the student’s REDACTED Educational, Occupational Therapy, and Speech/Language Progress Reports (Parent’s Exs. J, K, L, M at 1-2 ).

The cost of tuition for the 2023-2024 school-year is $186,800.00 (Parent’s Ex. G at 1). As of August 10, 2023, the parent had not made any payments to the school (Parent’s Ex. H).

Conclusions of Law

Under the second criterion of the legal standard, a parent bears the burden of proof with regard to the appropriateness of the services that they obtained for the student for the school year in question. N.Y. Educ. Law §4404[1][c]; M.S. v. Board of Education of the City of Yonkers, 231 F.2d 96, 104 (2nd Cir. 2000); Application of a Child with a Disability, Appeal No. 11-053.

In order to meet that burden, the parents must show that the educational services were "proper under the act" [IDEA]. Sch. Comm. of Burlington v. Mass. Dept. of Educ., 471 U.S. 359, 370 (1985) i.e., that the educational program is one which met the child’s special education needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. Parents cannot be denied reimbursement because a private school does not meet the standards required for a state educational agency such as developing IEPs or employing faculty members that are state certified. Rather, the parents need only demonstrate that the placement provides "educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction” and that the placement is likely to produce progress and not regression. Ultimately, the issue turns on whether a placement - public or private - is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 188-189, 207; Florence County School District Four v. Carter, 510 U.S. 7, 14 (1993); Frank G. v. Bd. of Educ. of Hyde Park, 450 F.3d 356, 364-365 (2d Cir.2006), cert. denied, ___ U.S. ___, 128 S.Ct. 436, 169 L.Ed.2d 325 (2007); Walczak v. Florida Union Free Sch. Dist., 142 F.2d 119, 130 (2d Cir. 1998).

No one factor is dispositive of determining the propriety of a unilateral placement. Rather, courts must consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. Frank G., 450 F.3d at 364-365. While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parent are entitled to an award of tuition reimbursement. Rafferty v. Cranston Public School Comm., 315 F.3d 21, 26-27 (1st Cir. 2002); M.S, 231 F.3d at 105.

***

Based on the evidence submitted by the parent at the hearing, as detailed above and not repeated here, the parent established that REDACTED is providing the student with educational instruction specially designed to meet his unique needs during the 2023-2024 school-year. Endrew F. v. Douglas County School District, 580 U.S. __, 137 S.Ct. 988, 1000-1002 197 L.Ed.2d 335 (2017). I also find that the instruction is supported by such services as are necessary to permit the student to benefit from instruction. See Endrew F., 137 S. Ct. at 1000-1002; Rowley, 458 U.S. at 188-189, 207. Indeed, Mr. REDACTED, the attorney for the District who appeared at the hearing, did not argue otherwise.

Thus, I find that the parent has met her burden of demonstrating that REDACTED is providing the student with an appropriate education for the 2023-2024 school-year.

Point III

Equities

The IDEA provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dept. of Educ., 758 F.3d 442, 461 (2d Cir. 2014); Application of a Student with a Disability, No. 17-004.

There is no evidence that the parent failed to cooperate with the Department of Education in any way in relation to the 2023-2024 school-year and the Department of Education does not contend otherwise.

In an email dated June 9, 2023, the parent notified REDACTED, the Community Coordinator for CSE REDACTED, that she contacted the school recommended in the School Location Letter, the REDACTED, but was told that the student was not on the school’s list of incoming students, and that there were no available seats for the 2023-2024 school-year (Parent’s Ex. E at 2).

In a 10-Day Notice letter dated June 16, 2023, the parent informed REDACTED and REDACTED, the Chairpersons of CSE Regions REDACTED and REDACTED, respectively, that she had concerns about the student’s May 15, 2023 IEP program. The parent noted again that the recommended placement did not have availability for the student. She also noted that she had not received an alternative school placement recommendation (Parents’ Ex. F at 2). The parent stated that in the absence of any placement and an appropriate program for the student, she intended to place him at REDAC TED and seek payment/reimbursement from the Department of Education for tuition, related services, and transportation (Parents’ Ex. F at 2). There is no evidence that anyone from the Department of Education responded to the letter.

Based on the foregoing, I find that the equities in the case favor the parent.

ORDER

It is hereby Ordered that:

1) The parent is to provide the Department of Education with proof of the student’s attendance at REDACTED during the 2023-2024 school-year thus far, and evidence of the student’s REDACTED tuition cost including related services, and for transportation, if needed;

2) Within 30 days of the receipt of the information in (1) above, the Department of Education is to reimburse the parent for monies paid, if any, and pay the balance of the tuition costs directly to REDACTED. The total amount to be paid to REDACTED shall not exceed $REDACTED.^[1] If payment is not made within 30 days, the Department of Education must put the funds into a special needs trust to ensure that the placement receives timely payment. Costs for transportation, if any, shall be determined by the reasonable market rate.

Dated: November 19, 2023

Rona Feinberg

Rona Feinberg, Esq.

Impartial Hearing Office

EXHIBITS

P-A. DEPARTMENT OF EDUCATION: The Department of Education did not enter any documents into evidence. PARENT: Parent's Process Hearing Request 7/11/23 8 pages

P-B. OMITTED ^[2] 10/19/22 21 pages

INDIVIDUALIZED EDUCATION PROGRAMS

P-C IEP 5/5/23 42

CORRESPONDENCE

P-D Prior Written Notice and School 5/16/23 10

Location P-E Email from Parent to DOE re: 6/9/23 3 placement P-F Parent’s Ten Day Notice 6/16/23 5

REDACTED

P-G REDACTED Enrollment Contract 6/30/23 5 P-H REDACTED Tuition Affidavit 8/16/23 1 P-I REDACTED Upper School Program Undated 11

Offerings and Features for the 2023-2024 School Year P-J REDACTED Educational Progress Jun-23 7

Report P-K REDACTED Occupational Therapy Jun-23 11

Progress

Report P-L REDACTED Speech and Language Jun-23 6

Therapy

Progress Report

AFFIDAVITS

P-M Affidavit of REDACTED 9/28/23 3 P-N Affidavit of REDACTED 10/2/23 19 P-O REDACTED Class 2023-2024 1

Schedule

HEARING OFFICER: The Impartial Hearing Officer did not enter any documents into evidence.

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 athttp://www.sro.nysed.gov.

Footnotes

[1] There is no evidence that any related services were provided in addition to those covered by the REDACTED tuition.

[2] Exhibit B was a prior FOFD submitted in anticipation of a pendency claim. It is omitted since it is not relevant to the substantive issues in this case (TR: 42-43).