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CASE NUMBER: 603952 - NYC: 251713
FINDINGS OF FACT AND DECISION
Case Number: 251713
Student’s Name [1]: CXCXCXCXCXCXCXCXXX (“Student”)
Date of Birth: [REDACTED]
School District: # [REDACTED]
Hearing Requested by: [REDACTED] (“Parents”)
Request Date/Date Complaint Filed: 07/13/2023
Date(s) of Hearing: 09/15/2023
Actual Record Closed Date: 10/26/2023
Date of Decision: 10/26/2023
Date of Distribution if Different than Decision Date: n/a
Time Sensitive: No
Hearing Officer: Harry A. Christodoulou
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 15, 2023
For the Student:
[REDACTED] (hereinafter referred to as “Parents’ representative”)
[REDACTED] (hereinafter referred to as “Parent”)
[REDACTED] (hereinafter referred to as “Parents’ Witness 1”)
[REDACTED] (hereinafter referred to as “Parents’ Witness 2”)
For the Department of Education (“DOE”):
[REDACTED] (hereinafter referred to as “District’s representative”)
BACKGROUND AND PROCEDURAL HISTORY
Student is a [REDACTED]-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”), with a disability classification of “Autism” on Student’s latest IEP on record (Ex. P-B). Student’s eligibility for special education supports and services is not in dispute. On July 13, 2023, Parents, through Parents’ representative firm, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA (Ex. P-A). I was appointed on July 17, 2023, to preside over the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1) to determine the claims in the DPC concerning Student’s special education program.
It is asserted in the DPC that, based on numerous procedural and substantive grounds, the DOE failed to offer Student a free and appropriate public education (“FAPE”). Parents sought, inter alia, a finding that the DOE denied Student a FAPE for the 2022-2023 (“beginning 12/24/2022”), and the 2023-2024 school years (“SYs”); an order requiring the DOE to directly fund Student’s tuition at the Attending School for the 2023-2034 SY; relief relating to transportation, including compensatory Special Education Teacher Support Services (“SETSS”); an order that the DOE fund at-home Applied Behavioral Analysis (“ABA”) services; plus relief related to assistive technology (“AT”) (Ex. P-A-8, & P-A-9). Parents requested a pendency hearing and order in the DPC (Ex. P-A-2, & P-A-8). A pendency hearing was scheduled for August 22, 2023 (T. P3), however the parties resolved pendency amongst themselves, and pendency was no longer being requested (T. P11). The IH took place on September 15, 2023.
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA[2] and its implementing regulations,[3] and the New York State Education Law[4] and its implementing regulations.[5] Impartial Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act if delegated the authority by the Local Education Agency (LEA). The DOE delegated to the New York City Office of Administrative Trials and Hearings (“OATH”) the authority to adjudicate due process complaints under Section 504.[6] Parents’ representative confirmed that there was no final relief separately being sought under Section 504, and I therefore do not address Section 504 further in this decision (T. P12).
PARTIES’ POSITIONS AND CASES PRESENTED
District’s representative confirmed at the IH that the DOE was: not putting on a case only in the sense that the DOE was not calling any witnesses or submitting any documentation for admission to the record but was maintaining that Student was provided a FAPE (i.e., the DOE was not conceding that it failed to provide Student with a FAPE for the SYs at issue) (T. P24). District’s representative waived the DOE’s opening and closing statements (T. P84). District’s representative confirmed that the DOE rested its case (T. P28).
Parents, through the Parents’ representative, submitted twenty-six documents in support of the Parents’ case for admission to the record at the IH (T. P30, P44, P63, & P69). Parent’s representative made an opening statement and a closing statement in which, inter alia, summarized the facts of the case and the final relief claimed (T. P30P43). Parents’ disclosed documents included four affidavits. District’s representative cross-examined the deponents to three of the affidavits disclosed, namely Parents’ Witness 1, Parents’ Witness 2, and Parent. After Parents’ Witnesses and Parent testified, Parents’ representative confirmed that the Parents rested their case (T. P84). There were no formal objections to any of the documents admitted at the main hearing (T. P25). All exhibits that are admitted to the record are listed below (see Appendix B).
ISSUES IN DISPUTE
As the DOE did not concede that it failed to provide Student with a FAPE for the SYs at issue, whether Student was provided a FAPE for one, some, or both the SYs at issue is to be determined. Additionally, the appropriate remedies to be awarded, if it is found that the DOE failed to provide Student with a FAPE for one, some, or both SYs at issue, is to be determined.
OUTCOME
I have determined that Student was denied a FAPE, and granted Parents’ request for certain relief claimed.
LEGAL FRAMEWORK
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 Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits [7].
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 [8]. The IDEA directs that, in general, an IH officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE [9].
A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" [10]. To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP [11]. Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" [12].
The IDEA does not automatically require the provision of school services during the summer months for all students with disabilities; rather, such services must be provided when they are a necessary element of a FAPE for the student.[13] The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. [14]
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement – which does apply in this case[15] (T. P57-P58).
FINDINGS OF FACT AND DECISION
[I] Denial of a FAPE:
As part of the proposed solution, Parents request a finding that the DOE denied Student a FAPE for the 2022-2023 SY (beginning 12/24/2022) and the 2023-2024 SY (Ex. P-A-8).
The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [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.” [16]
Although the DOE has not conceded that it failed to provide Student with a FAPE for one or both SYs in issue, it elected not to call any witnesses to testify to offer any explanation let alone a “cogent and responsive” one.
2023-2024 SY:
Parent disclosed an IEP that was developed for Student pursuant to an CSE meeting held on February 2, 2023 (Ex. P-45), which has a projected implementation start date of February 16, 2023, and a projected annual review date of February 2, 2024 (Ex. P-B-1). In limited circumstances a finding in favor of the DOE on Prong-I is appropriate, despite there being no testimony from any witnesses in support of the DOE’s case [17]. Given however the numerous issues raised by Parents in the DPC to the recommended program, I am unable to determine that the IEP was sufficient based solely on its contents, without testimony or documentary evidence to explain why the CSE team’s recommended program would offer the student “an opportunity greater than mere trivial advancement”, why it would meet Student’s unique needs, and why it was reasonably calculated to enable Student to receive educational benefits, particularly given the testimony and disclosed documents on record. [18]
Even though on its face the complete program included in Student’s IEP was not insubstantial, it is asserted in the DPC and Parents’ representative asserted at the IH that the District failed to locate an appropriate placement and the DOE did not disclose any school location letter proving otherwise (T. P37, & P87-P89; Ex. P-A-5, & P-A-6). Parent testified that for the 2023-2024 SY, the DOE did not send her a school location letter and no school had reached out to her regarding a placement recommendation/location for Student (Ex. P-W-3).
Not only does the IEP note that the placement recommendation as “NYSED-Approved Non Public School – Day” (Ex. P-B-44), but it also documents that the reason for rejecting the “Other Options Considered” being “[a]s per IHO Order number 225918, [Student] will be deferred to CBST for a NYS NPS placement” (Ex. P-B-45). Accordingly, the DOE failed to make a placement available where Student’s program could be implemented and as such denied Student a FAPE for the 2023-2024 SY [19].
2022-2023 SY:
The IEP developed for Student from the 2023-2034 SY (addressed above) had a projected implementation date of February 16, 2023 (Ex. P-B-1). Neither party disclosed an IEP developed for the start of the 2022-2023 SY. Accordingly, the documentary evidence fails to establish that the DOE developed an IEP for the start of the 2022-2023 SY that would have provided Student with a FAPE, and the DOE did not prove otherwise. Parents disclosed the Findings of Fact and Decision under case number 225918, which is referred to in the IEP on record, where the Impartial Hearing Officer in the case (“The Prior IHO”) had found that the DOE had denied Student a FAPE for multiple SYs, including the 2022-2023 SY (Ex. P-L-11).
In the circumstances, I find that a denial of a FAPE for both SYs at issue (with a risk that this will continue for the remainder of the 2023-2024 SY) is evident from the record and the District did not discharge its burden to prove otherwise.
[II] Appropriate Remedies: Tuition Reimbursement/Funding
Parents are seeking tuition funding by way of direct payment to the Attending School for the 2023-2024 SY (Ex. P-A-8). Given my finding above for the 2023-2024 SY, Parents have met the first criterion of the three-part test set out in the Burlington/Carter case for tuition funding (i.e., Prong I).
Prong II - Appropriateness of the Parents’ Placement:
Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student.”[20] The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.”[21] The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. The standard to apply is whether “[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child.” [22]
The Judges in the Gagliardo case wrote that “no one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. …
They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction”[23] (my emphases).
In both instances highlighted above, the focus is on the needs of the child, which are individual and unique, and that the placement must reasonably serve those needs to an extent that permits the child to benefit from the instruction. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private placement need not provide certified special education teachers or an IEP.
Evidence on Record:
Parents’ representative presented detailed testimony by Parents’ Witness 1, and Parent and submitted documentary evidence in support of the Parents’ position that the Attending School placement is an appropriate placement for the 2023-2024 SY.
Parent’s Witness 1 testified by affidavit (Exhibit P-Z) and at the IH as to:
Witness’s title, namely the Executive Director at the Attending School; Witness’s educational background, credentials, and work experience, referencing Witness’s resume (Ex. P-S); Witness’s functions and responsibilities; the Attending School’s program offering, namely: being an independent special education school focused largely on the needs of students with autism and related disabilities in need of a highly individualized program of ABA, implemented by highly trained staff in a small class structure that allows provisions of one-to-one (“1:1”) instruction, includes a verbal behavior component, social skills training, self-management instruction, appropriate levels of speech/language services incorporated throughout the day, occupational therapy (“OT”) at appropriate levels, co-treatment sessions to include related services goals 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 (“PCAT”), and support for other family members.
Witness’s familiarity with Student, who began attending the school on April 18, 2023, including partaking in the development of Student’s program since Student’s enrollment, helping Student’s teacher assess Student and create Student’s goals, and working with Student directly for instruction; how at the time of enrollment Student presented with global delays and weaknesses in multiple areas, required 1:1 instruction to acquire new skills as well as a variety of tactics such as response and stimulus prompts that need to be systematically faded, as well as a systematically planned schedule for reinforcement; and how Student had difficulty communicating Student’s needs and required frequent access to reinforcement in the form of breaks, movement, and social reinforcement during challenging tasks and groups.
How for the 2023-2024 SY Student was placed in a class with a 1:1 adult-to-student ratio, with six students, one lead teacher and five ABA instructors; how Student’s program consists of a six-hour day and provides five hours each day of 1:1 instruction, including groups where Student requires 1:1 instructional support from an ABA instructor or lead teacher and one hour of instruction for lunch and leisure skills with a 2:1 instructional ratio.
How Student’s lead Teacher holds a master’s degree in special education, and has also completed the post graduate certificate course for certification as a behavior analyst and is currently fulfilling the final hours required to sit for the certification exam and is a registered behavior technician; how the classroom also includes five ABA instructors, four of which hold bachelor’s degrees in psychology and a fifth who has a master’s degree in early childhood general and special education, and who work under the direction of the lead teacher and Witness; how all the staff in Student’s class received initial training in the principles of behavior analysis, behavior management, data collection and analysis, as well as other pertinent topics relevant to the education and safety of students upon hire, and had observation opportunities; and how all of the faculty members within Student’s classroom also receive ongoing training and supervision, including biweekly faculty training, and observations from the lead teacher, training team, as well as from Witness as the classroom supervisor.
How the program designed for Student has been individualized to address Student’s needs as determined through a criterion-based assessment, including reflection of Student’s needs determined by the Assessment of Basic Language and Learning Skills Revised (“ABLLS-R”), using annual goals and short-term objectives that the school developed based on the assessment, Parents’ wishes, and Student’s future educational needs; and how the curriculum includes measurable outcomes and is continuously measured throughout the day.
How the ABLLS-R was conducted to help formulate goals for Student across a variety of domains that address Student’s deficits in each of these respective areas, providing specifics about Student’s strengths and deficits on specific tasks that allowed: for individualized goals to be developed for Student for the 2023-2024 SY; Student’s needs across a variety of domains that address Student’s deficits in each of these respective areas to be evaluated; and for the creation of an individualized instructional program that addresses the deficits observed through Student’s performance with the tasks on the ABLLS-R, such as difficulty with communication, social skills, difficulty with reading skills, and difficulty participating and learning in groups.
How the individualized programs created for Student are tailored to meet Student’s needs and are aligned with New York state alternative learning standards; how Student receives speech and language therapy (“SLT”) three times individually per week for 30 minutes each, one time in a group per week for 30 minutes each, and one time during lunch per week for 30 minutes each with 1:1 support from an ABA instructor in Student’s classroom during groups; how SLT addresses increasing Student’s receptive, expressive, and pragmatic language needs; and how Student’s Speech Pathologist, has a master’s degree in speech language pathology, is a licensed speech and language pathologist in NY, is certified as a teacher of students with speech and language disabilities in New York and holds a certificate of clinical competence.
How Student also receives OT individually two times per week for 30 minutes each, one time per week in a group for 30 minutes each, and a lunch consultation once per week to work on daily living skills each with 1:1 support from an ABA instructor in Student’s classroom during groups; how these sessions focus on sensory processing, self-care skills, gross motor coordination, and fine motor precision; and how Student’s Occupational Therapist has a master’s degree in OT and is a licensed occupational therapist in New York.
How the school provides PCAT to the families of the students that attend the school, and that Parents have participated in individualized training opportunities; how Parents attend clinical team meetings every eight weeks to review Student’s progress and behavior at home and school in addition to daily communication through a home note; how Parents ask for help when they feel they need more support from school staff to address Student’s needs; and how Teacher and Witness have already met with Parent to discuss Student’s behavior, specifically mouthing objects and identifying matched stimuli to address this behavior.
How Student requires a behavior intervention plan to address Student’s behaviors, including elopement; how the School has put in place multiple safeguards to address the issue; how the school observed Student within the classroom and therapy sessions while conducting an assessment, and identified five target behaviors that impacted Student’s learning or the learning of others in the classroom; how a functional behavior assessment (“FBA”) was conducted and a behavior intervention plan (“BIP”) was created that applied instructional strategies to functionally replace the target behavior of elopement, aggression, flopping, mouthing objects and loud vocalizations, with examples provided on how tactics employed had resulted in a decrease in certain of the behaviors from the recorded baseline means.
How Student has made academic progress since starting at the Attending School in April 2023, including Student’s listener skills, learning to follow one-step directions, functional communication skills, literacy skills (with examples provided); how Student has made progress socially by gaining attention from a peer, doing so with a text prompt for the mand/request, paired with a low tech augmentative and alternative communication (“AAC”) board, and is learning to play a turn taking game with a peer, including taking a turn, passing the game materials, and waiting without touching the game or leaving Student’s seat; and how Student is learning to respond to the directions “stop” and “walk with me” and has made progress with faded prompting.
How the self-management programming has focused on teaching Student to wait for increased durations of time to access preferred items, with student mastering waiting for five seconds and is now learning to wait for durations up to ten seconds; how Student is learning to expand self-help skills within the bathroom, and is making progress; how, to address Student’s difficulty remaining seated and focused long enough to attend to group instruction, the Teacher, staff and therapists pair themselves with reinforcement to gain Student’s attention, as Student requires systematic prompt fading to maintain this attending within groups, and Student is learning to participate in group instruction with individualized support from the Teacher.
How Student communicates using multimodal forms of communication, including verbal language, a high-tech AAC system (“HT-AAC”), and gestures; how SLT goals have focused on increasing Student’s receptive, expressive, operational competence, strategic competence, pragmatic, play and motor speech skills, with expressive goals focusing on improving Student’s overall communication skills, as well as the ability to use different words to request highly desired objects and/or activities, along with highly desired locations and/or desired objects within those locations, along with expanding Student’s expressive language to include the HT-AAC, as well as signs/modified signs; and how Student has made progress using vocal approximations and the HT-AAC device to request highly desired objects, using various single word requests (with examples provided); how Student is making steady progress with operational competence goals which focus on teaching Student to utilize the technical skills to use Student’s HT-AAC, including picking up the device when transitioning during speech sessions; how strategic competence goals are focusing on improving Student’s ability to intentionally seek out the HT-AAC for use when requesting a desired object or activity, although Student continues to require gesture and verbal prompts to initiate communication on the HT-AAC.
How OT goals for the 2023-2024 SY focus on Student’s sensory processing, self-care skills, gross motor coordination, fine motor, and visual perceptual skills, including focusing on increasing Student’s visual motor control during handwriting tasks; how Student’s OT sessions focus on building Student’s gross motor skills by improving eye-hand coordination, motor planning, and core strength skills to participate in various age-appropriate activities, and incorporate a sensorimotor obstacle course to provide Student with the proprioceptive and vestibular input necessary for regulation and organization; how Student has demonstrated a varied ability to attend to and follow through with a 1-step directions, and often requires a gesture and physical prompting paired with the verbal direction to increase Student’s ability to follow through with the provided direction; how in terms of self-care and activities of daily living, Student is working on increasing functional dressing skills through participation in buttoning tasks, as well as demonstrated by Student’s ability to don a jacket and manipulate the zipper with verbal and physical prompts.
How Student continues to need individual support and ABA using the program the school has designed, in order to address Student’s needs; how Student continues to struggle with receptive skills, communication, fine motor and social skills, and requires systematic fading of prompts within Student’s programming; how when working in a group, Student requires support to remain on task from the lead teacher or from one of the trained ABA instructors within the classroom, requires redirection and a dense schedule of reinforcement to maintain responding; how Student requires a program that provides opportunities for Student to learn how to interact with a peer in a structured way.
How Student requires 1:1 instruction from the lead teacher or ABA instructor to learn how to interact with peers, which the school is able to provide; how, due to Student’s behaviors, Student also requires a setting that has the behavior analytic expertise to conduct an FBA, implement a BIP using research-based tactics, as well as supervise the implementation of the strategies of the BIP to maintain Student’s safety; how Student requires daily analysis of Student’s behavior data, and needs research-based tactics to learn academically; how Student requires contemporaneous data collected throughout the day on Student’s responding; and how Witness believes that the Attending School is and continues to be an appropriate placement (which Witness expanded upon during cross-examination (T. P57-P59)), that can meet Student’s needs as Student has progressed across domains at the school during the 2023-2024 SY.
Parent testified by affidavit (Ex. P-W) and at the IH, inter alia, that: Since Student began attending the Attending School on April 18, 2023, she has seen many improvements in Student’s educational skills; Parent has observed Student say 2-word sentences verbally, whereas prior to attending the school Student was limited to 1-word sentences; Parent has observed that Student is now more concentrated and attentive when performing school tasks; when Student is seated and performing an assignment, Student is more attentive, focused, and gets out of Student’s seat less often, whereas before attending the school, Student would often walk away when seated to perform an academic task and would often not focus on the task at hand.
Parent has observed an increase in Student’s self-help skills, such as Student’s ability to wash hands independently, whereas before Student required adult assistance when washing hands; Parent has observed Student now identify all letters of the alphabet, whereas before Student could identify only some letters inconsistently; Parent has observed Student now generally count to 20, whereas before Student could only count to 10; and Parent has noticed an improvement in Student’s ability to follow directions, now being able to follow many 2-step directions, whereas before Student struggled with following even 1-step directions.
I find that the Student’s program at the Attending School is specifically designed to cater to a class or category of students, namely those with special needs requiring a 1:1 intensive program, with a small class size with a low student-to-teacher ratio, individualized attention, and small group instruction for behavioral and instructional needs, together with a high level of ABA. The entire program, including the learning methodologies and the supports provided are designed to meet the needs of this class or category of student. The Student falls in this class or category.
The detailed evidence presented by Parents’ Witness 1 substantiating how Student’s teachers specifically tailored the program for Student’s unique and individual needs, is uncontested. The evidence on record, which was not disputed through any testimony, let alone any expert testimony contradicting the testimony of Parents’ Witnesses 1, supports the Parents’ assertion that the Attending School is an appropriate placement for Student.
The testimony of the Parent, Parents’ Witness 1, and the Parents’ documentary evidence establishes that the Attending School is appropriate and is providing Student with educational instruction that is specifically designed to meet Student’s unique special education needs, supported by such services that are necessary to permit Student to benefit from instruction, for the 2023-2024 SY. I find that, based on the Student’s attendance at the Attending School since Student’s enrolment, as testified to by Parent, and Parents’ Witness 1, Student is making progress and will likely continue to do so for the remainder of the 2023-2024 SY.
Parents have therefore met the second criterion of the three-part test set out in the Burlington/Carter case for tuition funding.
Prong III - Equitable Factors:
Equitable considerations are relevant to fashioning relief under the IDEA. [24]
The IDEA also provides that reimbursement/funding 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. [25]
The IDEA allows that reimbursement/funding 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 a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” [26]
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.” [27]
Although a reduction in reimbursement/funding is discretionary, courts have upheld the denial of reimbursement/funding in cases where it was shown that parents failed to comply with this statutory provision [28].
The hearing record reflects that Parent notified the CSE by email correspondence dated April 4, 2023, and June 21, 2023, sent by Parents’ representative by email, of Parents’ intention to enroll Student at the Attending School and seek public funding for the 2023-2024 SY (Ex. P-G, & P-H). I find that in these letters Parents offered sufficient information to put the DOE on notice about Parents’ concerns regarding the CSE’s failure to make an appropriate program and placement recommendation and informed of Parents’ intentions, giving the DOE an opportunity to cure any deficiencies, which is the intent underlying the ten-day notice requirement. [29]
Amount of Tuition Claim:
It is apparent from the record that Parent signed a contract enrolling Student in the Attending School prior to the start of the 2023-2024 extended SY, after providing the CSE the first ten-day notice, namely on May 23, 2023 (Ex. P-Q-5). The Second Circuit has explained that, so long as parents cooperate with the CSE, “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.”[30] I find that the timing as to when the ten-day notice was sent to the CSE to be of no consequence to Parents’ claim and the relief being granted in this case.
Affiant, employed at the Attending School as Finance Manager, confirmed, as of July 12, 2023, the total contracted annual tuition rate of $181,280.00 owing to the Attending School for the 2023-2024 extended SY for Student’s enrolment from July 10, 2023 through June 27, 2024, with zero amounts being received from Parents leaving a balance of $181,280.00 due to the Attending School (Ex. P-R-1). This evidence is consistent with the tuition amount reflected in the enrolment contract (Ex. P-Q-1). Parents’ Witness 1 testified that the total cost of tuition for Student’s program at the Attending School for the 2023-2024 SY is $181,280.00, which reflects tuition for July 2023 through June 2024 (Ex. P-Z-11).
Parent also confirmed Student’s tuition rate at the Attending School for the 2023-2024 SY in the amount of $181,280.00 in her affidavit and asserts that her family is financially unable to afford Student’s tuition at the Attending School and then later seek reimbursement from the DOE. Parent detailed the family’s financial circumstances and sources of income in her affidavit (Ex. P-W-4). Although not strictly required, Parents have established financial need and made out a case for direct funding. This evidence was not contested. I also do not find any factors applicable to warrant a reduction of the claim for tuition funding based upon equitable factors.
Parents have therefore met the third criterion of the three-part test set out in the Burlington/Carter case for tuition funding. Having met all three criteria of the Burlington/Carter test, Parents are entitled to an Order for funding for the cost of Student’s placement at the Attending School for the 2023-2024 SY.
[III] Appropriate Remedies: Amendment to Student’s IEP (transportation/bussing accommodation)
As part of the proposed solution, Parents request an Order that the DOE “amend the IEP to reflect, appropriate specialized transportation between home and school to include, but not limited to, limited time travel (maximum 2 hours in each direction) and a bus route that ensures [Student] arrives at school no later than 8:45am (the start of [the Attending School]’s school day)” (Ex. P-A-9; T. P92-P93).
Parent’s Witness 1 testified that: during the 2022-2023 SY, while Student began at the attending School on April 18, 2023, the DOE did not begin bussing Student between home and the school until nearly three weeks later, on May 8, 2023; even when the bussing commenced, the school day begins at 8:45am, but each day Student’s bus did not arrive until 9:30am at the very earliest, and often times it did not arrive until after 9:30am; during that first 45 minutes or more of the school day, Student would miss the morning meeting group and 1:1 ABA instruction; Witness contacted the DOE’s Office of Pupil Transportation (“OPT”) on multiple occasions through the remainder of the 2022-2023 SY to report that Student’s bus arrived 9:30am or later each school day, but there was no improvement in Student’s bussing for the remainder of the 2022-2023 SY (Ex. P-Z-11).
Parents’ representative asserted that during the 2023-2024 SY over the summer extended SY program the DOE transportation slightly improved where Student was finally getting to school by 8:45am (T. P38).
Parent testified in her affidavit that:
It was not until Monday, May 8, 2023, that the DOE began providing Student with transportation between home and the Attending School; during that time, Parent had no choice but to drive Student to school in the morning and pick Student up from school in the afternoon, and incurred significant costs (addressed below); even when the DOE finally began providing Student with transportation on May 10, 2023, there were significant issues, for example, the start of the school day begins at 8:45am and that during the remainder of the 2022-2023 SY, the school reported to Parent that the DOE’s bussing was not getting Student to school until 9:30am to 9:45am; and that Student was also on the bus, on average, 5 hours per day (2.5 hours in each direction) (Ex. P-W-3).
On August 1, 2023, Parent emailed the DOE a letter written by Student’s Pediatrician, recommending specialized transportation accommodations including limited time travel; to date [31], the DOE had not contacted Parent to add any such specialized transportation accommodations; and currently, during the 2023-2024 SY, while Student would typically arrive at the Attending School by the 8:45am start time, Student is on the bus on average 3.5-4 hours per day or 1.75-2 hours in each direction.
Parent testified at the IH when asked questions regarding issues with bussing, beginning on September 7, 2023 through to the present [32], that: Student was arriving at school late, ranging from “about 9 -- from – ranges from 9:20 to 9:40, and coming back ranging from 5:30 to 6 o’clock”; Student began getting picked up at 7am, but that sometimes they would run late and would call; recently they started to pick Student up at 6:45am, but that it made no difference to the arrival time, with Student arriving no earlier than 9:20am; at the end of the school day, they start bussing at 2:30; when Parent used to pick Student up, dismissal would be 2:40, but bussing would usually start a little earlier; and Student was arriving home between 5:30 and 6 o’clock (T. P71-P73).
During cross-examination and redirect, Parent testified that: Student is the first picked up, and Parent believes there are other children on the bus but does not know how many (after Student is picked up), or how many stops or drop-offs occur between Student being picked up and getting dropped off; and when Student is taken home in the evening, Student is the last-drop-off and there are no other students on the bus (T. P77-P78).
Parent’s letter to the CSE, in which Parent requests “transportation accommodations as recommended by [Pediatrician]” and attaching the Pediatrician’s letter, is included in the record (Ex. P-J). Pediatrician motivates for a later pick up time and an earlier drop off time on the basis that Student “is autistic and preverbal and in need of a lot of educational and psychological services to held [Student] [w]ith [Student’s] major cognitive and [behavioral] deficits.” Student’s Pediatrician advocates for these accommodations because it “is unconscionable and excessive for a young child with [Student’s] level of dysfunction” (Ex. P-J-3).
It was documented on the Student’s latest IEP that “Student needs specialized transportation,” only noting that Student requires door to door transportation accommodations for safety and supervision” (Ex. P-B-43, & P-B-44). Neither party disputes Student's need for special transportation services.
The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from the child’s special education, in its definition of related services.[33] State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs".[34] Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education.[35] If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense. [36]
The State Education Department has indicated that a CSE should consider and document the needs of a student relating to the student’s disability, and provides several examples including: a student's mobility, behavior, communication, physical, and health needs, when determining whether or not a student requires transportation as a related service, and that an IEP "must include specific transportation recommendations to address each of the student's needs, as appropriate".[37] Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. [38]
When reviewing the transportation provisions made for a student by a district, the relevant question is whether the transportation arrangements are appropriate to meet the student's needs.[39] Generally, decisions over bus schedules and routes are generally left to the discretion of the district. However, if transportation is included as a related service in a student's IEP, a state educational agency may review the transportation provisions when they impact a student's access to a FAPE. Neither the IDEA nor Section 504 specifically addresses the appropriate length of bus rides for students with disabilities. Lengthy bus rides may however be discriminatory and may result in the denial of a FAPE [40].
Generally, in many of the cases where districts are found to be discriminating or denying a student a FAPE due to the length of a bus ride, the daily commutes of students with disabilities have exceeded one hour each way [41]. Parents are seeking an order to limit the duration of the bus rides to take Student to and from the Attending School to twice that amount of time, namely two hours each way. I agree that it “is unconscionable and excessive for a young child with [Student’s] level of dysfunction” to be sitting on a bus each day “on average” up to five hours a day. Such duration has the potential to lead to a denial of a FAPE. Accordingly, I find that an accommodation for limited-time travel is warranted. Parents’ request for the medical accommodation for a special transportation accommodation is being granted.
The CSE is tasked with recommending appropriate special education and related services that address the needs of the student. Student’s latest IEP on record was prepared pursuant to an IEP meeting held on February 2, 2023 (Ex. P-B). Parents’ letter to the DOE attaching Pediatrician’s letter was only sent on August 1, 2023 (Ex. P-J-1), after the DPC was filed. The CSE did not have an opportunity to hold a meeting to consider Parents’ latest evidence from the Pediatrician prior to the filing of the DPC. Additionally, Parents’ Witness 1 testified as to the usual busing delays impacting half of the buses dropping children off at the Attending School that occur at the start of the SY, indicating that: “they're kind of getting the routes down, figuring out the most efficient ways to pick up students. They're trying to accommodate some students on busses that have limited time travel, for example;” “in the fall … we're assigned new bus routes, new companies for our students. We receive those from the Office of Pupil Transportation. So in the -- you know, when you're dealing with, you know, probably 23 different busses, we do see lateness pretty frequently”(T. P55; & P56).
Notwithstanding the above, the DOE can get Student to school before the start of the school day, as evidenced by Parents’ representative’s confirmation that during the 2023-2024 SY over the summer extended SY program the DOE transportation slightly improved where Student was finally getting to school by 8:45am (T. P38). I note that even though Pediatrician also recommended a “1:1 para each way” (Ex. P-J-3), Parents did not request this. It is clear from the record that the CSE, when it determined that Student needed “door to door transportation and accommodations for safety and supervision (Ex. P-B-43), it was not grounded in a discussion of Student’s needs relative to the new facts that only came about later in April (Ex. P-G-3), May (Ex. P-H-4), and August (Ex. P-J-2, & P-J-3), namely that Student would be attending the Attending School starting April 18, 2023, that Student was arriving late at school and missing instruction, and therefore Parents were requesting limited-time travel, and that Parents’ request for accommodations was being supported by Student’s Pediatrician, respectively.
Accordingly, the CSE should determine the full extent of Student’s special transportation needs, whether it may include a mini-bus, reduced travel time (beyond the requested 2-hour limit each way), a 1:1 para, a route with fewer students etc. Additionally, input from the Office of School Health (“OSH”), OPT, and Pediatrician might inform the CSE team, which includes Parents, when making such a determination. As such, a CSE review meeting is being ordered for this purpose.
[III] Appropriate Remedies: Reimbursement of transportation costs
As part of the proposed solution, Parents request an Order that the DOE “reimburse the Parents at the current IRS mileage rate, as well as reimburse the Parents for tolls, for when, during the 22/23 school year (beginning 4/28/23) and 23/24 school year, the Parents needed to transport [Student] between home and [the Attending School] (22-mile distance in each direction) because of the DOE’s failure to provide appropriate transportation to the Student (i.e., 4/18/23 – 5/7/23, when the DOE failed to provide [Student] with transportation altogether). This includes the Parents’ 22-mile travel to take [Student] to [the Attending School], the Parents’ 22-mile return ride home, the Parents’ 22-mile ride to go pick up [Student] from [the Attending School], and the 22-mile return ride home with [Student] (i.e., 88 miles total per day)” (Ex. P-A-9).
Parents’ representative however asserted at the IH that mileage of 95.6 miles per day, calculated using the most direct route through Google Maps or “the quickest way,” which is 23.9 miles in each direction, was being used to calculate this claim. It was also asserted that the Parent at times, had to take a further route due to traffic, but Parents are not seeking that.
It was asserted that this mileage was travelled for 11 days where Parent had to take and fetch Student from the Attending School during the period April 18, 2023, through May 5, 2023, for a total of 1,051.6 miles. Based on the current IRS mileage rate of 65.5 cents, Parents calculate the mileage claim to be $688.79, plus $131.00 incurred to pay tolls with E-ZPASS (Ex. P-U), for a total claim of $819.79 (T. P93-P95).
Parent testified in her affidavit that (Ex. P-W-2, & P-W-3): On April 4, 2023, Parent, through her legal representative, provided the DOE with written notice of her intent to place Student at the Attending School for the remainder of the 2022-2023 SY, beginning on April 18, 2023; and Parent requested in the letter that the DOE ensure Student’s specialized transportation between home and the school be set up in time for the April 18th start date (Ex. P-G-3).
Student began attending the Attending School on Tuesday, April 18, 2023, however, it was not until three weeks later, on Monday, May 8, 2023, that the DOE began providing Student with transportation between home and school; during that time, Parent had no choice but to drive Student to school in the morning and pick Student up from school in the afternoon, in which Parent incurred significant costs; and the round trip mileage between Parents’ home and the school, even when taking the shortest route there and back, is 47.8 miles, supported by the Google Maps documents in evidence (Ex. P-T).
Between Tuesday, April 18, 2023, and Friday, May 5, 2023, Parent drove Student round-trip between home and the Attending School on 11 school days, namely April 18, 19, 20, 24, 25, 26, 27, May 1, 2, 4, 5, totaling 525.8 miles (47.8 miles round trip per day); the routes between Parents’ home and the school included toll roads, and Parents’ EZ-PASS account log of the tolls expenses for driving Student between their home and school on those dates totaled $131.00, calculated as follows [42]: April 18 = $13.10; April 19 = $13.10; April 20 = $19.65 ; April 24 = $13.10; April 25 = $6.55; April 26 = $6.55 ; April 27 = $6.55; May 1 = $6.55; May 2 = $19.65 ; May 4 = $13.10; May 5 = $13.10 (Ex. P-U).
The DOE presented no evidence to gainsay Parent’s evidence that she incurred these out-of-pocket expenses to take and fetch Student from the Attending School. The DOE was on notice (Ex. P-G) and did not arrange Student’s transportation to commence until May 8, 2023. If the Parent had not taken and fetched Student from the Attending School, Student would have missed 11 days of instruction.
I find the costs incurred reasonable and supported by Parents’ evidence. As such, Parents’ claim for reimbursement of these costs incurred is being granted.
[IV] Appropriate Remedies: Compensatory services (ABA SETTS)
As part of the proposed solution, Parents request an Order, due to the DOE’s failure to provide Student with bussing that allows Student to arrive at the Attending School by no later than 8:45am, being the start of the Attending School’s school day, that the DOE “fund compensatory education services in the form of ABA Special Education Teacher Support Services (“SETSS”), by a provider of the Parent’s choosing at their normal and customary rate, equal in the amount of school that [Student] missed due to the DOE’s failure to provide [Student] with transportation services that allows [Student] to arrive at [the Attending School] by 8:45am” (Ex. P-A-9).
More specifically, Parents are seeking SETSS by a trained ABA trained provider “in the equivalent of 45 minutes per day for each day during the 2022/2023 school year when the DOE finally began providing bussing to the [S]tudent on May 8th, 2023, through the end of the 2022/2023 school, due to the fact that [Student]’s school day started at 8:45a.m., but DOE bussing, at the very earliest, would get [Student] to [the Attending School] each day at 9:30 a.m., as testified to in the affidavits by [Parents’ Witness 1] and also the [P]arent. From May 8th, 2023, through the end of the school year, [Student] attended [the Attending School] 27 days, as evidenced by [Student’s] attendance records. … the school day started at 8:45, the absolute earliest [Student] was arriving was 9:30 a.m. And there were days when it was 9:45a.m., but the Parent's not seeking that. She's seeking 45 minutes per day for the days that [Student] was late. 27 days times 45 minutes, that's 20.25 hours. Therefore, the parent requests the IHO order the DOE to fund 20 hours of SETSS by an ABA-trained provider of the parent's choosing at a rate not to exceed $275 per hour” (T. P41-P42; P95-P96).
Parents are seeking compensatory services for the District’s failure to provide Student with a FAPE. A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE.[43]
An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation.
A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation).
Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits). Generally, an award of additional services should aim to place a student in the position the student would have been in had the district complied with its obligations under the IDEA [44].
Due to the time of day when Student is collected, the route taken to get Student to school, and/or the number of Student collected along the way, Student is arriving late and is missing part of the school day, including academic instruction. Parents are seeking a total of 20 hours of SETSS to be awarded to make up for these missed hours. Parents however do not come to these proceedings “with clean hands” on two counts. While this does not excuse the DOE’s delay in getting Student to school on time, it certainly speaks to the equities when considering whether Parents are entitled to this relief.
Firstly, Parents’ Witness 1 testified that there were times that she recalled through both the 2022-2023 SY and the current SY year where Parent had issues with busing. Parent would be bringing Student down for bussing or the bus would leave Student, and she would have to bring Student to school because the bus would not wait for two minutes for Parent to come down, which she had expressed concern to the school about (T. P55). Parents’ Witness 1 had also testified that lateness resulting from issues with busing did not result in Student being marked down as tardy. Since there were no instances of tardiness recorded at all during the 2022-2023 SY during Student’s attendance (Ex. P-Y-1), notwithstanding that Parent’s Witness 1 confirmed that Student had missed the bus due to Student not being down on the street in time to be collected by the bus, it is unclear whether the missed time for which Parents seek compensatory services includes times where Student was late for this reason (i.e., instances where the fault lay with Parents [45]).
Secondly, presumably Parents expect the DOE to fund Student’s complete program regardless of whether they are in fact sending Student to the Attending School to be educated, especially regarding the substantial unexcused absences from school, which is addressed below.
In other words, there is no information on record or request made to me in these proceedings, that Parents have offered to discount the cost of tuition for Student’s attendance at the Attending School for the 2022/2023 SY, for which the DOE is liable to pay pursuant to The Prior IHO’s order, for the substantial period that Student failed to attend the Attending School (i.e., the substantial unexcused absences) [46].
Parents’ Witness 1 testified that if, for example Student was ill or demonstrated illness or they had a doctor’s note, it would be an excused absence and if they did not have a specific reason, which would be unexcused. Parents’ Witness 1 testified that out of a total of 48 days of possible attendance, Student attended 36 of them, and therefore 25% of the time Student was absent, either excused or unexcused (T. P49-P50). Based on the split of 4 excused days versus 8 unexcused days out of 12 days absent, 33% of Student’s absences were excused and 67% [47] were unexcused. Parents’ Witness 1 testified that the school did not provide any supplemental instruction for the 25% of time that Student had missed (T. P50).
Parents’ Witness 1 testified that Exhibit P-Y was Student’s attendance records from April 18 through the end of June and is a complete record (T. P48). Parents’ Witness 1 testified that the school would typically denote a “purple ‘T’” for tardy if Student were late, for example coming in late due to a doctor’s appointment, not if Student were tardy due to bussing, but not due to other reasons. I note that no “purple ‘T’” for tardy was denoted at all for Student’s attendance on Exhibit P-Y for Student’s attendance during the 2022-2023 SY.
Although I will not be making a Prong III deduction based on Student’s extensive absence, mainly because that relief pertains to the prior SY, I find that Parents claim for a bank of SETSS for those missed hours should be dismissed on equitable grounds. Despite Student missing almost one-quarter of school for the time Student attended the Attending School during the 2022-2023 SY, which also covered excused absences (only 33%), the evidence established that Student nevertheless made progress, due to the robust and comprehensive program provided by the Attending School to Student during the time Student was in attendance. As such, Student was factually not prejudiced in Student’s learning by the bussing delays and even if some prejudice were to be asserted, it would be impossible to causally link any such prejudice directly to the missed hours caused by the bussing delays (20 hours according to Parents) as opposed to Parents’ actions that resulted in the substantial unexcused absences (67%, or 48 missed hours [48]), or even any lateness contributed by Parents’ actions resulting in Student missing the bus, if Student had been late on those occasions. As such, Parents’ request is denied.
[V] Appropriate Remedies: Funding Student’s home program
As part of the proposed solution, Parents request an Order that the DOE “fund ten (10) hours per week of at-home ABA services by an independent provider of the Parent’s choosing as part of [Student’s]’s educational program” (Ex. P-A-9).
Parents’ representative asserted that: Student continues to require ten hours per week of home-based ABA therapy in order to continue to make meaningful educational progress, as recommended by Evaluator 3, who conducted Student's August 2022 FBA and ABA skills assessment, as ordered by The Prior IHO, as well as recommended by Parents’ Witness 2, Student's current home ABA therapist; Parents’ Witness 2 testified regarding the importance of Student receiving consistent access to ABA both in the home and school environments, so that the educational skills learned in school can be maintained and reinforced to ensure these skills are implemented in both settings so that the wrong response is not inadvertently reinforced, which would then have a negative impact on Student's educational progress; and Parents’ Witness 2 testified that while she has been giving the Attending School some time to get back into the stream of things during the SY prior to making contact and collaborating, that she has reviewed educational records from the Attending School and has been working on similar skills at home so that the necessary carryover and reinforcement of skills is there (T. P90; & P91).
Parent’s Witness 2 testified by affidavit (Ex. P-V) and at the IH as to: her title, namely a Board Certified Behavior Analyst, currently employed by Provider 1; Witness’s educational background, referencing Witness’s resume (Ex. P-K); Witness’s familiarity with Student, namely currently providing Student with 1:1 home-based ABA therapy since June 2023; how Witness collaborates with Student’s related service providers and family, and would conduct informal assessments as needed; how Witness conducted the Verbal Behavior Milestone Assessment and Placement Program (“VB-MAPP”), in July 2023, which showed Student’s largest deficits were in the social domain, language, and negative behaviors that interfere with learning; that the “results of the VB-MAPP assessment were consistent with [Student’s] continued need for a 1:1 home ABA program”; and that given Student’s current behavioral, educational, and communication needs, Witness recommends 10 hours per week of home-based ABA therapy.
Parents’ Witness 2 testified that Student began receiving ABA therapy through Provider 1 in February 2023 “due to concerns of academic delays and availability to access to curriculum in a meaningful way”. Parents’ Witness 2’s bases for recommending that the home-based ABA therapy continue included, inter alia, that:
“[I]n order for [Student] to continue to make educational progress in [Student’s] areas of developmental skill deficits, it is my opinion [Student] continues to receive home-based ABA services. The home-based ABA therapy services will provide [Student] with individualized instruction to learn how to improve and manage [Student’s] maladaptive behaviors.”
“[S]ince [Student] began receiving home-based ABA therapy, [Student] has shown growth in areas such as communication and attending.”
“[Student’s] home-based ABA therapy is necessary to [Student’s] educational progress in the school setting. If [Student’s] ABA is not utilized in the home setting in addition to the school setting, it is likely that the skills [Student] acquired in school will not be maintained and reinforced. The at-home ABA provider can work with [Student] and the family to help implement these skills correctly and to ensure that the wrong response is not inadvertently reinforced, which would then likely have a negative impact on [Student’s] educational progress.”
After having conducted the VB-MAPP, Parents’ Witness 2 testified that Student “demonstrated a limited amount of vocal skills and had difficulty being understood by those unfamiliar [Student]. [Student] emitted several severe negative behaviors daily. These behaviors included throwing things, climbing on furniture, breaking items, urinating in places other than a toilet, and mouthing or swallowing non-food items. [Student] engaged in a high rate of self-stimulation and hyperactive behaviors (climbing, jumping, impulsivity) which affected [Student’s] ability to attend and impeded learning.”
The reasons advanced for Student’s need for the continuation of Student’s home program are unconvincing.
No longer necessary to receive a FAPE due to the robust private placement
Student’s circumstances have significantly changed since the VB-MAPP was administered and The Prior IHO had issued her order (Ex. P-L), mainly because of the relief that was awarded. The Prior IHO only provided in her order for the ABA home-based therapy up until the end of the 2022-2023 SY (Ex. P-L). Whilst Student was in an inappropriate educational setting, Student’s need for the home program was warranted. Given the new setting however, especially the elevated level of ABA Student receives throughout the day, such home program is no longer needed. I note that Parent testified in her affidavit to all of Student’s progress and credits all of it to Student’s attendance at the Attending School. Parent makes no mention whatsoever of how Student has improved at home by virtue of the 1:1 home-based ABA services Student had been receiving from Parents’ Witness 2.
Several courts have held that the IDEA does not require school districts, as a matter of course, to design educational programs to address a student's difficulties in generalizing skills to other settings outside of the school environment, particularly where it is determined that the student is otherwise likely to make progress, at least in the classroom setting. [49]
While the home-based ABA services may have been beneficial to Student during the time that Student was in the public-school placement, it was no longer necessary so as to provide Student with services that are reasonably calculated to enable Student to receive educational benefits, the standard enunciated in Rowley and Endrew F. The IDEA ensures the provision of an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents".[50] “While parents are entitled to funding for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow that they may take advantage of deficiencies in the district's offered placement to obtain all those services they might wish to provide for their child at the expense of the public fisc, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).” [51]
Parents’ evidence of Student’s ability to make progress during the 2022-2023 SY despite the substantial unexcused absences noted above, is telling and speaks to the robustness of the comprehensive “transdisciplinary approach to teaching in which all areas of a student’s deficits are addressed through collaboration between professionals and the home in our world-class, teaching model whose philosophical underpinnings are rooted in ABA” (my emphasis) (Ex. P-O-2; T. P30; & P31).
The evidence weighs against the need for additional PCAT
Parents’ Witness 1 testified in her affidavit that: the school provides PCAT to the families of the students that attend the school, and that Parents have participated in individualized training opportunities; Parents attend clinical team meetings every eight weeks to review Student’s progress and behavior at home and school in addition to daily communication through a home note; Parents ask for help when they feel they need more support from school staff to address Student’s needs; Teacher and Witness have already met with Parent to discuss Student’s behavior, specifically mouthing objects and identifying matched stimuli to address this behavior; the Attending School works on daily living skills with 1:1 support from an ABA instructor; Parents ask for help when they feel they need more support from the school staff to address Student’s needs; and that as Student masters certain skills (of walking and stopping in the building), these skills will be taught in the community; in terms of self-care and activities of daily living, Student is working on increasing Student’s functional dressing skills through Student’s participation in buttoning tasks, which is conducted with the therapist (Ex. P-Z-4; P-Z-7, P-Z-9, & P-Z-10). Additionally, as part of the description of the Attending School’s offering for the 2023-2024 SY, the school “[p]rovides consultation, education, and in-services for all communication partners (e.g., families, school staff, outside providers) to implement communication strategies that support the student’s communication needs across all contexts and settings” and “[c]oordinates the communication between all communication partners (e.g., families, school staff, outside providers) regarding a student’s AAC device and his/her complex communication needs”, amongst other things (Ex. P-O-5), as well as extensive family education and support consisting of:
“[The Attending School] recognizes the challenges of raising a child with special needs and provides several services to assist parents in maximizing their child’s educational experience. [The Attending School] offers a behavioral parent education program in the use of effective and non-coercive parenting practices. This parenting program includes an introductory workshop series in applied behavior analysis, monthly workshops on broad topics in ABA and special education, as well as individualized home-visits to work on specific measured goals.
Parent Education Workshops. Parent education workshops are offered throughout the school year on broad topics in special education, applied behavior analysis, speech and language or occupational therapy.
Parent Education workshops will occur virtually through a HIPAA compliant synchronous video platform or in person.
Parent Education Individualized Sessions. We recognize that parenting a child with special needs can present a variety of challenges, each unique to the student. Through individualized parent training sessions, tactics and principles from applied behavior analysis are individually tailored to assist parents in achieving goals that they may have for their child at home.
Home Visits. Parents have opportunities for home visits which allow [the Attending School] faculty to discuss student progress, behaviors and generalization concerns within the home setting. These home visit sessions are designed for coaching and feedback on goals generalized within the home setting or goals unique to the home setting.
Grandparent Education Workshops. Grandparent education workshops are offered on broad topics in special education, applied behavior analysis, speech and language or occupational therapy. These workshops include suggested readings for grandparents, as well as a support group discussion of the topic presented.
Additionally, individualized sessions are also offered for grandparents to learn how to apply specific strategies and tactics with their grandchild. Grandparent Education workshops will occur virtually through a HIPAA compliant synchronous video platform and also in person as permitted.
Clinical Team Meetings. Transdisciplinary collaboration is essential for ensuring the successful implementation, generalization, and coordination of individualized goals for all students at [the Attending School]. Every eight weeks, Clinical Team Meetings are scheduled and include the student’s case manager (instructor), lead teacher, speech pathologist, occupational therapist, Executive Director of Education, Director of Education or Supervisor, parents, and outside professionals who work with the student outside of school.
These meetings allow successful collaboration between all parties as well as coordinated efforts for addressing generalization, goal achievement, and behavior problems. Clinical team meetings are offered either virtually through a HIPAA compliant synchronous video platform or in person.
Parent Support Group. [The Attending School] offers a Parent Support Group with our school social worker in which parents have structured opportunities to meet, exchange information, network with other parents in the school, and discuss mutual experiences and issues unique to raising a child with autism and to their family dynamic. Parent support groups are offered virtually through a HIPAA compliant synchronous video platform and may be offered in person throughout the year.
Weekly Classroom Observations. [The Attending School] families are strongly encouraged to observe in their child’s classroom to understand instructional tactics and behavior interventions that are implemented daily, and to promote generalization from school to the home setting. These observations typically last one hour and are followed by a fifteen-minute consultation with the lead teacher. Observations may occur virtually through a HIPAA compliant synchronous video platform and are also offered in person.
Home-School Communication. Reliable communication is provided through the use of a daily school-to-home log in which information is shared on the student’s progress towards goals, events of the student’s day, and daily supports.
Home-School Collaboration. We recognize the benefits of involvement from all parties who are a part of the educational process for [the Attending School] students. One of the key components for developing positive home-school collaboration includes our opportunity for community-based professionals (therapists, teachers, babysitters, etc.) to observe twice a month within the classroom, followed by an opportunity to speak to the teacher. These collaborative observations allow us to promote generalization of skills in the two most vital support environments available to our students” (Ex. P-O-6, & P-O-7).
Given the robust and comprehensive family education and support that the school offers, I find that the risk that a wrong response will be inadvertently reinforced, which would likely have a negative impact on Student’s educational progress is non-existent.
Home program not recommended by Evaluator 2
I note that Evaluator 2’s recommendations in her report indicated, at the time that Student was placed in the public-school setting, that Student required inter alia ABA therapy “for most of [Student’s] school day in order to instruct [Student] in communication and behavior” (my emphasis) but do not prescribe ABA at home (Ex. P-E-10). Evaluator 2’s recommendations include some “helpful” suggestions that can be used at home and school to remediate Student’s symptoms of autism spectrum disorder, which suggestions did not include ABA at home (Ex. P-E-10, & P-E-11).
Practicality of implementing the services at home
Of lesser importance but still a consideration, is the practicality of Student actually using the ABA hours sought given the time that Student arrives home each day (5:30pm / 6pm), whilst also try to fit in hundreds of hours of compensatory services awarded by The Prior IHO (319.5 hours of SLT; 147 hours of OT; 840 hours of ABA therapy; and 84 hours of PCAT).
Evidence of progress made despite no collaboration between the home provider and the school
During cross-examination, Parents’ Witness 2 testified, inter alia, that Witness started working with Student at the end of June and since Student is fairly new to the program, and they had just started working together recently, she had not coordinated with the school yet; Witness was going to wait because she was previously a special education teacher and knows the first few weeks “are a little hectic”, so she was waiting probably for another week to reach out to the school so they could coordinate, but that Student had been receiving services that are appropriate to Student in the home (T. P64-P65). When asked “with regard to the in-home ABA skills that you are teaching, what are they reinforcing or helping with regard to [Student’s] education?” Parents’ Witness 2 answered: “Well, I’ve read [Student’s] educational reports done, and we’re both working on similar things. Communication is a big one, focusing and attending to what’s in front of [Student], trying to remain within the learning area and not eloping. Those are the big ones. Social skills, we’re working on. [Student’s] hyperactivity. Like all the things that – a lot of the things that they’re working on in school, we’re also working on at home” (T. P65-P66).
Parents’ Witness 2’s testimony that Student’s first few weeks “are a little hectic”, so she was waiting probably for another week to reach out to the school so they could coordinate is questionable. Parents’ Witness 2 had been working with Student since June 2023 and had not reached out to or had any communication with the school as at the time she testified on September 15, 2023, months later. Student had been receiving the services at home since February 2023, started at the Attending School in the second half of April 2023, and yet there was no evidence that at the time IH of any collaboration or communication between the school and the home providers. Parents’ Witness 1 confirmed as much.
Parents’ Witness 1 testified, when asked during cross-examination in regard to the ABA instructors whether the school coordinates with the ABA instructors that services the Student at home, that they “do not currently have any collaboration right now”, and also confirmed that there was no communication either, clarifying that it was the case for both the 2022-2023 and the 2023-2024 SYs (T. P47).
Given the improbable reason proffered for not reaching out to the school, especially as Parents’ Witness 2 could have had multiple opportunities to benefit from the Attending School’s home-school collaboration initiative (addressed above), which includes the “opportunity for community-based professionals (therapists, teachers, babysitters, etc.) to observe twice a month within the classroom, followed by an opportunity to speak to the teacher” (my emphasis), as well as the questionable recommendation Parents’ Witness 2 made (addressed below), I do not find Parents’ Witness 2 to be a reliable witness.
Reliability of Parents’ Witness 2’s recommendation
Evaluator 3, who conducted the ABA Skills Assessment (Ex. P-F), recommended 10 hours a week of in-home ABA therapy “which include parent training hours as mentioned above” (Ex. P-F-28), namely “1 hour of parent [training] per week or four hours monthly to generalize skills across school and home” (Ex. P-F-27). The need for home ABA therapy at that time was being recommended for Student “to retain and maintain newly taught skills. Reinforcing and maintaining ABA skills in the home setting will allow for an increase in skills taught at school” (Ex. P-F-28).
Parents’ Witness 2 recommends that “given Student’s current behavioral, educational, and communication needs,” (my emphasis), Student should receive 10 hours per week of home-based ABA therapy (Ex. P-V-2). I find it highly improbable that now, after Student has been placed in an appropriate educational setting, receiving ABA therapy throughout the day, utilizing a bank of compensatory ABA services awarded, and even making progress when missing substantial schooling, Parents’ Witness 2, the very person who will be providing the services to Student, still feels that 10 hours per week of home-based ABA therapy is warranted. This is the exact amount [52] that was recommended by Evaluator 3 (Ex. P-F-28), at a time when Student had not received the 10 hours of ABA therapy per week Student should have been receiving (or any compensatory ABA services), whilst in an inappropriate educational setting with no ABA therapy provided throughout the school day.
The fact that Parents’ Witness 2 makes the same recommendation for 10 hours as Evaluator 3, even though Student is in an entirely different appropriate program, places in question the reliability of Parents’ Witness 2’s recommendation, and I therefore accord little weight to her recommendation.
For the above reasons, I find that the hearing record does not support Student's need for a home-based ABA program. The reasons proffered for recommending a home-based ABA program are being appropriately catered for, especially given the extensive behavioral parent education program that the Attending School offers, a factor that contributed to my finding that the Attending School was an appropriate placement, and to provide a separate award for those services would be duplicative and/or punitive. As such, Parents’ request is denied.
[VI] Appropriate Remedies: AT hardware and software
As part of the proposed solution, Parents request an Order that the DOE “provide the Student with the AT devices and AT applications recommended in the July 22, 2022, independent AT evaluation report. If the DOE fails to do provide [Student] with said AT within 30 days of the FOFD, we request the IHO order the DOE to allow the Parents to utilize a third-party provider of the Parents’ choosing to purchase said AT for the Student and the DOE must reimburse the third-party provider” (Ex. P-A-9; T. P42; P97).
Parent testified that: The Prior IHO ordered the DOE, within thirty days of the CSE meeting, which had also been ordered to be convened, to provide Student with the specific AT devices and applications that were recommended in Student’s July 2022 independent AT evaluation, “such as an Apple iPad 9.7 with 32 gigabytes of memory, the LAMP Words for Life software, and other AT supports”; at the CSE meeting, which was held later than had been ordered, Parent could do not recall the DOE discussing anything about adopting the AT device/applications recommendations made by the July 2022 independent AT evaluation as ordered by The Prior IHO; while the DOE recommended AT in both school and the home in the IEP that Parent received on February 14, 2023, the DOE did not recommend the AT devices and applications recommended by the July 2022 independent AT evaluation; the DOE only recommended “vague AT supports, such as “Software,” and “Dynamic display speech generating device””; and the DOE never provided Student with the AT devices or applications that were recommended in the July 2022 independent AT evaluation (Ex. P-W-2).
I sought clarity at the IH regarding the relief Parents were requesting. Parents were envisaging that a third-party would front the cost as Parents were financially not able to, and the Student would own the device. Parents’ representative explained: “Because what's happening is that, historically, the DOE, when they're getting an order saying they must provide the device, they're not doing so. But then the student has no other means to access that device. So what I'm asking is give the DOE a leash here, a short leash, provide the device within 30 days.
If they don't, the third-party provider will purchase the device. I'm just throwing a number out here. Say it's $1500. They will put up the $1500 to buy the device because the family doesn't have $1500 to spare here to buy the device and seek reimbursement. The third-party provider then submits it to DOE Implementation, the receipts. The DOE pays the third-party provider $1500. The device is the student's and the student to own. It's just basically somebody else is fronting the money for it since the parents are financially not able to. But the student owns the device.
…
Where if the DOE provides the device, the student, upon graduation, or if the AT -- or I'm sorry, if AT is removed from the IEP, [Student] does need to return it. But we're in a situation here where if the DOE refuses to provide the device in the first place, the family is stuck between a rock and a hard place.
Certainly, the third-party provider would not maintain the rights to the device because that would be unfair to the student. It would be the student's to own. And frankly, if the DOE fails to follow the directive within 30 days, it should be the student's to own. That's why I'm not automatically referring or asking that the third-party provider be the first step, but rather the backup plan if the DOE says, yeah, we were ordered to provide this to [Student], but we're not going to anyways, which unfortunately happens all the time” (T. P98-P100).
Impartial hearing officers do not have authority to enforce prior decisions rendered by administrative hearing officers.[53] In the event that the District did not implement The Prior IHO's order requiring it “provide to Student within thirty (30) days of the CSE meeting ordered herein the following AT devices and software …” (Ex. P-L-42, & P-L-43), Parents could seek enforcement, which they could do by filing a State complaint against the District through the State complaint process or by seeking enforcement through the judicial system. [54]
In a recent SRO decision [55], the SRO found that the IHO exceeded her authority in the matter by ordering that certain interest would accrue on amounts ordered, should the District fail to comply with the other directives of the IHO’s decision. In vacating the relevant portion of the IHO’s order, the SRO provided several bases, supported by authority, for the SRO’s decision, including:
i) To the extent the IHO's intent in ordering such relief was to address a perceived systemic problem with implementation of IHO orders in the District, generally, “systemic violations [are] to 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”. “Thus, neither the IHO, nor I for that matter, have plenary authority to pass judgment on the district implementation policies;” ii) The IHO's directives relating to the implementation of the order tends to intrude on the District's discretion to follow an administrative process to comply with the order; iii) In a class action lawsuit relating to the District's failure to implement final IHO orders, the District and the class members entered into a stipulation to target the District's timely implementation of orders and the court appointed a special master to bring the District into compliance with its obligations under the stipulation[56]. Insofar as the IHO's order places additional requirements related to the District's implementation of the order, this type of activity by an IHO has the potential to interfere with the processes being implemented pursuant to the stipulation and under the guidance of the special master and the court; and iv) To the extent the IHO's award of interest was an attempt to direct enforcement of the primary order for reimbursement for tuition and other costs before the District has lapsed or failed in its implementation, that type of enforcement is not permissible in a due process hearing under IDEA.
The order sought by Parents, firstly asks me to order what The Prior IHO has in essence already ordered, namely the recommended hardware and software. As a simple test, if I were to grant the requested order and the DOE were implement my order and The Prior IHO’s order, the Student would receive such AT twice. Parents’ requested relief however now also includes an enforcement mechanism, to wit: “if the DOE fails to follow the directive within 30 days, it should be the student's to own. That's why I'm not automatically referring or asking that the third-party provider be the first step, but rather the backup plan.” This is precisely the type of “additional requirement[s] related to the District's implementation of the order” that the SRO, for the reasons mentioned above, found impermissible, and vacated that part of the IHO’s award. As such, Parents’ request is denied.
[VII] Appropriate Remedies: AT training
As part of the proposed solution, Parents request an Order that the DOE “fund 42 hours of AT training by a provider of the Parents’ choosing, at their normal and customary rate”, at a rate not to exceed $300.00 (Ex. P-A-9; T. P43; P97-P98). As with the Parents’ claim for AT hardware and software, The Prior IHO has already provided a comprehensive order affording AT training for Student and Parents, namely:
“ORDERED that the DOE shall provide one hour per week of AT training for the 12-month 2022-2023 school year retroactive to July 2022 for a total of 42 hours, of which Parents may elect to designate a portion for training of Parents and those using the AT devices to communicate with Student and which may be accessed for a period not to exceed one (1) year from the date of this Order; and it is further” (Ex. P-L-42).
As regards the test postulated above, if I were to grant Parents’ request and order 42 hours of AT training, and the DOE were to implement my order and The Prior IHO’s order, then Student (and Parents if the contemplated election is made), would receive a total 84 hours of AT training, which is unwarranted.
The Prior IHO contemplated that the DOE may not comply with the order within the stated period and catered for that possibility by including the following:
“ORDERED that should the DOE not begin to provide said AT services within thirty (30) days after the CSE has reconvened, the DOE shall fund, at a rate not to exceed $250 per hour, said AT training to be provided by a provider of Parents’ choosing; and it is further
ORDERED that the DOE shall issue the payment directly to the AT services provider within thirty (30) days of submission to the DOE of invoices for the AT services rendered” (Ex. P-L-42).
Evaluator 1 had recommended 46 hours of AT training (Ex. C-20), which were reduced by The Prior IHO to 42 hours (Ex. P-L-28). I understood Parents to be seeking an order in the proceedings before me for 42 hours of AT training based on the DOE’s failure to have provided these hours. To the extent however that Parents are seeking to effectively double the AT training hours recommended by Evaluator 1, I do not find the record supports a finding that such a level of training is necessary or required. Parents’ Witness 1 testified that the Attending School is making an AT device available (i.e., a loaner) to Student (Ex. P-Z-8) and therefore notwithstanding the DOE’s failure to comply with The Prior IHO’s order, Student (and Parents if exercising the election) can access the ordered AT training by a provider of Parents’ choosing pursuant to the Prior IHO’s order. As such, Parents’ request is denied.
[IV] Appropriate Remedies: Remaining relief
Other than the relief set out in my Order below, I do not find any other basis or evidence in the record supporting any additional relief.
ORDER
Based upon the above Findings of Fact, it is hereby:
1. ORDERED that, the DOE shall directly fund Student’s placement at the Attending School for the 2023-2024 school year in the sum of $181,280.00 (One Hundred and Eighty-One Thousand, Two Hundred and Eighty Dollars), less any payments already paid by the DOE to the Attending School for the 2023-2024 school year under or pursuant to stay-put (as applicable).
2. FURTHER ORDERED that, the CSE shall convene a review meeting within 35 (thirty-five) days to review Pediatrician’s letter (Ex. P-J-3) and any reports or information provided by OSH and/or OPT, and shall amend Student’s latest IEP to provide appropriate specialized transportation accommodations to be listed as part of Student’s IEP, which shall include:
a) Limited-time travel appropriate for Student, considering the needs of Student relating to Student’s disability, which shall not exceed 2-hours in each direction.
b) A transportation route that will ensure that Student arrives at school no later than 8:45am, whilst Student is attending the Attending School.
3. FURTHER ORDERED that, the DOE shall, reimburse Parents the transportation costs incurred transporting Student to and from the Attending School over the period April 18, 2023, through May 7, 2023, in the sum of $819.79 (Eight Hundred and Nineteen Dollars, Seventy-Nine Cents).
SO ORDERED.
DATED: October 26, 2023
__H.A.C._ (Signed Electronically) ___
Impartial Hearing Officer
Harry A. Christodoulou
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 – REDACTION IDENTIFICATION PAGE
[REDACTED]
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENTS’ EXHIBITS
Exhibit Document Date Pages
P-A Impartial Hearing Request and Pendency Motion 07/13/2023 15
P-B Individualized Education Program (IEP) 02/02/2023 46
P-C Independent Assistive Technology Evaluation Report by Evaluator 1 07/22/2022 20
P-D Independent Functional Behavior Assessment and Behavior Intervention Plan by Evaluator 2 08/10/2022 17
P-E Independent Neuropsychological Evaluation Report by Evaluator 3 08/11/2022 15
P-F Independent Applied Behavior Analysis (ABA) Skills Assessment Report by Evaluator 2 09/15/2022 30
P-G Ten-Day Notice Letter to the DOE with Delivery Receipts 04/04/2023 9
P-H Ten-Day Notice Letter to the DOE with Delivery Receipts 06/21/2023 10
P-I Emails to the DOE’s Pendency Unit Regarding the Parent’s Proposed Pendency Agreement 07/13/2023 – 08/02/2023 8
P-J Email to the DOE Regarding Transportation Issues plus Pediatrician’s Transportation Accommodations Recommendations Letter Attached 08/01/2023 3
P-K Parents’ Witness 2’s Resume Undated 2
P-L Findings of Fact and Decision (Case No. 225918) 12/23/2022 50
P-M 2023 Provider 1’s Rate Sheet 01/01/2023 2
P-N Provider 1’s ABA Progress Report by Parents’ Witness 2 07/27/2023 7
P-O Attending School Program Description Undated 8
P-P Student’s Attending School Class Schedule Undated 1
P-Q Attending School Enrollment Contract 05/30/2023 5
P-R Attending School Tuition Affidavit 07/12/2023 1
P-S Parents’ Witness 1’s resume Undated 9
P-T Google Maps Between Student’s Home and Attending School Undated 2
P-U Parent’s EZ-PASS Statement [REDACTED] for Driving the Student to and from home and Attending School 04/18/2023 – 05/05/2023 10
P-V Parents’ Witness 2’s Affidavit 08/15/2023 3
P-W Parent’s Affidavit 08/23/2023 4
P-X Provider 2’s Rate Sheet 01/03/2023 1
P-Y Attending School April 2023 Through June 2023 Attendance Record 04/18/2023 - 06/29/2023 1
P-Z Parents’ Witness 1’s Affidavit 09/08/2023 11
DOE’S EXHIBITS
Exhibit Document Date Pages
- - - -
IHO’S EXHIBITS
Exhibit Document Date Pages
- - - -
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution. Capitalized words not explicitly defined right after the word(s) in brackets are defined in the table in Appendix A – Redaction Identification Page on page 39.
[2] 20 U.S.C. § 1400 et seq.
[3] 34 C.F.R. § 300 et seq.
[4] Educ. Law Art. 89 § 4404 et seq.
[5] 8 NYCRR § Part 200.
[6] NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504- delegation-Signed.pdf.
[7] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[8] 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].
[9] 20 U.S.C. § 1415[f][3][E][i].
[10] Rowley, 458 U.S. at 203.
[11] Houston Indep. Sch. Dist., 200 F.3d at 349; Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]
[12] A.P., 370 Fed. App'x at 205; Van Duyn, 502 F.3d at 822; Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D.D.C. 2007].
[13] See Antignano v. Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11 [E.D.N.Y. Jan. 4, 2010].
[14] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Bd. of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].
[15] NYS Educ. Law § 4404(1)(c). Parents’ representative confirmed his understanding of the burden at a conference held on August 22, 2023
[16] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[17] See Application of a Student with a Disability, No. 23-090.
[18] See J.L. ex rel. J.R. v. New York City Dept. of Educ., 2016 WL 6902137, at *5-6 (E.D.N.Y. 2016).
[19] In L.B., ex rel. E.B., v. New York City Dep’t of Educ. the U.S. District Judge wrote: “Substantive violations of IDEA may include the failure to propose an IEP or deficiencies in the IEP itself. Id.; Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238-39, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). School districts are required to have a written IEP in effect for each child with a disability by the beginning of the school year, 20 U.S.C. § 1414(d)(2)(A), and, in New York State, the school year begins annually on the first day of July. See N.Y. Educ. Law § 2(15). Thus, failure to provide a written IEP by July 1 constitutes a substantive denial of FAPE. C.W.L. and E.L. v. Pelham Union Free Sch. Dist., 149 F. Supp. 3d 451, 465” (122 LRP 8348) [S.D.N.Y. 2015] (citations included). This case addressed a statute of limitations issue, where the parent had relied upon the following failures by the DOE (the “Failures”): to hold an annual review for the student for the relevant school year; to provide the parent with prior written notice of a change, or lack thereof, to the student's IEP; to send a school location letter with a placement for the student for the relevant school year; and to produce an annual IEP by the first day of the relevant school year. It was conceded by the DOE that the Failures had constituted the denial of a FAPE, and the DOE did not contest that it had denied the student a FAPE. The IHO Decision, which was the decision being appealed, did not probe whether the denial of a FAPE was procedural, substantive, or both, but found that "the DOE's failure to present a case at the hearing is a concession that it denied the student FAPE ...." (my emphases). The U.S. District Judge wrote, about the Failures, that in “any case, there were clearly both procedural and substantive violations of IDEA that amounted to the denial of a FAPE.” Id.
[20] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007].
[21] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006].
[22] Gagliardo, 489 F.3d at 115.
[23] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[24] Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; 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]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"].
[25] 20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 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 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 192 Fed. App'x 62, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at 69 n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001].
[26] 20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].
[27] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004].
[28] Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007].
[29] Greenland Sch. Dist., 358 F.3d at 160.
[30] C.L., 744 F.3d at 840.
[31] Parent’s affidavit was signed on August 23, 2023 (Ex. P-W-4). Parent also confirmed in her testimony at the impartial hearing on September 15, 2023, that she had received “[n]othing at all” in response to the letter (T. P75).
[32] Parent testified on September 15, 2023 (i.e., one week and one day after the start of the school day).
[33] See 20 U.S.C. § 1401[26]; & 34 CFR 300.34[a], [c][16].
[34] See Educ. Law §§ 4401[1]; 4402[4][a]; & Educ. Law § 4401[2]; 8 NYCRR 200.1[ww].
[35] See Application of a Child with a Disability, Appeal No. 16- 035.
[36] See Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; & 8 NYCRR 200.1[ww].
[37] Special Transportation for Students with Disabilities," VESID Mem. [Mar. 2005], available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf .
[38] See Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 [11th Cir. 1997]; Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997]
[39] Application of a Child with a Disability, Appeal No. 16-035.
[40] Letter to Anonymous, 20 IDELR 1155 (OSEP 1993).
[41] See, e.g., Covington Cmty. Sch. Corp., 18 IDELR 180 (SEA IN 1991) (One-way transportation must be limited to a maximum of one hour; the student must arrive at school not more than one-half hour after other students and leave school not more than one-half hour before the other students); Palm Beach County (FL) Sch. Dist., 31 IDELR 37 (OCR 1998) (A bus ride for students with disabilities was shortened to a total of 45 from 50 minutes, an amount of time similar to that scheduled for students without disabilities); and Hemet Unified Sch. Dist., 12 ECLPR 22 (SEA CA 2014) (A bus ride that would take an hour and 10 minutes each trip was inappropriately lengthy given child's acid reflux).
[42] Parent explained in her affidavit that the reason some days are only $6.55 in tolls is because, to save money and when time permitted, she would take a longer route that avoided toll roads.
[43] P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008].
[44] P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].
[45] These facts do not impact Parents’ claim for reimbursement of transportation costs (addressed above), as Parents’ claim was limited to the times when Parent transported Student to and from school before busing formally commenced on May 8, 2023 (i.e., from 04/18/2023 – 05/07/2023 (Ex. P-A-9).
[46] I have not factored that cost that is born by the DOE pursuant to The Prior IHO’s FOFD in the relief under this FOFD, precisely because that relief was not ordered by me, but by another IHO.
[47] Rounding has been used.
[48] Based on a 6-hour school day, multiplied by 8 days of unexcused absences.
[49] See, e.g., F.L. v. New York City Dep't of Educ., 2016 WL 3211969, at *11 [S.D.N.Y. June 8, 2016]; 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]; P.S. v. New York City Dep't of Educ., 2014 WL 3673603, at *13-*14 [S.D.N.Y. Jul. 24, 2014]; M.L. v. New York City Dep't of Educ., 2014 WL 1301957, at *11 [S.D.N.Y. Mar. 31, 2014]; K.L. v. New York City Dep't of Educ., 2012 WL 4017822, at *14 [S.D.N.Y. Aug. 23, 2012], aff'd, 530 Fed. App'x 81 [2d Cir. July 24, 2013]; Student X, 2008 WL 4890440, at *17; A.D. v. New York City Dep't of Educ., 2008 WL 8993558, at *7 [S.D.N.Y. Apr. 21, 2008]; see also 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]
[50] Walczak, 142 F.3d at 132.
[51] Application of a student with a Disability, SRO No. 22-100.
[52] In fact, strictly speaking Parents’ Witness 2’s recommendation would be more than Evaluator 3’s recommendation, unless Parents’ Witness 2’s recommendation also included “1 hour of parent [training] per week or four hours monthly to generalize skills across school and home”.
[53] See Educ. Law §§ 4404[1][a]; [2]; and A.R. v. New York City Dep't of Educ., 407 F.3d 65, 76, 78 n.13 [2d Cir. 2005].
[54] See 34 CFR 300.152[c][3]; SJB v. New York City Dep't of Educ., 2004 WL 1586500, at *4-*5 [S.D.N.Y. July 14, 2004], finding that parties need not initiate additional administrative proceedings to enforce prior administrative orders; see also A.R. v. New York City Dep't of Educ., 407 F.3d 65, 76, 78 n.13 [2d Cir. 2005].
[55] See Application of the New York City Dep’t of Educ., SRO No. 23-172.
[56] The SRO referenced: LV v. New York City Dep't of Educ., 2021 WL 663718, at *3 [S.D.N.Y. Feb. 18, 2021]; Order with Respect to Motion for Appointment of a Special Master, L.V. v. New York City Dep't of Educ., 03-cv-09917 [S.D.N.Y. filed Dec. 12, 2003].