New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 251775

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Date of Hearing: August 24, 2023

September 22, 2023

October 24, 2023

Actual Record Closed Date: December 19, 2023

Hearing Officer: Judith Schneider, Esq.

An Impartial Hearing for the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”) was conducted by me remotely via teleconference

Procedural History

The proceeding was initiated at the request of the parent by correspondence dated July 14, 2023, filed on July 17, 2023. (Ex. A) I was appointed Impartial Hearing Officer on July 17, 2023. Consolidation with Case No. 229247 was denied by order dated July 18, 2023 as that case was withdrawn without prejudice on July 18, 2023. (Ex. II)

A hearing with regard to the student’s pendency entitlements was conducted on August 24, 2023. A Interim Order on Pendency dated September 17, 2023 was thereafter issued which provided during the pendency period: an 8:1:3 program at the REDACTED (“REDACTED” or “School”); Speech Language Therapy (“SLT”) (4x30 1:1); Occupational Therapy (“OT”) (3x30 (1:1)); Physical Therapy (“PT”) (2x30 (1:1) and PTAC (Group 4x per year 30 minutes. (Ex. III)

Parties moved to extend the compliance date on various occasions for settlement discussions, anticipated testimony, the scheduling of witnesses and submission of evidence, receipt of the transcript and closing statements and issuance of the decision. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the requests for extensions of the compliance dates were granted.

The current compliance date is December 29, 2023. The record closed on December 19, 2023.

Positions of the Parties

The parent asserts the district failed to provide a FAPE for the 2023-2024 SY. ^[1]

The parent seeks placement in REDACTED which the student is currently attending pursuant to pendency. The parent also seeks an after-school home-based program of 5 hours per week of direct SETSS ABA by a provider trained in ABA, 5 hours a week of ABA therapy by a BCBA as well as one indirect hour for each service for collaboration and training, all at market rates. Further, the parent asserts district failure to appropriately consider the student’s need for compensatory services as a result of COVID and remote learning and seeks compensatory services of 420 hours of ABA delivered by a BCBA at fair market rate. The parent asserts that there is no basis in equity for denial or limitation of the relief sought.(Ex. II)

The district presented no evidence in this matter but for one IEP consistent with the parent’s complaint claims and made no claim with regard to the parent’s claim of FAPE denial. However, the district asserts that the parent has failed to establish: that the School and the home-based program sought are appropriate; that there is a contractual obligation to pay the School and/or ABA home-based providers; that there is parental financial need for direct payment. Further, with regard to the compensatory service claim based on COVID losses not made up the district claims that the parent has failed to establish that there are specific educational deficits caused by district failure to provide and that there is no credible calculation of compensatory hours needs. (Ex. I) The district made no claims based upon equities.

Cases Presented

Both parties presented documents for admission into evidence. A list of documents in the record is appended.

The district presented no testamentary evidence. The parent presented the testimony of: the School’s Program Coordinator (“the Coordinator”) and the student’s mother (“the parent”).

Findings of Fact and Conclusions of Law

1. Factual Findings

The following is established by uncontested, uncontroverted and credible testimonial and documentary evidence:

The student is currently in the 1^st grade. Her disability classification is Autism. (Ex. D) A Psychological Evaluation completed December 6, 2022 reported a cognitive age of 14 months, severe deficits with regard to social interaction and “severe” Autism range symptoms, communication in the “low” range, Daily Living Skills in the “low” range. Tantrums, lack of toileting skills and delays in coordination and balance, sensory avoidance, sensory seeking, stimming, flapping, rocking and poor eye contact were noted. (Exs. G, D) The student has limited communication skills with receptive and expressive language delays and is described as non-verbal with vocalizations appearing to be a demonstration of vocal play and self-stimulatory behaviors and an AAC device. (Ex. D) ABA is an effective methodology for this student. (Ex. G; T84)

In Kindergarten (2022-2023 SY) the student was working on prerequisite Math and ELA skills and required partial and full prompts for academics, to play with toys and for independent functional routine skills and did not display appropriate play with peers. She commenced utilization of an AAC system for communication at that time. Maladaptive behaviors displayed included crying, yelling and laying on the floor and kicking legs. (Ex. D)

The student was diagnosed with Autism in the early months of life, was referred for Early Intervention services and thereafter` received ABA and attended a public day care. (“Exs. J, K; T105) A New York State Early Intervention Program Individualized Family Service Plan with an effective start date of March 8, 2020 (effective end date September 7, 2020) provided a 1:1 aide at school with EI observation of the student and coaching to teachers, various related services and also provided 10 hours a week of at home ABA. (Ex. J) School services were discontinued and the student received no ABA services after the pandemic shutdown although some related services were provided. (T105)

A CPSE review was conducted in Summer 2020 and the student’s need for ABA was discussed. (T109, 112) The CPSE recommended a 6:1:3 program at the School for the 2020-2021 SY. (T112) The School’s preschool program utilized ABA in all content areas, including social-emotional issues. (T71-72) The student commenced attendance in the School’s preschool in September 2020. (T74, 125)

For the 2021-2022 SY, the CPSE recommended a 6:1:3 12 month program and again placed the student in the School’s pre-school. (Ex. A) The student progressed in the School. (T79)

The CSE convened for a Turning-5 review on May 25, 2022 and recommended for Kindergarten a 6:1:3 12 month program in a District 75 program. (Ex. I) The parent and the School disagreed with the recommendation and the failure to include ABA instruction and so informed the CSE. (Ex. A; T83) The IEP

On July 8, 2022, the parent filed a due process complaint concerning the recommended 2022-2023 Kindergarten program. (Exs, A, B, II)

Pendency at the School was requested by the parent and granted. (Ex. B)

The parent’s request for a independent Psychological Evaluation was rejected by the CSE on November 22, 2022. (Exs, A, H) The parent thereafter privately obtained a Psychological Evaluation which recommended an ABA program and at home ABA services and which was submitted to the CSE. (Exs. A, G, D)

The CSE convened on April 3, 2023 to develop a program for the 2023-2024 SY (1^st grade). The CSE recommended the same program as that it proposed for the student’s kindergarten year. (Exs. D, E) The parent and School staff disagreed with the recommendation and the failure to provide ABA instruction and the CSE was informed of disagreement. (Ex. A; T85) With regard to the possibility of compensatory services due to losses or lack of progress due blended and remote learning beginning March 2020, the CSE stated that “The student made expected progress toward IEP goals and did not experience loss in skills during blended and remote learning.” The parent considered district recommended placements, and concluded they not appropriate (Ex. A; T124)

On July 17, 2023, the parent filed the instant complaint, dated July 14, 2023. (Ex. A)

On July 18, 2023, the parent withdrew the 2022-2023 SY complaint without prejudice. (Ex. II)

Pendency at the School effective July 17, 2023 was thereafter ordered. (Ex. III)

The School is approved by the New York State Department of Education as a school with which a district may contract for the delivery of special education services (NPS) and serves students with developmental delays including Autism. (T73,77) It utilizes ABA in all content areas including social-emotional aspects, its teaching strategies are based on STAR and it utilizes an ABA curriculum (T71-72) Detailed lesson plans, appropriate teaching materials and curricula-based assessments in all areas as well as other assessments are provided, the program is aligned with the Common Core and programs are individualized. (T72, 94) Staff includes a full-time BCBA and a school psychologist. (T73) The School has approximately 50 students in its preschool/ elementary school. The student was in a class with 7 students of similar age, and 5 adults (a special education teacher, two certified teaching assistants and 2 paraprofessionals for other students.) (T79, 93, 95-96) Mandated related services are provided by appropriately licensed providers. (T89-91) Needs arising from the student’s use of an AAC device are addressed. (T98) Substantial PTAC is provided through workshops and individual sessions. (T91-92) Team meetings are frequent and routine. (T97-98) The student has progressed. (Ex. I; T84)

The Psychological Evaluation recommended at home ABA to enable consistency in educational strategies which would bolster that provided by the School, provide necessary structure and carryover and help the parents with the strategies and with which the School would collaborate. (Ex. G; T84, 85, 87)

1. CONCLUSIONS

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 (NYS Educ. Law § 4404(1)(c)).

1. District Provision of FAPE

The district has made no claim that it provided a FAPE and presented no evidence to establish that or contest parent claims. I conclude that, effectively, it conceded. Accordingly, it has failed to meet its burden to establish that it provided a FAPE for the 2023-2024 SY. .

1. Parent Requests Regarding Placement and At-Home Services

a) School

The claims made and the evidence presented by the parent concerning the student’s needs, which include the need for an ABA program, were credible, persuasive and uncontroverted by the district which presented no witnesses or relevant documentary evidence.

With regard to a determination as to the School’s appropriateness, I note that parentally selected programs are not required to meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2^nd Cir. 2006). It is not required that the provider of the services be State-approved, although the School at issue is, to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007). A finding of progress is not required for a determination that a student’s unilateral placement is adequate. Scarsdale Union Free Sch. Dist. V. R.C., 2013 WL 563322, at *9-*10 [S.D.N.Y. Feb. 4, 2013]; see also Frank G., 459 F. 3d at 364. However, a finding of progress is, nevertheless, a relevant factor to be considered. Gagliardo, 489 F.3d at 115. However, the program should be reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 (March 22, 2017). Although the restrictiveness of a parental placement may be considered as a factor in determining entitlement to an award of tuition reimbursement, parents are not as strictly held to the standard of placement in the LRE as are school districts. C.L. v. Scarsdale UFSD,744 F. 3d 826, 830, 836-37 (2d Cir. 2014); see Carter, 510 U.S. at 14-15; M.S., 231F.3d at 105 and “the totality of the circumstances” must be considered in determining the appropriateness of the unilateral placement, Frank G., 459 F. 3d at 64.

In this matter, the district did not contest or rebut the evidence presented by the parent concerning the School’s program, discussed above. I find no support for district claims alleging parental failure to demonstrate that the program provided by the School appropriately met the student’s needs. (Ex. I)

With regard to district claims based upon failure to demonstrate contractual obligation to pay and parental inability to do so in this matter, I note that the district has been responsible for paying for the School since July 17, 2023, pursuant to a pendency order. (Ex. III) When a student is receiving services pursuant to pendency, the district is obligated to deliver or fund those services and a parent is not required to show a financial obligation for services the district was required to fund. Therefore, the district will be directed to continue to fund the School through the 2023-2024 school year in the same manner as it has been funded during the pendency of this proceeding. Appeal No. 22-177. Based upon the foregoing, I find entitlement to district funding for the entirety of the school year upon evidence of student attendance notwithstanding the absence of evidence of contractual obligation.

b) At-Home Services

The parent seeks the following in after-school services of 12 hours per week consisting of: 5 hours a week of direct ABA/SETSS by a provider trained in ABA, 5 hours per week of ABA therapy by a BCBA and one indirect hour for each service to allow for collaboration and training to be provided at fair market rates. (Exs. A, II) The parent’s claim was asserted in the due process complaint and in the hearing. The district presented no evidence and has not rebutted evidence of substantial deficits. (Exs. D, H) Further, the district effectively has conceded that it failed to provide an appropriate program for this student. 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 (NYS Educ. Law § 4404(1)(c)). The parent has not asserted a reimbursement claim for the services requested. Therefore, the DOE has the burden of proof in this proceeding with regard to the parent’s program requests. Accordingly, I do not address the district’s claims of failure to demonstrate parental obligation.

I have concluded that the School is appropriate. However, that does not require a conclusion that additional services are not warranted in the circumstances of this case. Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105 (2d Cir. 2007); Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2^nd Cir. 2006). Credible uncontested evidence supports my conclusion that the services would enable the appropriate addressing of undisputed behavioral, adaptive functioning, ADL and academic needs and would reinforce and ensure consistency with the School program. Further, in view of the district’s uncontested failure here I conclude that it would be, inequitable to effectively reward the district for that failure. N.R. v. Dept. of Educ. of the City of New York, 2009 WL 874061 (S.D.N.Y. 2009) (citations omitted). I note that under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006); Appeal No. 08-052.

Accordingly, the requested ABA services will be provided. However, although the parent requested an “enhanced rate” of $200 per hour for each of those services was requested no evidence with regard to appropriate rate has been submitted. Accordingly, services at the market rate for the services is ordered.

1. Compensatory Services for Losses Due to Remote Learning

The parent claims denial of a FAPE arising from CSE failure to consider the student’s need for compensatory services as a consequence of pandemic conditions and that there was no basis for the CSE’s statement that “The student made expected progress toward IEP goals and did not experience loss in skills during blended and remote learning..” CSE consideration with regard to possible losses was required. (Exs. L. M, N) The district has presented no evidence in this matter and therefore has not controverted the parent’s claim.

The parent seeks 20 hours per week of compensatory 1:1 ABA services arising from the period March 8, 2020 through commencement of attendance at the School in September 2020. (Ex. II) The evidence shows that 10 hours of 1:1 home-based ABA and a class which utilized ABA techniques to some unspecified degree were to be provided pursuant to an Early Intervention Individual Family Services Plan (“EI Plan”). (Ex. J) ^[2] The district has not contested the parent’s credible testimony that the student received only certain related services in the March 2020-August 2020 period of the pandemic shutdown and received no ABA services. Further, the district has not contested entitlement to compensatory services for losses arising from EI special education mandated services. (Ex. I)

Compensatory education is a prospective award of educational services designed to catch-up the student to where he should have been if a FAPE had not been denied. Brennan v. Reg’l Sch. Dist. No. 1 Bd. of Educ., 531 F. Sup. 2d 245, 265 (D. Conn. 2007). It requires a flexible approach to determine the services and amount of services needed for remediation. Reid v. District of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005). See also Bd. of Educ. v. .L.M., 478 F.3d 307, 316 (6th Cir. 2007) )

With regard to compensatory education services the district has the burden of proof and persuasion. Appeal No. 11-091 n. 10. It is not sufficient for the district to simply criticize the remedy sought by the parent but rather it must provide credible evidence to support its own view of what is warranted. Appeal No. 11-091. See also Appeal No. 14-014. It is noteworthy that the district did not indicate the number of hours it believed would be appropriate in the event of a finding of a denial of FAPE, as has occurred.

However, the parent is not therefore entitled to all claimed. Relief must be commensurate and equitable. In the instant matter no evidence with regard to the class the student was to receive and the extent of ABA involvement in that class was been submitted and the parent has articulated no relief claim based upon that loss. Accordingly, I conclude that 10 hours per week of 1-1 ABA at the market rate for each week between March 8, 2020 and the date that provision of those services would have stopped if the pandemic had not occurred is ordered.

ORDER

It is hereby ordered that:

1. The district shall directly fund the student’s 12 month program at the School for the 2023-2024 SY.
2. The student shall receive authorizations from the district for the following after school services for the 2023-2024 SY at the market rate by qualified providers chosen by the parent :

5 hours per week of direct 1:1 SETSS by an ABA trained provider;

1 hour per week of indirect SETSS;

5 hours per week of ABA therapy by a BCBA;

1 hour per week of by a BCBA for collaboration between home and School.

1. The student shall receive authorizations from the district for 10 hours per week of 1:1 ABA from a qualified provider chose by the parent at market rate for the period March 8, 2020 through that date that provision of such services would have ended had the pandemic not occurred. The services must be utilized by June 30,, 2025 and utilization shall be at the sole determination of the parent.
2. The district may require evidence of provider qualification and delivery of services.

Dated: December 31, 2023

_________/s/_____________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

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.

Footnotes

[1] In the parent’s opening statement, the parent claimed district failure to provide a FAPE for the 2022-2023 SY and sought a determination with regard to that although the parent acknowledges that all relief requested for that school year has been received pursuant to pendency and seeks no relief for that school year pursuant to the instant complaint. That school year was the subject of Case No. 251775 which was withdrawn on July 18, 2023 (Ex. II) However, I have reconsidered my initial determination in response to the district’s objection to consideration of district provision of a FAPE for the 2022-2023 SY in the instant matter on the ground that it was beyond the scope of the instant complaint and find that it was district’s objection was meritorious. I therefore make no finding herein with regard to the district’s provision of a FAPE for the 2022-2023 SY.

[2] The parent’s relief claim of 20 hours of 1:1 ABA per week missed was, I conclude, based upon a misreading of the EI Plan.