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NYSED # 604812 - NYC # 252343
Findings of Fact and Decision
| Case Number: | 252343 |
| Student’s Name: | REDACTED |
| School District: | N.Y.C. Dept. of Ed |
| Impartial Hearing Officer: | Kevin T. McGrath |
| Date of Filing: | August 4, 2022 |
| Hearing Requested by: | REDACTED (Parent) |
| Date of Hearing: | October 6, 2023; October 20, 2023 |
| Record Close Date: | November 3, 2023 |
| Date of Decision: | November 3, 2023 |
Names and Titles of Persons Who Appeared on October 6, 2023:
For the Department of Education (DOE):
REDACTED, Esq. Agency Attorney
For the Student:
REDACTED, Esq., REDACTED
REDACTED, legal intern, REDACTED
REDACTED – Parent and Witness
Names and Titles of Persons Who Appeared on October 20, 2023:
For the Department of Education (DOE):
REDACTED, Esq. Agency Attorney
For the Student:
REDACTED, Esq., REDACTED
REDACTED, legal intern, REDACTED
REDACTED – Parent and Witness
INTRODUCTION
Parent filed a Due Process Complaint (DPC) on, or about, August 4, 2023. In the DPC, Parent alleges that the Department of Education (DOE) failed to offer Student[1] a free and appropriate public education (FAPE) for the 2023-2024 school year.[2]
Parent seeks an award ordering that Student be placed at, and the DOE fund the tuition at, Private School, a private program not approved by the Commissioner of Education for the education of students with disabilities, for the 2023-2024 school year. The DPC asserts the DOE failed to provide Student with a FAPE for the 2023-2024 school year when its Committee on Special Education (CSE) failed to: (1) provide an appropriate program for Student; (2) allow Parent to participate in the development of Student’s educational program meaningfully; (3) comprehensively evaluate Student; (4) to develop appropriate present levels of performance on Student’s IEP; (5) appropriately implement Student’s IEP; (6) provide appropriate related services to Student; and (7) address Student’s behavioral needs.[3] The DPC requests the reimbursement and direct tuition funding at Private School for the 2023-2024 school year and an award of 10 hours per week of home-based Applied Behavior Analysis (ABA) therapy.[4]
As detailed below, I hold the following: (a) concerning the 2023-2024 school year, the DOE made substantive violations in the provision of services, which sufficiently establish a denial of FAPE; (b) Private School is an appropriate placement for Student; (c) the equities in the action favor Parent; and (d) Parent’s request for home-based ABA therapy is GRANTED.
PROCEDURAL HISTORY
I was appointed as the Impartial Hearing Officer on August 7, 2023. The DOE did not hold a resolution meeting or file a due process response concerning this action. A Prehearing Conference was held on September 7, 2023 and a Prehearing Conference Summary and Order was issued the same day.[5] The DOE consented to the issue of pendency, and a “Pendency Form” was “so ordered” on September 15, 2023 that continues Student’s services of 10 hours per week of home-based ABA therapy services until the conclusion of this action.[6]
A merits hearing was held on October 6, 2023. At the hearing, DOE Representative refused to articulate if the DOE conceded they failed to provide a FAPE to Student.[7] The DOE did not produce any exhibits or present testimony evidence. Also, at the hearing, Parent’s Representative presented 13 exhibits, all admitted into the record over the objection of DOE Representative.[8] Parent appeared at the hearing to provide testimony on Student's behalf.
The merits hearing continued on October 20, 2023 where Private School Representative appeared to provide testimony on Student’s behalf. The parties then presented closing arguments in the action.
FINDINGS OF FACT
After thoroughly reviewing the record, I make the following findings of fact and determinations.
Student was REDACTED years old at the start of the 2023-2024 school year and is currently placed at Private School. Student’s eligibility for special education supports and services is not disputed based on the CSE designation and uncontested finding that Student presents with “Autism.”[9] Student has also been diagnosed with: Autism Spectrum Disorder (ASD) with accompanying language impairments (social communication, level 2)(repetitive behavior, level 2); mild hypotonic cerebral Palsy; language disorder; attention deficit hyperactivity disorder (ADHD)(combined type); and specific learning disorders in reading, written expression, and in mathematics.[10]
While in preschool, Student received services from the Committee for Preschool Special Education (CPSE). However, Parent disagreed with the services being offered Student and filed an action to challenge the prior IEP and offered services. During the prior action, Student underwent a Neuropsychological Evaluation, dated May 1, 2023;[11] a Functional Behavior Assessment and Behavior Intervention Plan, dated May 3, 2023;[12] Assistive Technology Evaluation, dated March 2, 2023;[13] Speech and Language Evaluation, dated March 2, 2023;[14] Occupational Therapy Evaluation, dated March 21, 2023;[15] and a Physical Therapy Evaluation, dated April 4, 2023.[16] On May 22, 2023 a decision was issued in the prior action (May FOFD), which in part ordered the DOE to hold a new IEP meeting within 30 days.
Evaluation Results
The evaluations conducted between March and April 2023 provide insight into Student's special education needs and whether Private School can provide an appropriate education setting.
Student faces special education challenges from the diagnosis of ASD and cerebral palsy and low muscle tone. They were assessed as possessing an average range of general cognitive ability; and scored a “very low range” for academic achievements (8th percentile), reading (18th percentile), writing (12th percentile), and mathematics (9th percentile).[17] Student exhibited overall academic difficulties in all areas; could not read any words; could only read some letters; could count pictures of objects, but not above to write numbers on command or categorize numbers.[18] Further, Student exhibits significant difficulties with inattentive and hyperactive behavior, so they were frequently easily distracted, had difficulty paying attention to directions, and would stray from tasks.[19] The Speech and Language Evaluations revealed that Student’s articulation skills were significantly below average; Student had deficits with picture sequencing skills and narrative generation skills; testing of Student’s reception and expressive language skills was discontinued due to significant literacy delays.[20] Occupational and Physical Therapy Evaluations indicated that Student has low muscle tone throughout his trunk and extremities; had difficulty completing many of the occupational therapy test tasks; had deficits in all areas of gross motor, function, including posture, ambulation, balance, coordination, strength, and endurance; and the deficit makes Student more of a risk for falling, decreases his overall level of safety in school and limits Student’s ability to access extracurricular activities designed for children with special needs.[21] The Functional Behavior Assessment documents Student having trouble expressing themselves and becoming upset when attempting to communicate their emotions; requiring constant one-on-one attention to ensure Student remains on task.[22]
The various evaluations recommended, in relevant parts, Student: (1) be placed in a small, highly structured, and self-contained classroom environment (with a low student-to-teacher ratio and other students who are of at least average cognitive ability;[23] (2) placement in a 12-month, “year-round” program to prevent regression of skills;[24] (3) 10 hours per week of home-based and 20 hours of in-school ABA support;[25] (4) Parent counseling;[26] (5) counseling services twice a week;[27] 6) transportation services with supervision of a bus matron;[28] (7) receive 30-minutes of occupational therapy session three times per week (with two sessions in a group setting and one in an individual basis);[29] (8) 30 minutes of speech-language therapy sessions four times per week (with at least one session being in a group setting);[30] (9) sessions with a P.R.O.M.P.T. trained therapist;[31] and (10) 30-minutes sessions of physical therapy twice per week (provided in an individual basis).[32]
2023-2024 School Year
Following the May FOFD, the CSE did not convene to create a 2023-2024 school year IEP for Student.[33] Furthermore, the DOE did not provide Student with a school location recommendation for the 2023-2024 school year.[34] On August 18, 2023, Parent’s sent a Ten-Day Notice (TDN) detailing their concerns about the DOE's failures to conduct an IEP meeting, lack of a school location recommendation; and Parent’s intent to unilaterally place Student at Private School while intending to seek payment from the DOE for the cost of tuition and other related services.[35] Student started attending Private School on September 7, 2023.[36]
Private School
Private School Representative testified to the curriculum and Student’s progress at Private School. Private School Representative is the “Director of Education” at Private School.[37] They possess a master’s degree in Applied Behavior Analysis, and New York State certifications and licenses as a Board Certified Behavior Analyst (BCBA), Licensed Behavior Analysis (LBA), and teaching early childhood education and students with disabilities.[38] Private School Representative’s responsibilities include oversight of assessment, goals, and program development; conducting FBA evaluations; developing BIP for students; overseeing the management of classrooms; training staff; and communicating with parents.[39]
The Private School focuses on teaching students between the ages of four and eighteen with ASD and related disabilities that require a highly individualized program of ABA.[40] The school utilizes ABA methodology and an academic curriculum in all content areas, and ABA programming and practice are supervised by a full-time, on-site Board-Certified Behavior Analyst (BCBA).[41]
Private School Representative is familiar with Student’s special education needs from their involvement in Student’s enrolment; speaking with Parent; collaborating with Student’s teachers and service providers; and reviewing the school records for Student.[42] Student is currently placed in a class of seven (7) students with one (1) “lead teacher,” one “head ABA instructor,” and five (5) ABA instructors.[43] Student receives 5 hours of 1:1 individual instruction utilizing ABA and one hour of 2:1 supervision during lunch and leisure skills.[44] Student also received occupational therapy services with two 30-minute weekly sessions (in a 1:1 setting); one 30-minute weekly session (in a group setting), and one 30-minute weekly lunch consultation by an occupational therapist.[45] Speech-language therapy services include one 30-minute weekly session (in a group setting); three 30-minute weekly sessions (in a 1:1 setting); and one 30-minute weekly lunch consultation with a speech-language therapist.[46] The classroom lead teacher has a master’s degree in Professional Behavior Analysis (also a BCBA), holds a master’s degree in Applied Behavior Analysis, and the ABA instructors have bachelor’s degrees.[47]
Private School Representative believes that Private School can meet Student’s academic, communication, social, self-management, and behavioral needs.[48] Parent has observed Student progress at Private School and testified that Student is happy to go to school; can count to 16; has an increased level of patience; has increased their ability to express themselves; has decreased the frequency of tantrums; and has improved their reading ability.[49]
Credibility
I determine the following upon considering the evidence, including all admitted documents and witness testimony. In accepting the documents, I found them all relevant and represent the facts for which they were offered. The weight I afforded them will be reflected in the analysis. As for the witnesses, I found no reason to doubt the statement’s veracity or the relevant opinion's earnestness, and therefore, I find all the witnesses and their testimonies credible. The relative weight I afford them will likewise be reflected in the analysis.
CONCLUSIONS OF LAW AND ANALYSIS
I hold that the DOE made procedural and substantive violations, which sufficiently establish a denial of FAPE for Student; Private School was an appropriate placement for Student; and the equities in the action favor Parent. I further hold that Parent’s request for 10 hours per week of ABA services is GRANTED.
A district must pay for the cost of a student’s tuition at a private school if the three prongs of the Burlington/Carter test are satisfied: (1) the DOE denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition.[50] In New York, 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 a 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.[51]
A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.[52] When the local education district complies with the procedural requirements outlined in the IDEA, and when the IEP developed through those procedures is reasonably calculated to enable the student to receive educational benefits, a FAPE has been established.[53] To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[54] The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.”[55]
Prong I
As detailed herein, the DOE did not establish under Prong I that FAPE was provided to Student for the 2023-2024 school year.
DOE Representative refused to provide a position on whether the DOE provided Student a FAPE by claiming they did not complete their “investigation.”[56] Regardless of the position that “their investigation was not completed,” a hearing was duly scheduled in compliance with the IDEA, and the DOE retains the legal burden of persuasion and production to demonstrate that Student received a FAPE. As such, the unwillingness to articulate a position on the provision of FAPE was inappropriate. The DOE failed to present any witness testimony or documentary evidence.
The record supports the conclusion that the DOE failed to offer Student an educational program reasonably calculated to offer FAPE for the 2023-2024 school year. The DOE denied Student a FAPE for the 2023-2024 school year because (a) they did not create an IEP for Student, and (b) they did not provide a school placement location.
The DOE fails to demonstrate a current IEP was created for Student. Second Circuit has clearly held that school districts “must only ensure that a child's IEP is in effect by the beginning of the school year and that the parents are provided a copy."[57] The last IEP created for Student was challenged in the May FOFD. Despite the directions in the May FOFD for the CSE to reconvene and consider the updated evaluations, there was no IEP created. Accordingly, I hold that the absence of an IEP for the 2023-2024 school year constitutes a denial of FAPE.
Furthermore, the absence of a school placement location further demonstrates a denial of FAPE. Under the IDEA, the local education agency must provide the "frequency, location, and duration" of the "services" to be provided.[58] Despite the reference to "location" in Section 300.320(a)(7), the Second Circuit has held that it is not a per se procedural violation for the IEP to omit the name of the specific school, with such information to follow.[59] Still, the school designation cannot come so late that it impedes the parents' ability to participate meaningfully in the school selection process.[60] For instance, a procedural violation occurred where the equivalent of a school location letter was sent "on June 15 for a school year beginning on July 6,”[61] "on June 18 for a school year beginning on July 5,"[62] and on “June 18 for a school year beginning on July 2.”[63] “[T]he crux of the right to meaningfully participate in the school selection process is the right to ‘evaluate the school assignment,’ i.e., the right to acquire relevant and timely information as to the proposed school.”[64]
In this action, Parent is correct that the combination of DOE's actions impeded their rights. The DOE did not timely provide a school placement letter for the 2023-2024 school year. The DOE has not presented any evidence or testimony to dispute these allegations. Particularly salient here, as in the F.B. case, was the need for Parent to identify and evaluate the particular classroom, teacher, and resources that would be provided to Student.[65] In sum, "the IEP could not be meaningfully evaluated independent of the proposed placement's ability to implement it."[66] In failing to provide a school placement letter or to provide Parent with information about the actual classroom and curriculum to which Student would be assigned, the DOE impeded Parent’s ability to participate meaningfully in the school selection process.
The U.S. Court of Appeals, Second Circuit, has held that a parent can challenge the placement location if the placement school is "facially deficient" and "cannot satisfy the IEP's requirements."[67] Accordingly, the absence of a placement location demonstrates that the DOE failed to provide a location with space for Student that could appropriately meet Student’s individual special education needs.
I hold that taken together, a) the failure to create an IEP for the 2023-2024 school year, and b) the failure to provide a school placement letter demonstrates Student was denied a FAPE for the 2023-2024 school year.
Prong II
As detailed herein, Parent sufficiently established that Private School was a proper placement for Student.
A private school placement must be “proper under the Act.”[68] This means the Private School must offer an educational program that meets students’ special education needs.[69] A parent seeking tuition reimbursement “bears the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”[70] When determining whether a unilateral placement is appropriate, the issue turns to whether the placement is “reasonably calculated to enable the child to receive educational benefits.”[71] A private placement is appropriate if it provides instruction designed to meet a student’s unique needs.[72] A parent needs only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a student with a disability, supported by such services as are necessary to permit the child to benefit from instruction.[73]
Taken as a whole, the testimony and documentary evidence show the Private School meets the Frank G. standard and “provides educational instruction specially designed to meet the unique needs” of Student that will enable them to make progress. The evidence demonstrates Private School is an appropriate placement because it: (1) specialize in serving students with difficulties similar to Student’s special education needs[74] and it has hired teachers specially trained to do so;[75] (2) provides Student with a student-to-teacher ratio of no more than five students, one lead teacher, one head ABA instructor and 5 ABA instructors;[76] (3) individualizes instruction for Student in education instruction;[77] and (4) Private School Representative has the professional opinion that Student can make progress at Private School.[78]
The Private School provides services in compliance with the needs of Student. Specifically, Parent has demonstrated that Student is making educational progress.[79] Further, DOE Representative’s cross-examination did not establish any evidence to dispute the claims Student was making progress.
As a result of the above, I hold that Parent has met their burden in proving that Private School offered an educational program that met Student’s needs under Prong II of the Burlington/Carter standard.
Prong III
As detailed herein, the equities favor Parent regarding the unilateral placement of Student at Private School.
Under the third Burlington/Carter prong, courts consider “equitable factors” relevant to an order of tuition.[80] “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [DOE] throughout the process to ensure their child receive[s] a FAPE.”[81] Specifically, equitable considerations include a parent’s participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the DOE.[82]
Parent has previously been involved in creating Students’ prior IEP in this matter. They cooperated with the creation of various evaluations between March and May 2023.[83] Parent provided timely “Ten-Day Notice” of their concerns with the DOE’s failure to offer Student a FAPE for the 2023-2024 school year.[84] Parent detailed specific concerns regarding Student’s special education in the “Ten-Day Notice.”[85] Furthermore, Parent notified the DOE of their intention to unilaterally place Student at Private School.[86]
Parent seeks reimbursement for Private School’s tuition costs. This is an available remedy under the IDEA[87] and permitted without showing a financial hardship.[88] Parent signed a contract with Private School for the 2023-2024 school year.[89] Parent remains liable for all tuition if a claim under IDEA were unsuccessful.[90] I find no issue with the reasonableness of the costs associated with Private School, including tuition. Moreover, I find that the weight of the evidence establishes that Parent cooperated with the DOE.[91]
Overall, and after considering the record, I hold that the equities sufficiently support Parent’s request for tuition funding and order the DOE to fully fund Student’s tuition to Private School for the 2023-2024 school year.
Home-Based ABA Services
Parent further seeks an award of 10 hours of home-based ABA services, which is a continuation of the May FOFD and recommendations contained in the Neuropsychologist report, from May 1, 2023. In this action, the award of home-based ABA services is appropriate as both compensatory education and due to the denial of FAPE.
Award as denial of FAPE
The IDEA defines a FAPE as inclusive of "special education and related services,"[92] and the term "related services" includes services that "may be required to assist a child with a disability to benefit from special education.,[93] Thus, both educational placement and additional services may be necessary to provide a particular student with a FAPE. The award of tuition reimbursement, in this case, does not necessarily mean that additional services, such as home-based ABA, are inappropriate.[94] As detailed above, the DOE failed to provide Student a FAPE due to the failure to create any IEP for Student for the 2023-2024 school year, convene an IEP meeting following the May FOFD, and failure to offer a school placement location. Thus, at issue is whether ABA home-based services are appropriate “related services” this child requires to benefit from special education. I hold that the home-based related services are appropriate due to the denial of FAPE.
The evidence supports an award for ABA home-based related services for Student. The findings of the Neuropsychological evaluation unequivocally recommend ABA therapy, including home-based support services.[95] Additionally, the Functional Behavior Assessment evaluation recommends Student receive ABA therapy. A BCBA authored this evaluation[96] and recommended that ABA therapy be provided in “all relevant settings, not just at school, to ensure that [Student] can learn, demonstrate his skills and fully participate in all environments.”[97] Private School Representative is also a BCBA who is qualified to provide professional opinions regarding ABA services and Student’s need for this type of therapy.[98] Private School Representative explained that home-based therapy is useful “given the challenges that [Student] has demonstrated at home” and Student needs to be taught “outside the scope of the school day.”[99] The home-based services would reinforce what was learned during the day and help prepare Student for classes.[100]
Accordingly, the award of home-based ABA therapy is an appropriate related service required based on the denial of FAPE for the 2023-2024 school year.
An award as compensatory education
Even if the denial of FAPE did not support an award of home-based ABA therapy, Student should still receive the services as an award of compensatory education. Compensatory education is an equitable remedy, so principles of equity and fairness come into play and may impact whether compensatory education is awarded or the award amount.[101] Furthermore, a request for compensatory relief may be denied if there is an insufficient causal link in the record between any deprivation and the student’s current deficits.[102] A hearing officer may award compensatory education relief through supplemental special education or related services when there has been a denial of a FAPE.[103] 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 by providing additional services before the student becomes ineligible for instruction because of age or graduation. An award of additional services should aim to place a student in the position they would have been in had the district complied with its obligations under the IDEA.[104]
The DOE has the burden of proof on the issue of compensatory education.[105] Parent requested that the DOE be directed to provide compensatory education services to Student. Thus, it is the DOE, not Parent, which had the burden of proof on the contested issues in the impartial hearing.[106] As noted above, the DOE did not offer any documents or testimony regarding the education abilities and needs of Student. The DOE did not show what services were previously provided Student or present a cogent explanation that Student was provided a FAPE. As such, I find that the DOE failed to meet its burden regarding the issue of compensatory education.
However, just because the DOE does not submit a case does not mean a parent is necessarily entitled to their entire requested compensatory remedy. Although "the [parent] has the burden of proposing a well-articulated plan that reflects the student's current education abilities and needs and is supported by the record, . . . a [parent] [need not] have a perfect case to be entitled to a compensatory education award.[107] In this action, the record supports an award of 10 hours a week of home-based compensatory services. The Neuropsychologist Report, Functional Behavior Assessment evaluation, and Private School Representative clearly opinion that Student requires home-based ABA therapy and Student has been denied a proper educational placement in the past school years. Accordingly, based on these recommendations and to compensate for the lack of any services, or IEP, being offered by the CSE, an award of home-based ABA therapy is an appropriate compensatory education award.
DOE Representative raised meritless objections to an award for ABA home-based services. Their objection focuses on 1) Parent not showing a contractual obligation was entered into for the services or provide the identify who will provide the services, and 2) Parent failing to present evidence from a qualified professional to support a need for home-based services.[108] Firstly, since Parent is not seeking reimbursement for past services, but rather an award to be used in the current school year, Parent is not required to demonstrate they have entered into a contract or identify what provider will be used for the services. Secondly, there is sufficient evidence to support the appropriateness of home-based ABA therapy for Student. The DOE does not provide any legal or other authoritative basis to claim that the author of the Neuropsychological evaluation was unable to render an opinion.[109] DOE Representative did not seek in their case in chief to present evidence to contradict the offered reports. While DOE Representative challenged the admissibility of the reports, they did not seek to subpoena the witnesses or present their own witnesses who have evaluated Student.[110] As noted above, as a licensed pediatric neuropsychologist, the report's author is qualified to provide professional opinions. Further, two BCBA’s testified (Private School Representative and the author of the Functional Behavior Assessment evaluation) about the goals and benefits of home-based ABA therapy. Therefore, sufficient evidence was presented to demonstrate how home-based ABA therapy would assist in compensating for the prior denial of educational services.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
(1) The DOE denied Student a FAPE for the 2023-2024 school year, and
(2) Parent’s claim for tuition reimbursement and direct funding for Student’s unilateral placement at Private School is GRANTED for the 2023-2024 school year. The DOE shall reimburse Parent for any out-of-pocket expenses for tuition at Private School. Student’s tuition at the Private School for the 2023-2024 school year is not to exceed a combined total of $151,900.00 within 30 days of receipt of the invoice from Private School or Parent; and
(3) Parent’s request for transportation costs of Student between Student’s home and Private School, at the DOE’s expense, for the 2023-2024 school year is GRANTED; and
(4) Parent’s request for home-based ABA services is GRANTED. The DOE shall fund 10 hours per week of one-to-one ABA instruction. Payment is to be made at the provider’s market rate within 35 days of the DOE’s receipt of the respective provider’s invoice. Any services unused in a particular week, for any reason, shall be forfeited. Such services:
a. shall expire at the end of the 2023-2024 school year; and
b. may be provided in person or remotely; and
c. must be provided by an individual holding a New York State license or certification in the respective areas.
So Ordered.
Kevin T. McGrath
Kevin T. McGrath, Esq. (signed electronically)
Impartial Hearing Officer
Dated: November 3, 2023
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the Parents 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 Information | Term Used In FOFD |
| REDACTED | Student |
| REDACTED | Date of Birth |
| REDACTED | Student’s I.D. Number (OSIS) |
| REDACTED | Parent |
| REDACTED | DOE Representative |
| REDACTED | Parent’s Representative |
| REDACTED | Private School |
| REDACTED | Private School Representative |
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
District Exhibits
| Exhibit | Title | Date | Pages |
| NONE |
Parent’s Exhibits
| Exhibit | Title | Date | Pages |
| A | Parent’s Due Process Complaint | 08/04/2023 | 6 |
| B | FOFD #245491 | 05/22/2023 | 14 |
| C | REDACTED Program Offerings | 23/24 | 8 |
| D | REDACTED Contract | 23/24 | 5 |
| E | REDACTED Class Schedule | 23/24 | 1 |
| F | REDACTED Tuition Affidavit | 09/14/2023 | 1 |
| G | Ten Day Notice | 08/18/2023 | 1 |
| H | Independent Assistive Technology Evaluation | 03/02/2023 | 8 |
| I | Independent Speech Therapy Evaluation | 03/02/2023 | 17 |
| J | Independent Occupational Therapy Evaluation | 03/21/2023 | 13 |
| K | Independent Physical Therapy Evaluation | 04/04/2023 | 14 |
| L | Intendent Neuropsychological Evaluation | 05/01/2023 | 26 |
| M | Independent Functional Behavior Assessment | 05/01/2023 | 15 |
| N | Affidavit of REDACTED | Undated | 4 |
| O | Affidavit of REDACTED | 10/17/2023 | 8 |
IHO Exhibits
| Exhibit | Title | Date | Pages |
| I | Prehearing Conference Summary and Order | 06/26/2023 | 4 |
| II | Pendency Order | 09/15/2023 | 2 |
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed before public distribution.
[2] Ex. A.
[3] Id.
[4] Parent’s Representative withdrew their request for compensatory education beyond the 10 hours of home-based ABA at the Due Process Hearing. Tr. 35-36.
[5] IHO Ex. I.
[6] IHO Ex. II.
[7] Tr. 39-41.
[8] Tr. 24-34. The DOE objected to exhibits B, H, I, J, K, L, M, and N. The ruling for admission into the evidence was discussed during the hearing.
[9] Id.
[10] Ex. L at pg 16.
[11] Ex. L.
[12] Ex. M.
[13] Ex. H.
[14] Ex. I.
[15] Ex. J.
[16] Ex. K.
[17] Ex. J.
[18] Ex. J.
[19] Ex. J.
[20] Ex. I.
[21] Ex. J and K.
[22] Ex. M.
[23] Ex. L at pg 16-17; Ex. M at pg 12-13.
[24] Ex. L at pg 17.
[25] Ex. L at pg17-18; Ex. M at pg 14.
[26] Ex. L at pg 18; Ex. M at pg 14.
[27] Ex. L at pg 18.
[28] Id.
[29] Ex. J at pg 12.
[30] Ex. I at pg 15-16.
[31] Ex. H at pg 7.
[32] Ex. K at pg12-13.
[33] Ex. N at ¶7-8. These allegations, opinions, and statements claimed by Parent #1 were contained in the DPC and repeated during Parent’s testimony. The DOE failed to present any witnesses to challenge the veracity of the allegations, either in the case-in-chief or rebuttal. Accordingly, while the allegations are hearsay, they will be strongly weighted in favor of being accurate.
[34] Id. at ¶13. These allegations, opinions, and statements claimed by Parent #1 were contained in the DPC and repeated during Parent’s testimony. The DOE failed to present any witnesses to challenge the veracity of the allegations, either in the case-in-chief or rebuttal. Accordingly, while the allegations are hearsay, they will be strongly weighted in favor of being accurate.
[35] Id.; Ex. G.
[36] Ex. N at ¶9-11 and ¶14.
[37] Ex. O at ¶4.
[38] Id. at ¶1-3.
[39] Id. at ¶5.
[40] Id. at ¶8-9.
[41] Id. at ¶9-10.
[42] Id. at ¶15-18.
[43] Id. at ¶19.
[44] Id. at ¶22.
[45] Id. at ¶30.
[46] Id. at ¶31.
[47] Id. at ¶23-25.
[48] Id. at ¶32; Ex. C.
[49] Ex. N at ¶14-18.
[50] See Sch. Comm. of Burlington v. Dept. of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7, 12-15 (1993).
[51] NY Educ. Law § 4404(1)(c).
[52] See 34 C.F.R. § 300.13.
[53] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 US 176, 206-207 (1982).
[54] Endrew F. v. Douglas County Sch. Dist. RE-1, 580 US 386 (2017).
[55] 20 U.S.C. § 1415(b)(6)(A).
[56] Tr. 39-41.
[57] E.L. v Bdford Cent. Sch. Dist., 2022 US Dist LEXIS 153538, at *43-44 (SDNY Aug. 25, 2022) citing Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 193 (2d Cir. 2015) (finding a school district "fulfilled its legal obligations by providing the IEP before the first day of school"); see 34 C.F.R. § 300.342(a) ("At the beginning of each school year, each public agency shall have an IEP in effect for each child with a disability within its jurisdiction.").
[58] 34 C.F.R. § 300.320(a)(7).
[59] V.A. v City of NY, 2022 US Dist LEXIS 84556, at 14-15 (EDNY 2022); T.Y. ex rel. T.Y. v. NYC Dept. of Educ., 584 F.3d 412, 419-20 (2d Cir. 2009); C.F., 746 F.3d at 79.
[60] S.Y. v. N.Y.C. Dept. of Educ., 210 F. Supp. 3d 556, 574-75 (SDNY 2016).
[61] Id., citing FB v. N.Y. City Dept. of Educ., 132 F. Supp. 3d 522, 541-43 (SDNY 2015).
[62] Id.
[63] Id.
[64] FB v. NYC Dept. of Educ., 132 F. Supp. 3d at 541-42, quoting V.S. ex rel. D.S. v. N.Y. C. Dept. of Educ., 25 F. Supp. 3d 295, 299 (EDNY 2014); S.Y. v NYC Dept. of Educ., 210 F Supp 3d at 573-575.
[65] FB v. NYC Dept. of Educ., 132 F. Supp. 3d at 541 (Finding that the information sought by parents was directly relevant to their ability to assess the proposed placement and its capacity to implement the IEP).
[66] Id. at 544.
[67] M.O. v. N.Y.C. Dept. of Educ., 793 F.3d 236, 244 (2d Cir 2015); see also E.B. v NY City Dept. of Educ., 2016 US Dist LEXIS 90311, at 17 (SDNY 2016).
[68] Carter, 510 US at 12, 15; Burlington, 471 US at 370.
[69] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F3d 105, 112, 115 (2d Cir. 2007); Walczak, 142 F3d at 129 (2d Cir. 1998).
[70] Gagliardo, 489 F3d at 112 (“Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.”; Frank G. v. Bd. of Educ. of Hyde Park, 459 F3d 356, 364 (2d Cir. 2006).
[71] Frank G., 459 F3d at 364; see Gagliardo, 489 F3d at 115.
[72] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 C.F.R. § 300.39(a)(1); 8 NYCRR § 200.1(ww); Hardison v. Bd. Of Educ. Of the Oneonta City Sch. Dist., 773 F3d 372, 386 (2d Cir. 2014).
[73] Gagliardo, 489 F3d at 112, citing Frank G., 459 F3d at 364-65.
[74] Ex. O at ¶9-12.
[75] Ex. O at ¶23-31.
[76] Id. at ¶19.
[77] Id. at ¶27-29.
[78] Id. at ¶32.
[79] Ex. N at ¶14-18.
[80] Gagliardo, 489 F3d at 112.
[81] Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at 6 (SDNY Nov. 20, 2007).
[82] See D.A. v. New York City Dept. of Educ., 769 F Supp 2d 403, 419-20 (SDNY 2011).
[83] See Ex. H to M.
[84] Ex. G.
[85] Id.
[86] Id.
[87] See Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F Supp 2d 403, 406 (SDNY 2011) (Parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”).
[88] See Cohen v. N.Y. City Dept of Educ, 2023 U.S. Dist. LEXIS 171815 (SDNY Sept. 26, 2023).(“Plaintiffs were not required to establish financial hardship to seek direct retrospective payment—after the district failed to provide M.C. with a FAPE for the 2018-2019 school year—because such a burden would contradict the IDEA's core purpose of "ensur[ing] that all children with disabilities have available to them a free appropriate public education[.]" 20 U.S.C. § 1400(d)(1)(A). To require parents to fund their children's education in the first instance, unless they demonstrate an inability to pay—as the SRO did here—skews the equities underlying the IDEA and cases applying that law. Direct payment to the school simply requires the DOE to belatedly fund expenses that it was obligated to pay all along. E.M., 758 F.3d at 453. Thus, where, as here, a private school is willing to enroll the student and the risk that it will take years to obtain payment, parents who satisfy the Burlington factors have a right to retroactive direct tuition payment. See Mr. & Mrs. A., 769 F Supp 2d at 428.”)
[89] Ex. D; Ex. N at ¶11-12.
[90] Ex. D; Ex. N at ¶11-12.
[91] See M.H. v. N.Y.C. Dept. of Educ., 685 F3d 217, 254 (2d Cir. 2012); see also C.F. ex rel. R.F. v. N.Y.C. Dept. of Educ., 746 F3d 68, 82 (2d Cir. 2014).
[92] 20 U.S.C. § 1401(9) (emphasis added).
[93] VW v. New York City Dept of Educ, 2022 U.S. Dist. LEXIS 147630, *16, (SDNY 2022), citing 20 U.S.C. § 1401(26)(A); see also Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 453 (2d Cir 2015).
[94] VW v. New York City Dept of Educ, 2022 U.S. Dist. LEXIS 147630, *16.
[95] Ex. L at pg 17-18.
[96] As a licensed BCBA, I find that the author has sufficient training and experience to render professional opinions regarding the need and type of ABA services Student requires.
[97] Ex. M at pg 12-13.
[98] DOE Representative’s objection to Private School Representative’s testimony on home-based services is not persuasive. Tr. at 97-101. Even though the witness had limited information about the services provided at home, the witness is familiar with Student’s present condition and special education needs. The witness did not comment on a specific service provider, but rather the overall aim and intent of home-based ABA therapy. The witness is competent to provide an opinion on the benefits and impact of home-based therapy.
[99] Tr. 87-89.
[100] Id.
[101] See, e.g., Garcia v. Bd. of Educ. of Albuquerque Pub. Schs., 49 IDELR 241 (10th Cir. 2008); Application of Student with a Disability, Appeal No. 21-244.
[102] See, e.g., Phillips v. Dist. Of Columbia, 932 F Supp 2d 42 (D.C. Cir. 2013) (upholding denial where student received a similar level of comparable services during the period of deprivation and there was support in the record for IHO’s conclusion that the student’s current difficulties do not stem from the FAPE denial); T.B. v. Prince George's Cty. Bd. of Educ., 897 F3d 566 (4th Cir. 2018) (parents failed to prove a loss of educational benefits where teachers showed that when student attended class he performed well and completed assignments); Somberg v. Utica Cmty. Schs., 908 F3d 162 (6th Cir. 2018) (holding that Endrew F. standard is not applicable to determination of compensatory education and it is appropriate to consider any advancement made by the student in crafting an award, regardless of the substantive appropriateness of the IEP); Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F3d 1489 (9th Cir. 1994) (denying compensatory education where the student was able to graduate with his class and the parents had declined the district’s offer of extra services).
[103] See P. v. Newington Bd. of Educ., 546 F3d 111, 123 (2d Cir. 2008).
[104] Id.
[105] See M.M. v. New York City Dept. of Educ., 2017 WL 1194685, 4 (SDNY 2017); Doe v. East Lyme Bd. of Educ., 790 F3d 440, 457 (2d Cir. 2015); Reid ex rel. Reid v. Dist. of Columbia, 401 F3d 516, 524 (DC Ct of App 2005); Application of Student with a Disability, Appeal No. 21-169.
[106] See Application of Student with a Disability, Appeal No.14-179. DOE Representative incorrectly argued that the award of ABA services should be denied because Parent did not show a “necessity” for the service. Tr. 100-102.
[107] M.T. v. Arlington Cent. Sch. Dist., 2022 U.S. Dist. LEXIS 205272, *21-22 (SDNY 2022).
[108] Tr. 96-101.
[109] Tr. 100.
[110] DOE Representative’s objection to the admission of the documents and insistence that Parent should have called the authors does not relieve the DOE of its burden in the action. Tr. 27-33 and 99-100. Parent’s Representative presented probative and relevant documents with evaluative data on Student. Testimony foundation from the author is not required for admission into evidence at this administrative proceeding, as claimed by DOE Representative. Accordingly, DOE Representative’s focus should have been on demonstrating the strength of their case, supporting the actions of the DOE or calling the author as a DOE witness, instead of complaining Parent’s Representative should have done more and presented more evidence.