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CASE NUMBER: 615612 - NYC: 262498
FINDINGS OF FACT AND DECISION - AMENDED
Case Number: 262498
Student’s Name [1]: REDACTED (“Student”)
Date of Birth: REDACTED
School District: REDACTED
Hearing Requested by: REDACTED (“Parent”)
Request Date/Date Complaint Filed: 09/22/2023
Date(s) of Hearing: 12/04/2023
Actual Record Closed Date: 12/07/2023
Date of Decision: 12/08/2023 (amended 12/11/2023) Time Sensitive Yes Hearing Officer: Melanie L. Bota, Esq.
Names and Titles of Persons Who Appeared on December 4, 2023
For the Student:
REDACTED, Esq., The Law Offices of REDACTED, Parent’s Counsel REDACTED, Witness REDACTED, Witness REDACTED, Witness REDACTED, Parent/Witness
For the New York City Department of Education REDACTED, Esq., District Representative
BACKGROUND
The Student is a REDACTED year-old child who is classified as a student with “Autism” by the New York City Department of Education District (“DOE” or “District”) under the Individuals with Disabilities Act (“IDEA”). The Student’s eligibility for special education supports and services is not in dispute. The Student attended the Private School for the 2023-24 school year. [2]
The Parent alleges that the District failed to provide the Student with a free and appropriate public education (“FAPE”) for the 2023-24 school year.[3] The Parent requests the following relief: 1) a finding that the District failed to provide the Student with a FAPE for the 2023-24 school year; 2) a finding that the Private School is an appropriate placement for the Student for the 2023-24 school year; 3) a determination that the Parent has cooperated throughout the special education process and that the equities do not bar an award or funding for tuition at the Private School for the 2023-24 school year; 4) an order that the DOE reimburse/directly fund prospective tuition to the Private School for the 2023-24 school year; 5) an order that the DOE reimburse the Parent for a private neuropsychological evaluation; 6) an order that the DOE provide the Student with Applied Behavioral Analysis (“ABA”) for 20 hours per week, by a provider of the Parent’s choice, at market rate [4]; 7) an order that the Student was entitled to a 12-month school year; 8) an order that the DOE must provide appropriate transportation to and from the Private School, and/or provide reimbursement and/or prospective funding for any private transportation expenses incurred as a result of the DOE’s failure to provide transportation; and 9) an award of such other, further, and different relief as the impartial hearing officer determines to be fair and just under the circumstances of this case. 5
PROCEDURAL HISTORY
On September 22, 2023, the Parent, through Parent’s Counsel, filed a due process complaint (“DPC”) against the District pursuant to the IDEA.[6] I was appointed on October [5], 2023, to determine the claims in the DPC and to conduct a due process hearing (“DPH”), pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1). On October 22, 2023, the resolution period expired without the parties reaching an agreement. On October 30, 2023, settlement and prehearing conferences were held with the representatives of the parties. On November 17, 2023, a status conference was held with the representatives of the parties. Finally, on December 4, 2023, a DPH was held.
At the DPH, Parent’s Counsel submitted 38 exhibits, all of which were admitted into evidence pursuant to stipulation, except for Parent Exhibits F – J.[7] Parent Exhibits F, G, and L were admitted into evidence over the District’s objections and the District withdrew objections to H – J. Parent’s Counsel also presented 4 witnesses: 1) Private School Supervisor, 2) Psychologist, 3) BCBA, and the 4) Parent. The District Representative submitted seven exhibits, all of which were admitted into evidence pursuant to stipulation, except for District Exhibits 4 - 6.[8] District Exhibits 4 – 6 were admitted into evidence over Parent’s objections, but would be given limited weight. The District Representative presented no witnesses at the DPH and relied on their documentary evidence. A list of the documentary evidence in this proceeding is appended to this Decision and Order.
JURISDICTION
A decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (“IDEA)[9] and its implementing regulations,[10] and the New York State Education Law[11] and its implementing regulations. [12]
LEGAL FRAMEWORK
Under the IDEA, a free and appropriate public education (“FAPE”) is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the individualized education plan (“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.[13] 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. [14]
The IDEA directs that, in general, an Impartial Hearing Officer’s (“IHO”) decision must be made on substantive grounds based on a determination of whether the student received a FAPE.[15] A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” [16]
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.[17] 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.” [18]
The District 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. [19] These three conditions/prongs constitute the Burlington/Carter Test in a tuition reimbursement case.
In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” 20 Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion. 21 Although an award of damages is not available under the IDEA, 22 “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” 23
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. 24 The standard required is a preponderance of the evidence. 25
FINDINGS OF FACT AND DECISION
A. CLAIM FOR TUITION REIMBURSEMENT A parent may challenge an IEP and seek reimbursement for a unilateral placement by filing a due process complaint requesting a due process hearing. 26 In tuition reimbursement or direct funding cases, the three-part Burlington/Carter test is applicable, requiring a parent to prove: “(1) the school district's proposed placement violated the IDEA by, for example, denying a FAPE to the student because the IEP was inadequate;
(2) the parents' alternative private placement was appropriate; and
(3) equitable considerations favor reimbursement.” 27
I. Failure to Provide a FAPE
At impartial due process hearings in New York, the burden is on the District to prove that they provided Student with a FAPE.[28] A school district has offered a student a FAPE when (a) the 20 Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015). 21 Florence County Sch. Dist. Four v. Carter by & Through Carter, 510 U.S. 7, 16 (1993). 22 See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002) 23 Doe v. East Lyme, 790 F.3d at 454. 24 NYS Educ. Law § 4404(1)(c). 25 See 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2d Cir. 1998). 26 See 20 U.S.C. § 1415(f)(1)(A); M.O. v. N.Y.C. Dep't of Educ., 793 F.3d 236, 239 (2d Cir. 2015). 27 Ventura de Paulino v. N.Y.C. Dep't of Educ., 959 F.3d 519, 526-27 (2d Cir. 2020) (internal quotation marks omitted) (derived from Sch. Comm. of the Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359, 105 S. Ct. 1996, 85 L. Ed. 2d 385 (1985), and Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 114 S. Ct. 361, 126 L. Ed. 2d 284 (1993)). board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits.[29] 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.”[30] The District in the case at hand took no position as to whether the District provided the Student with a FAPE for the 2023-24 school year. The Parent’s position is that the District procedurally and substantively denied Student a FAPE for the 2023-24 school year and did not provide Student with placements or programs that would allow Student to make progress appropriate in light of their circumstances. [31]
A school district offers a student a FAPE when they provide “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”[32] The “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.”[33] “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.”[34] The IDEA ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.”[35] School districts are not required to “maximize” the potential of students with disabilities.[36] However, a school district must still provide Student with “an IEP that is ‘likely to produce progress, not regression,’ and…affords the student with an opportunity greater than mere ‘trivial advancement.’”[37] The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.”[38] The student's recommended program must also be provided in the least restrictive environment (“LRE”). [39]
It is undisputed that the Student has been classified with “Autism,” which affects their ability to learn and comprehend, communicate, complete activities of daily living (“ADL”), as well as causes delays with fine and gross motor skills, issues with feeding, affects their attention, ability to regulate their emotions, and difficulty socializing.[40] As a result, the Student has academic delays, in that their “cognitive skills are functioning below age level,” and they have “minimal interest in academic activities.”[41] Overall, the Student “demonstrates global delays that impact ability to access the curriculum.”[42] At the DPH, the District Representative presented no witnesses and provided no explanation as to how the Student’s April 2023 CPSE IEP[43] (implemented for the summer months of July – August 2023) or the Student’s May 2023 CSE IEP (“turning-5 IEP”) [44] (created for the months of September 2023 – June of 2024) were reasonably calculated to enable the Student to make progress in light of the Student’s disability. The District provided no explanation as to why the October 2022 CPSE recommended an 8:1:2 special class placement at the with the following related services: 1:1 speech-language therapy (“SLT”) 3x/week for 30 minutes; 1:1 occupational therapy (“OT”) 2x/week for 30 minutes; 1:1 physical therapy (“PT”) 2x/week for 30 minutes; parent counseling and training (“PCAT”) 1x/month for 60 minutes, and a BIP[45] or why the CPSE reconvened in April of 2023 to amend the Student’s CPSE IEP to include a 1:1 full-time crisis paraprofessional.[46] They District also provided no explanation as to why the May 2023 CSE recommended a 12-month special education program in a 6:1:1 class for all academics subjects, at the Kindergarten School, as well as the following related services: 1:1 OT 2x/week for 30 minutes in the OT room, 1:1 OT 1x/week for 30 minutes in the classroom; PCAT 5x/year for 45 minutes, 1:1 physical therapy (“PT”) 2x/week for 30 minutes, 1:1 SLT 3x/week for 30 minutes, a 1:1 full-time behavior paraprofessional, a behavior intervention plan (“BIP”), but no assistive technology device or communication device. [47]
Most importantly, the District provided no explanation for why the Student’s recommended preschool special education program would be continued at the Preschool Placement[48] for the Summer of 2023-24, or why the May 2023 CSE IEP could not be implemented until September of 2023.[49] The Parent testified at the DPH that they requested the May 2023 CSE IEP be implemented for July – August of 2023 instead of the April 2023 CPSE IEP. [50] However, the Kindergarten Placement was not available until September of 2023. The Parent testified that the CSE recommended the Student continue receiving services as per the April 2023 CPSE IEP at the Preschool Placement for the summer of 2023, and later was supposed to start Kindergarten at the Public School in September of 2023, at which time the May 2023 CPE IEP would be implemented. [51]
The Student’s April 2023 CPSE IEP[52] notes that the Student made progress in physical therapy, but was still demonstrating delays in gross motor skills in key functional areas.[53] The Student’s “preschool language scales” evaluation notes that the test was administered, “but discontinued due to difficulty participating and attending to testing stimuli.”[54] The Student is noted to “present with significant delays across most developmental domains which impact [their] performance in the classroom and [their] socio-emotional development.”[55] The Student is noted to have a “learning style that requires consistency, constant adult physical support and repetition to promote skill acquisition…” and “presents with minimal interest in academic activities.”[56] The Student was observed to not use eating utensils during mealtime, required prompts to clean up after themselves, was not toilet trained, and would pull their pants down to show they soiled themselves.[57] The Student is noted to use total communication (like actions, body movements, and facial expressions) to communicate throughout the school day and language (body movements, vocalizations, and facial expressions) to gain attention, protest unwanted activities/objections, and express pleasure/displeasure, and to leave the class.[58] The Student could not imitate sounds, “produce syllable strings with inflection similar to adult speech,” or “produce different types of consonant-vowel combinations.”[59] They are noted to prefer to play alone,[60] has difficulty completing teacher-directed activities independently, does not play with toys functionally, and does not transition independently.[61] The Student demonstrates behavioral issues, such as expressing anger and frustration by crying and pulling adults to items they want, and cannot label their feelings or frustration verbally.[62] The Student demonstrated ability to complete physical activities like jumping on a trampoline, getting on and off a tricycle and pedaling, stepping over objects, etc.[63] However, the Student has difficulty with sensory processing, maintaining eye contact, responding to their name, is sensitive to noise, has brief attention span, and difficulty engaging in tasks presented to them. [64]
The Student’s May 2023 IEP notes that the Student has “a learning style that requires consistency, constant adult physical support, and repetition to promote skill acquisition and maintenance,” and “presents with great delays with [their] cognitive skills.”[65] The Student “demonstrates global delays that impact ability to access the curriculum.”[66] The Student is noted to require a “small structured special education classroom in order to develop age appropriate cognitive, communication, and motor skills.”[67] The May 2023 CSE IEP notes a May 1, 2023 psychoeducational evaluation was conducted and that the Parent informed the evaluator that the Student was diagnosed with Autism.[68] The Student was noted to be in the “very likely” range for Autism and that they require “very substantial support.”[69] The Student’s communication skills were in the low range, their expressive language skills in the low range, reading and writing skills in the low range, ADL skills in the low range, socialization skills in the low range, and coping skills in the low range.[70] The CSE’s IEP summarizes a private psychological evaluation [71], conducted by the Psychologist, that the Parent provided to the District.[72] The IEP notes that the Student was diagnosed with Autism Level 3, and additionally, attention deficit/hyperactivity disorder (“ADHD”).[73] The Student is noted to have significant developmental delays, particularly with language and communication abilities, attention, and sensory processing.[74] The Student has significant difficulty with expressing their needs functionally, interacting socially, has ongoing significant motor planning and coordination deficits that impact their ADL skills and ability to write, is highly distractible, and is delayed in their adaptive skills.[75] The Psychologist’s recommendations for a highly individualized, evidence-based, 1:1 behavior support are noted. [76] The Student is “largely prompt dependent,” in that they required frequent prompts and repetition of instructions, as well as tactile support to engage.[77] At the time that the CSE met, the Parent informed the CSE that the Student was able to say very few words at home, and that the Student required a “substantial level of support in the classroom,” a “small structured classroom environment, 1:1 adult support, AAC device to support communication, [] frequent opportunities for sensory output,” and “ABA.”[78] The Student also required a full-time ABA program for their Kindergarten year in 2023-24.[79] The CSE stated in the IEP that the Student requires “1:1 support to address [their] behaviors,” elopes, climbs furniture, has a tendency of crying, jumping up and down, and throwing themselves on the floor.[80] The Student is noted to also have difficulties with sensory processing, enjoys engaging in physical activity, but still had difficulty with fine motor skills.[81] The CSE found the Student requires a “small structured special education classroom in order to develop age appropriate cognitive, communication, and motor skills,” as well as a speech language therapist, to improve expressive and receptive language, an occupational therapist, and a physical therapist, in order “to develop age appropriate fine motor, visual motor, and gross motor skills.” [82]
After the May 2023 IEP, the Parent toured the “sister-school” of the Kindergarten Placement and found that it was not appropriate for the Student.[83] The classroom placements were based solely on age and grade level, as opposed to functionality level, and provided a standardized curriculum, did not have ABA-therapy, a BCBA on staff, or ABA-trained staff.[84] The Parent later visited the Kindergarten Placement in September of 2023, and learned that this school only offered placement for kindergarteners.[85] The Parent could not speak to any teachers or observe classroom instruction, was unable to gather information as to the functionality level of the other autistic students, and was told that the kindergarten school was not an ABA school.[86] The Kindergarten Placement also had a shortage of related service providers, and so current students were not receiving their recommended related services.[87] The Kindergarten Placement intended to provide services to students in either a classroom or shared sensory room, which was not appropriate for the Student, as they are sensitive to sound and movement and are easily distracted.[88] The Parent wrote to the CSE and expressed that the placement was not appropriate and never received a response or alternative recommended placement.[89] Additionally, the Student was rejected from the DOE ASD Program called AIMS, as they had no spots available, and did not apply for the Horizon Program, as there was no 6:1:1 classroom and the placement required students speak sentences, which the Student could not do. [90]
Overall, despite all of the Student’s academic, language, fine and gross motor skills, social skills deficits, as well as their known behavioral issues which stem from their Autism diagnosis, the District failed to provide any explanation or testimony as to why the Student was recommended the April 2023 CPSE IEP special education program for the Summer of 2023, the May 2023 CSE IEP special education program for the remainder of the 2023 school year, or the recommended placements. The Student’s special education programs for the 2023-24 school year do not adequately address the Student’s academic, speech, fine motor skill, and behavioral needs despite the Student’s known delays and deficits. The Student required a small classroom setting, yet continued to remain in an 8:1:2 class size for the Summer of 2023. The Student was also recommended for individualized 1:1, evidence-based support, like ABA, but only received the support of a 1:1 crisis behavior paraprofessional. If the Student had attended the Kindergarten Placement in September of 2023, they would not have been able to receive related services, and even if they could, it would be provided in a group setting, rather than the recommended 1:1 setting. In kindergarten, the Student would also not have received ABA therapy, as recommended by the Psychologist and would not have bene grouped with students functionally similar. The Student’s recommended programs and placements would not have allowed the Student to make meaningful progress in their academic courses in light of their disability and achieve the goals recommended in their IEPs. As such, the District did not meet its burden under Prong I of the Burlington/Carter test. I find that the District did not provide Student with a FAPE for the 2023-24 school year, as Student’s IEPs were not reasonably calculated for Student to obtain an educational benefit, and the recommended placements were inappropriate.
II. Appropriateness of Private School Under the Burlington/Carter three-prong analysis, when parents unilaterally place their child in a private program and seek funding and/or reimbursement for that program, they must show, by the preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student.”[91] The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.”[92] In Gagliardo v. Arlington Cent. Sch. Dist., the Court held 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.” [93] The focus should be 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 the school district placement. The private placement need not provide certified special education teachers or an IEP.
The District argued at the hearing that the Private School was not appropriate for the Student, as the Student was not receiving enough OT, received no PT, and that the Student should not receive at-home ABA therapy to support their progress in the Private School placement. The Parent maintains that the Private School placement is appropriate, as it is a highly individualized 1:1, full-time ABA program for students with Autism.
I find that Private School is appropriate, as the hearing record establishes that the Private School meets the special education needs of the Student. Parent presented the affidavit testimony of the Private School Supervisor,[94] the Psychologist,[95] the BCBA,[96] and the Parent.[97] The Parent also presented documentary evidence to support their position. [98] Private School Supervisor The Private School Supervisor is employed as Classroom Supervisor at the Private School.[99] The Private School Supervisor’s duties entail of overseeing the development and implementation of individualized programming and behavior plans for students in three classrooms, which each have six to seven students each, at the Private School.[100] The Private School Supervisor updates behavior plans, prepares students’ annual goals, progress reports, provides ongoing training for ABA, supervises staff, communicates with parents, and participates in IEP meetings.[101] The Private School “is an independent special education school that offers an ungraded program for students five to 21 years old.”[102] The school serves students with autism and related developmental disabilities who need a highly individualized program of ABA.[103] The Private School provides an ABA program, has highly trained staff in ABA, including BCBAs, and a class structure that allows for 1:1 instruction.[104] The Private School uses ABA “to break down steps of an essential skill and teach each step to mastery in pursuit of a student’s pre-academic, academic, social, and behavioral goals.”[105] The BCBA allows for a “lasting behavior change for [the] students, which can be in the community and home.” [106] The Private School assesses students using criterion-based measures to establish baseline goals and provide a foundation for what skills and behaviors need to be addressed in the student’s program.[107] The Students are also reassessed.[108] The Students are grouped with other students who are within a three-year range of them with consideration for their functional skills.[109] The Private School offers related services in a push-in and pull-out basis, and the related services of OT, SLT, music therapy, and adapted physical education, as well as a sensory gym.[110] The Students receive co-treatment sessions and twice a month, the related services providers and teachers meet to discuss student progression.[111] The parents also have team meetings with the students’ teachers and supervisors. [112] The Private School Supervisor is familiar with the Student, as the Student has attended since 2023 and is in a classroom they supervise.[113] They also participated in the creation of the Student’s special education program for the 2023-24 school year at the Private School.[114] The Private School Supervisor reviewed the Student’s private neuropsychological evaluation and prior IEPs and interviewed the Parent, which revealed that the Student has limited communication, difficulty transitioning, and throws tantrums.[115] The Student is below grade level in all academic areas, needs to make progress in reading and writing, cannot identify numbers or letters, is working on tracing lines, has difficulty responding to their name, and is working on goals towards these deficits.[116] The Private School is currently in the process of conducting a FBA so that a BIP can be created for the Student.[117] The Student is in a highly individualized program in a 6:1:5 classroom, which 5 assistants are ABA instructors.[118] The Student receives five hours of 1:1 instruction, with some group instruction, which curriculum consists of academic skills, verbal behavior, self-management, leisure skills, social skills, and behavioral skills, as well as the following related services: 1:1 SLT 3x45, a SLT lunch consultation for 30 minutes, 1:1: OT, 2x45; an OT lunch consultation for 30 minutes; group OT 1x30; with 1:1 support from an ABA instructor in their classroom groups.[119] The Student currently has an augmented and alternative communication (“AAC”) device to assist him with communication.[120] The Student is also working on sitting in a chair and tending to instruction.[121] So far, the Student has made progress across all domains at the Private School for the 2023-24 school year in light of their delays with communication, social skills, sensory processing and regulation, and hyperactive behaviors.[122] The Private School Supervisor’s opinion is that the Private School is an appropriate placement for the Student, and that any less supportive program would not be appropriate for the Student.[123] They are also familiar with District 75 (“D75”) programs and that a 6:1:1 class setting, even with a paraprofessional, is not appropriate for the Student because they require 1:1 individualized instruction to acquire and maintain skills, and cannot sit still in a group without individual support. [124] On cross-examination, the Private School Supervisor testified that the Private School does not provide physical therapy and OT, but that the students do receive adaptive physical education. Adaptive physical education allows the students to perform the same routines, like warm-up exercises, sports activities, and calm down activities. Psychologist The Psychologist testified that they are a private psychologist and operate a private practice.[125] The Psychologist conducted a private neuropsychological examination of the Student in May of 2023.[126] The Psychologist reviewed the Student’s records, including DOE evaluations and IEPs, and interviewed the Student’s parent.[127] The Psychologist learned that the Student had “significant language and communication delays, sensory processing difficulties, adaptive functioning weaknesses, and developmental delays as they became older.”[128] The Psychologist testified that they employed behavioral strategies when testing the Student in a 1:1 or 2:1 environment, but they were highly distractible, required monitoring and constant redirection, especially when attempting to elope, exhibits self-stimulatory behaviors, and was unable to understand and complete most tasks due to their significant language and motor skill weaknesses, like holding a pencil.[129] The Psychologist observed the student in class, saw they could not use toys functionally and was non-responsive to verbal communication, required consistent repetition and redirection to join a group, was non-responsive to peers, wandered around the classroom, and struggled to pay attention.[130] The Psychologist learned that the Student had significant developmental delays, in language and communication, with attention, and with sensory processing, cannot express their needs, socialize, is hyperactive, and relies on adults for ADL.[131] They could not assess the Student’s IQ because of the Student’s language and comprehension and attention challenges. [132] The Psychologist diagnosed the Student with Autism, Level 3, requiring very substantial support in both communication skills and restrictive repetitive behavior with accompanying language impairment, and with ADHD, combined presentation (severe severity).[133] The Student requires substantial behavioral support in order to access instruction, substantial support to develop functional speech, to use and understand non-verbal language, and interact with peers. [134] The Student exhibits restrictive repetitive behaviors, like stimming, is self-directed, and is inflexible, and also is inattentive, hyperactive, and impulsive, which interferes with their ability to learn without substantial and individualized support.[135] The Student was recommended by the Psychologist for a small, structured, full-time ABA classroom, housed within a small, supportive school for students with autism, with 1:1 ABA support all throughout the day and BCBA supervision.[136] The educational program should focus on language and communication, social interaction, task compliance, and attention. grouped with verbal children, and receive 20 hours of ABA therapy at home.[137] At-home ABA would help the Student at-home and in the community, as they require help with navigating in the community and ADL, and would prevent regression of skills developed at school.[138] The Psychologist believes that the Private School is appropriate for the Student because they offer a highly individualized and structured full-time, 1:1 ABA program with comprehensive related services and a sensory gym.[139] The Psychologist believes that the DOE’s preschool program was not appropriate for the Student, as it was not structured enough, had no facilitation for peer interaction, development of language and communication skills, ABA, 1:1 support, or consistency.[140] The Student’s May 2023 CSE IEP recommended special education program is also not appropriate because the class setting is too large for the Student and they are not recommended for ABA therapy.[141] A 1:1 crisis behavior paraprofessional does not provide the Student with necessary support.[142] D75 programs and schools do not offer a comprehensive ABA program with the level of structure and individualized support that the Student requires.[143] Additionally, the cost of the neuropsychological evaluation performed cost $7,500, which was paid in full by the Parent. [144]
BCBA
The BCBA testified that they are board-certified and are also a licensed behavioral analyst (“LBA”).[145] They are responsible for direct instruction to students, like the administration of ABA protocol, supervision of ABA data, overseeing implementing ABA, modifying programs, parent training, collaboration with teachers and parents, as well as the development of programs.[146] The BCBA provided the Student with ABA services since November of 2022 and can receive up to 20 hours/week.[147] The BCBA developed the Student’s ABA program by conducting an assessment and reviewing their records.[148] The BCBA learned that the Student’s adaptive functioning, including communication, ADL skills, and socialization fell below first percentile for their age, had difficulty focusing, which affected their social skills, could not complete ADL activities, and frequently would tantrum.[149] The Student would elope from their Parent and would become overly stimulated in the community.[150] The BCBA created communication, social, play and leisure, function/self-help, community integration, and behavior goals for the Student and provided PCAT to the Parent.[151] The BCBA also works with the Private School to collaborate on development of the Student’s goals and progress.[152] The BCBA is currently receiving payment through insurance.[153] The Student requires after-school ABA in addition to a full-time ABA program because they have moderate to severe deficits in the areas of communication, attending skills, restrictive/repetitive behaviors, social interactions, play and leisure skills, and functional skills.[154] The ABA therapy at home would target these various areas to ensure the Student can be independent and maintain meaningful relationships in their life.[155] The BCBA recommends 20 hours of ABA, with 4 hours of BCBA supervision, and 1 hour of PCAT per week for the 2023-24 school year, as the Student has significant delays with each skill domain. [156] Parent The Parent testified that they are the mother of the Student, who is REDACTED-years-old.[157] The Student is diagnosed with Autism, Level 3, and severe ADHD.[158] The Student developed differently than other children, cannot socialize with children their age, is selfdirected, has sensory-seeking behaviors, cannot attend to tasks, is overstimulated by noise and crowds, and is non-verbal.[159] The Student’s Preschool Placement was not able to implement the Student’s Preschool IEP during the 2022-23 school year and the Parent was told by the Student’s teachers that the Student was not making progress and that the Student could not be moved to a more restrictive classroom because they could not sit still.[160] The Parent requested a neuropsychological evaluation from the CPSE, but instead a FBA was done and they were told that neuropsychological evaluations were normally obtained through private health insurance. [161] The CPSE reconvened in April of 2023 and the Parent again requested a neuropsychological, but was denied one.[162] The Student’s preschool special education program was not modified and they never received a paraprofessional.[163] The Parent took the Student to the Psychologist to have a private evaluation conducted and provided the CPSE with a copy of the report.[164] In March of 2023, the Parent contacted the CSE to begin the Student’s transition process due to their concerns with the preschool program.[165] The CSE convened in May of 2023 and provided the CSE with a copy of the neuropsychological report and brought the Psychologist to the meeting.[166] The Parent and Psychologist requested a full-time, 1:1 ABA program and placement with daily OT and SLT, explained their concerns with the Student’s 2022-23 program and placement, and requested more individualized support.[167] The Parent was told to apply for ASD programs.[168] The Parent did not find the May 2023 CSE IEP to be appropriate, as there was no ABA recommended and the paraprofessional was not trained in ABA, or other evidence-based methodologies.[169] The CSE has not addressed the Parent’s concerns, even after she wrote them a letter.[170] The Parent requested a private neuropsychological, as the DOE’s psychoeducational evaluation was not comprehensive enough.
As described above, the Student was rejected from one ASD program and the Parent did not find the other ASD program to be appropriate for the Student.[171] Additionally, as described above, the Parent toured the sister-school for the Student’s recommended placement for September of 2023 and found it was not appropriate, and later toured the actual placement, but also found it to not be appropriate.[172] The Parent wrote to the CSE in June of 2023 173 and again in September of 2023. [174]
The Parent investigated several schools that sever students like the Student and selected the Private School because they offer a holistic approach to ABA, as well as an individualized program.[175] The Parent believes that the Private School is appropriate because they offer 1:1 full-time ABA support, communicate with the Parent, and conducted assessments within the first six weeks that the Student began attending.[176] The Private School created classroom, OT, and SLT goals for the Student, and conduct clinic meetings with the Student’s teachers, related
See Parent Exhibit S. services providers, and at-home BCBA.[177] The Student has made progress since attending the Private School, like being able to sit and attend to tasks, even at home, will walk next to the Parent, listens, does not elope as often, and is calmer.[178] The Student also can greet family members, is able to identify themselves, and has improved their receptive language.[179] The Parent additionally testified at the DPH that even though the Student is not receiving PT at the school, they still find it to be appropriate, as the Student’s main deficits are with SLT and OT, and not PT. The Student currently receives OT, which still works on the same gross motor skills that the Student worked on in PT. The Student also has adaptive physical education at school.
The Parent paid a registration fee in the amount of $1,000 for the Private School and $500 every month towards the tuition, which costs $181,280.[180] The Parent also paid $5,527.28 for the private neuropsychological evaluation, as $1,972.62 was covered by the Parent’s insurance.[181] The Parent also requests 20 hours of at-home ABA for the Student as the neuropsychologist recommended this and requires it to transition the skills learned at school to the home, and will be losing insurance coverage soon, and therefore requires the DOE to fund the necessary at-home ABA. [182]
“[E]vidence of . . . progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA.” As described above, the Student is classified with “Autism” and has delays with academics, cannot even write their name, is non-verbal, has behavior issues that stem from their disabilities, fine and gross motor skills delays, and social skills delays, all of which affect their ability to learn.[183] Based on the Psychologist, BCBA, Parent, and Private School Supervisor’s testimony, the Student’s program at Private School is specifically and individually designed for students with autism, who have academic delays, behavioral issues, and attention deficit disorders.[184] The Private School program provides the Student with full-time special education instruction, a small class size with a 6:1:5 student to teacher ratio, specifically 5 ABA therapists, an individualized curriculum, and related services included as part of the school day.[185] The Private School Supervisor testified as to the learning methodologies used at the Private School’s program, as well as how the special education teachers, related service providers, and at-home BCBA, all collaborate to create a curriculum for the students that meet the individual needs of the students with Autism.[186] Given the degree to which the Student’s disability has reduced their access to their academic curriculum, as well as delays with speech, communication, socializing, fine and gross motor skills, as well as behavioral issues, and the way in which the program addresses the Student’s deficits and needs, including the way it has demonstrably provided them more access to an education, I find that the Private School provides educational instruction specially designed to meet the unique needs of Student. Even though the Private School does not provide PT, “the 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.”[187] The weight of the evidence and testimony of the Parent’s witnesses, including themselves, all which I find to be credible, also demonstrates that the Student also made progress from the individualized instruction and supports provided at the Private School program for the 2023-24 school year. Based on the record before me, I find that the Private School is appropriate to meet Student’s needs,[188] and that the Parent met their burden under Prong 2 of the Burlington/Carter analysis. III. Equitable Considerations Where a parent establishes a right to tuition reimbursement under the IDEA for a private school placement, a weighing of the equities must support that award, as “equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.”[189] When a school district fails to provide a student with a FAPE and the private placement is found to be appropriate, “the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief.” 190 “A major consideration . . . is whether the parents have cooperated [with the school district] throughout the process to ensure that their child receives a FAPE.” 191 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. 192 The IDEA also states 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.”[193] One of the purposes of the statutory notice provision is to provide the school district with “an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a free appropriate public education can be provided in the public schools.”[194] “Reimbursement 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. [195] The hearing record does not demonstrate that the Parent “acted with the requisite level of unreasonableness or misconduct that reimbursement should be denied on equitable grounds.”[196] There is nothing in the hearing record that demonstrates that the Parent interfered with the District’s evaluation or prevented them from providing Student with a FAPE for the 2023-24 school year. The Parent cooperated with the CSE and attended Student’s April 2023 CPSE IEP
Gagliardo, 489 F. 3d 105 at 112, citing Carter, 510 U.S. 7 at 16. 191
N.R. ex rel. T.R. v. Dept. of Educ., 2009 WL 874061, at *6 (S.D.N.Y. 2009) (citation omitted). 192
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). meeting and the May 2023 CSE IEP meeting. The Parent also made reasonable efforts to contact and consider the District’s recommended school placement. The Parent rejected the Preschool Placement, as the preschool class size was not large, the Student was not receiving their related services or paraprofessional. The Parent also rejected the Kindergarten Placement, as there was no ABA methodology utilized full-time. The Parent provided ten-day notice to the District, on June 23, 2023, and informed them that they would be placing the Student at the Private School, as that school provided the Student with an individualized, structured, ABA-based program that would allow the Student to make progress.[197] The Parent testified at the DPH that they could not afford the tuition at the Private School and provided proof of earnings.[198] I find the Parents have met the third prong of the Burlington/Carter analysis, as a weighing of the award supports an award of tuition funding directly to the Private School and reimbursement to the Parent for Private School for the 2023-24 school year.
The hearing record establishes that the Parent incurred an obligation to pay the Private School a total of $181,280.00 for the Student’s enrollment in the Private School for the 2023-24 school year.[199] The Parent testified that they could not afford the tuition at the Private School should they not receive public funding. The Parent paid $1,000.00 for a registration fee and then $500.00 monthly for five months towards tuition, totaling $3,500.00. The Parent still owes $177,780.00 to the Private School. Tuition funding paid directly to a private school is justified where parents have satisfied the Burlington/Carter Test and have shown that they cannot afford to front the cost of their child’s tuition.[200] Accordingly, I find that the Private School is entitled to be paid tuition by the District in the amount of $177,780.00 and reimbursement to the Parent in the amount of $3,500.00 for the Student’s attendance during the 2023-24 school year.
II. Independent Educational Evaluations General Process
An IEE is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” [201]
The IDEA, State and federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation.[202] In Shaffer v. Weast, the Supreme Court explained the role an IEE plays in parental participation and the IDEA’s regulatory scheme as follows: “[an IEE] ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. “They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” [203]
If a parent requests an IEE, the school district must provide the parent with information about where they can obtain an IEE.[204] A school district can set criteria regarding the IEE, including the qualifications of the examiner, but the district’s criteria must be the same as the criteria it uses for its own evaluations, and the district cannot impose additional conditions or timelines related to the IEE.[205] For example, a school district may not compel the use of a particular evaluator or its own chosen evaluator for an IEE [206], nor can it deny an IEE at public expense based solely on financial cost [207]. A parent’s right to an IEE at public expense may not be conditioned on the school district’s ability to first conduct its own assessment before granting the parent’s request for an independent IEE.[208] Finally, while the school district may “ask for the parent’s reason why he or she objects to the public evaluation,” the district cannot require an explanation or delay providing the IEE until the parent provides an explanation. [209]
When a parent disagrees with a school district’s evaluation and requests an IEE at public expense, the school district “must, without unnecessary delay,” either (1) ensure that an IEE is provided at public expense; or (2) initiate an DPH to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. [210]
A parent is entitled to an IEE when the district does not conduct a sufficiently comprehensive evaluation or fails to test the student in an area of need.[211] The court in D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020) stated that, “[n]othing in the statute or regulations suggests that a parent cannot challenge an evaluation on the ground that it was too limited. To the contrary, because the IDEA requires an evaluation to be comprehensive, one would expect that a parent is free to disagree with an evaluation based on its deficient scope.”[212] The U.S. Department of Education's Office of Special Education Programs (“OSEP”), has similarly stated that when a parent disagrees with an evaluation because a child was not assessed in a particular area, “the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs.” [213]
The school district bears 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.[214] Accordingly, the school district bears the burden of showing that its evaluation of student was appropriate in order to prevail in its challenge to Parent's request for IEEs at public expense. [215]
An IEE may also be requested by an impartial hearing officer “as part of a hearing on a due process complaint.”[216] The N.Y.C.R.R. does not provide limitations or guidance about hearing officer requests or directives for IEEs. There are however limitations to an IHO’s authority to order IEEs “‘as part of’ the larger process.” [217] Timeliness
Pursuant to Federal and State regulations, the school district must conduct triennial reevaluations for a student at least once every three years.[218] There is no statute of limitations specified in the IDEA “for a parent’s right to disagree with an evaluation for the purpose of obtaining an IEE at public expense.”[219] However, the Second Circuit in D.S. v. Trumbull Bd. of Educ. held that “[b]ecause the only evaluations that trigger a parent's right to an IEE at public expense are the initial evaluation and triennial reevaluations discussed in Section 1414 of the Act, a parent's right to an IEE at public expense ripens each time a new evaluation is conducted.”[220] The Court went on to explain that “[t]he time within which a parent must express their disagreement with an evaluation and request an IEE depends on how frequently the child is evaluated.”[221] Unlike initial evaluations, the regulations do not speak to when a triennial evaluation must be completed by.[222] However, “[w]here, as here, a child is evaluated according to the default evaluation timeline, the parent must disagree with an evaluation within that three-year timeframe.” [223]
The District argued at the hearing that the Parent was not entitled to be reimbursed for the private neuropsychological evaluation, as the Parent has to disagree with a DOE neuropsychological evaluation in order to receive an IEE. The Parent argued that there is no such requirement under the IDEA and NYS laws, and that the Parent requested a neuropsychological from the District, as they found the psychoeducational evaluation was not comprehensive enough to assess the Student for their disabilities and how it impacted their ability to learn. The Parent additionally provided documentary evidence of their requests to the District and testified as such. Pursuant to the IDEA and NYS laws and regulations, the Parent is entitled to an IEE where they disagree with the evaluation conducted by the District. In the instant matter, the District did not file a DPC to defend their evaluations and did not provide the Parent with the requested neuropsychological evaluation. Additionally, there is no requirement for the Parent to disagree with a specific District-conducted evaluation in order for the Parent to request an IEE. The Parent paid for the private psychological with health insurance and paid for the remaining balance outof-pocket. The Psychologist testified that the neuropsychological evaluation cost $7,500.00. The Parent paid $5,527.38 out-of-pocket and insurance covered $1,972.62. With respect to timeliness,
I find that the Parent requested an IEE in a timely fashion, as the Student’s last psychological evaluation was conducted May of 2023. The District also relied on the private psychological evaluation in assessing the Student and developing a special education program for the Student’s May 2023 CSE IEP. I find that the Parent is entitled to reimbursement for the private psychological evaluation conducted for the Student.
III. Transportation
The IDEA further requires that a school district must provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’ even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport.”[224] In addition, New York 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.”[225] The requested transportation must also be “reasonable when all of the facts are considered.”[226] In a guidance document, the State Education Department has indicated that the CSE should consider and document a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, that the IEP “must include specific transportation recommendations to address each of the student's needs, as appropriate,” and that when determining a student’s special transportation needs, such as the need for door-to-door transportation, it must document them.[227] 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. [228]
The Parent provided ten-day notice to the District requesting transportation to and from the Private School for the 2023-2024 school year. The Student’s April 2023 CPSE IEP notes that the Student requires specialized transportation with air-conditioning.[229] The Student’s May 2023 CSE IEP notes that the Student requires special transportation from the closest safe curb location to school.[230] The District did not contest at the DPH that the Student required special transportation to and from the Private School to home. As such, consistent with the Student’s IEP for the 2023-24 school year, I find that the Student is entitled to special transportation to and from the Private School to home.
ORDER
Based upon the above Findings of Fact and Decision, it is hereby:
1. ORDERED that, the DOE failed to provide the Student with a FAPE for the 2023-24 school year; and it is
2. FURTHER ORDERED that, the Parent’s placement of the Student at the Private School for the 2023-24 school year for a 12-month special education program is appropriate; and it is
3. FURTHER ORDERED that, the DOE directly fund the Student’s placement at the Private School for the 2023-24 school year, in the amount of $177,780.00, and reimburse the Parent in the amount of $3,500.00; and it is
4. FURTHER ORDERED that, the DOE shall provide or fund door-to-door special transportation for the Student to get to and from school, and transportation from the closest safe curb location to school for the remainder of the 2023-24 school year; and it is
5. FURTHER ORDERED that, the DOE shall directly reimburse the Parent for the private neuropsychological evaluation in the amount of $5,527.38 upon proof of payment to the DOE; and it is
6. FURTHER ORDERED that, the DOE shall fund 20 hours of at-home ABA therapy, with 4 hours of BCBA supervision, per week, for the Student for the remainder of the 2023-24 school year, by a qualified, independent provider of the Parent’s choosing at market rate, by issuing payment directly to the provider within 35 days upon the submission of invoices for services rendered; and it is
7. FURTHER ORDERED that, the DOE’s implementation unit shall authorize all services hereby Ordered within 15 days.
SO ORDERED.
DATED: December 11, 2023
Melanie L. Bota 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.
DISTRICT EVIDENCE
1. Due Process Complaint 09/22/2023 15 pages DOE
2. IEP 05/22/2023 25 pages DOE
3. Prior Written Notice 05/31/2023 4 pages DOE
4. Classroom Observation 04/18/2023 2 pages DOE
5. Psychoeducational Evaluation Report 05/01/2022 5 pages DOE
6. Social History Update 04/04/2023 2 pages DOE
7. Physical Therapy Update 02/17/2023 13 pages DOE
PARENT EVIDENCE
A. Due Process Complaint 09/22/2023 15 pages
B. Ten Day Notice with CSE Confirmation 06/23/2023 6 pages
C. CPSE Evaluations: Psychological, Social History, SLT, September OT, PT, Behavioral Observation, and Home Language Survey 2022 32 pages
D. REDACTED ABA Initial Treatment Request October 2022 15 pages
E. CPSE IEP 10/26/2022 20 pages
F. Parent Emails with CPSE re: Compensatory Occupational Therapy Various 5 pages
G. Parent Letter and Email Communications with CPSE re: Concerns with Program and Placement Various 9 pages
H. Functional Behavioral Assessment by DOE – Received 03/09/2023 02/16/2023 7 pages
I. Behavioral Intervention Plan by DOE – Received 03/09/2023 02/17/2023 8 pages
J. CPSE IEP 04/03/2023 27 pages
K. Parent Signed Final Notice of Recommendation and Email with CPSE April 2023 3 pages
L. Parent Email with CPSE re: Compensatory Speech Language Therapy Various 3 pages
M. Parent Letter and Email Communications with CSE re: Turning Five Initial Assessments and Request for the Neuropsychological Evaluation Various 9 pages
N. Upper REDACTED Turning Five Progress Reports: Educational, OT, PT, and SLT Various 13 pages
O. CSE IEP 05/22/2023 25 pages
P. Prior Written Notice of Recommendation 05/31/2023 4 pages
Q. Parent Emails with CSE re: Request for Placement Recommendation June 2023 3 pages
R. Parent Letter to CPSE re: Psychologist Neuropsychological Evaluation and Program Concerns 06/09/2023 17 pages
S. Parent Letter to CSE re: IEP Concerns and Request for Placement Recommendation 06/15/2023 4 pages
T. Prior Written Notice and School Location Letter 06/15/2023 5 pages
U. Email from AIMS re: Rejection 06/21/2023 2 pages
PARENT
V. Emails with DOE Placement Various 3 pages
W. Parent Letter to CSE re: Placement Concern 09/13/2023 3 pages
X. Due Process Response 10/17/2023 3 pages
Y. REDACTED Enrollment Contract and Addendum 2023-24 7 pages
Z. Student Tuition Affidavit 2023-24
AA. REDACTED Program Description 2023-24
BB. Student Class Schedule 2023-24
CC. Student Attendance DD. Student Classroom Goals 2023-24 EE. Student Occupational Therapy Goals 2023-24 11/20/2023
FF. Student Speech Language Goals 2023-24
GG. REDACTED ABA Treatment Request HH. Parent Federal Tax Return (1040) 2022 05/2023
II. Affidavit REDACTED 11/10/2023
JJ. Affidavit of REDACTED PsyD 11/22/2023
KK. Affidavit of REDACTED 11/20/2023
LL. Affidavit of REDACTED 11/21/2023
IHO EXHIBITS
Redacted Information Term Used In FOFD
REDACTED Student
REDACTED Parent
REDACTED Parent Attorney/Counsel
REDACTED District Representative
REDACTED Preschool Placement
REDACTED Kindergarten Placement
REDACTED Private School
#3 District, DOE
REDACTED Private School Supervisor
REDACTED Psychologist
REDACTED BCBA
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] See Parent Exhibit A, at 4.
[3] See id.
[4] At the time that this decision was written, the transcript was not yet available. The Parent clarified at the DPH that they were requesting market rate, and not an enhanced rate as stated in the due process complaint.
[5] See id. at 3.
[6] See id at 1 – 14.
[7] At the DPH, the District objected to Parent’s Exhibits F – J, as they argued they were not relevant to the case at hand. The District withdrew their objections to Parent’s Exhibits H – J. Parent Exhibits F, G, and L were admitted over objections, as they are relevant to the school years at issue.
[8] District Exhibits 4, 5, and 6 were admitted into evidence over Parent’s objections that the Parent had never seen these documents before. I found that these exhibits were relevant and allowed them into the record, but would assess them with limited weight, as they are not business records and there was no witness to testify as to the creation of these records.
[9] See 20 U.S.C. § 1400 et seq.
[10] See 34 C.F.R. § 300 et seq.
[11] See Educ. Law Art. 89 § 4404 et seq.
[12] See 8 NYCRR § Part 200.
[13] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[14] See 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).
[15] See 20 U.S.C. § 1415(f)(3)(E)(i).
[16] Rowley, 458 U.S. at 203 (emphasis added).
[17] See Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5d Cir. 2000); 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).
[18] 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).
[19] See 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).
[28] M.W. ex rel. S.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013); A.M. ex rel. E.H. v. New York City Dept. of Educ., 845 F.3d 523, 535 (2d Cir. 2017).
[29] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[30] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[31] See Parent Exhibit A, at 1 - 13.
[32] Rowley, 458 U.S. at 203.
[33] Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189.
[34] Endrew F., 580 U.S. at 404.
[35] Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) [citations omitted]; see Grim, 346 F.3d 377, 379 (2d Cir. 2003).
[36] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132)
[37] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008).
[38] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Endrew F., 580 U.S. at 403 (holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances”); Rowley, 458 U.S. at 192.
[39] 20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132).
[40] See Parent Exhibit A, at 4.
[41] Parent Exhibit O, at 1.
[42] See id. at 6.
[43] See Parent Exhibit J.
[44] See Parent Exhibit O.
[45] See Parent Exhibit F, at 2.
[46] See Parent Exhibit J.
[47] See Parent Exhibit O, at 6, 5, 17, and 18.
[48] During the prior 2022-23 school year, the Parent had requested a smaller class setting than a 8:1:2, but was informed that the teacher in the 6:1:2 preschool setting would not accept the Student because they would not sit. See Parent Exhibit II, at 3.
[49] See Parent Exhibit O, at 1 [“Projected Date IEP is to be implemented: 09/06/2023.”].
[50] See Parent Exhibit II, at 6.
[51] See id.
[52] It should be noted that the Student’s CPSE IEP for 2022-23 was created in October of 2022. See Parent Exhibit D. However, in April of 2023, the CPSE reconvened to amend the October 2022 CPSE IEP to provide the Student with a 1:1 full-time crisis paraprofessional. See Parent Exhibit J. I will reference the CPSE IEP as the April 2023 CPSE IEP, as it was the Student’s last CPSE IEP.
[53] See Parent Exhibit J, at 4.
[54] Id.
[55] Id.
[56] Id. at 5.
[57] See id.
[58] See id.
[59] Id. at 6.
[60] See id. at 5.
[61] See id. at 6.
[62] See id.
[63] See id. at 7.
[64] See id.
[65] See Parent Exhibit O, at 1.
[66] See id. at 6.
[67] Id.
[68] See id. at 2.
[69] Id.
[70] See id. at 2 – 3.
[71] See Parent Exhibit R, at 2.
[72] See Parent Exhibit O, at 3; Parent Exhibit R, at 1.
[73] See Parent Exhibit O, at 3.
[74] See id.
[75] See id.
[76] See id.
[77] Id.
[78] Id. 3 – 4.
[79] See id. at 4.
[80] Id.
[81] See id. at 5.
[82] Id. at 6.
[83] See Parent Exhibit II, at 7.
[84] See id.
[85] See id. at 8.
[86] See id.
[87] See id.
[88] See id.
[89] See id.
[90] See id. at 6 – 7.
[91] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d Cir. 2007].
[92] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006].
[93] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[94] See Parent Exhibit KK.
[95] See Parent Exhibit JJ.
[96] See Parent Exhibit LL.
[97] See Parent Exhibit II.
[98] See Parent Exhibits A – LL.
[99] See Parent Exhibit KK, at 1 – 2.
[100] See Parent Exhibit KK, at 2.
[101] See id.
[102] Id.
[103] See id.
[104] See id.
[105] See id. at 3.
[106] Id.
[107] See id. at 3 – 4.
[108] See id. at 4.
[109] See id.
[110] See id.
[111] See id. at 4 – 5.
[112] See id. at 6.
[113] See id.
[114] See id. at 7.
[115] See id.
[116] See id. at 7 – 8.
[117] See id.at 8.
[118] See id. at 9.
[119] See id.at 10. The lunch consultations are weekly opportunities for OT and SLT providers to work with the Student to focus on their mealtime and language skills while eating. See id.
[120] See id.at 11.
[121] See id.
[122] See id. at 12 – 13.
[123] See id. at 13.
[124] See id.
[125] See Parent Exhibit JJ at 1.
[126] See id.
[127] See id. on 2.
[128] Id. at 3.
[129] See id. at 4.
[130] See id. at 5.
[131] See id.
[132] See id.
[133] See id. 5 – 6.
[134] See id. at 6.
[135] See id.
[136] See id.
[137] See id. at 7.
[138] See id.
[139] See id. at 8.
[140] See id.
[141] See id. at 9.
[142] See id.
[143] See id.
[144] See id.
[145] See Parent Exhibit LL, at 1.
[146] See id. at 1 – 2.
[147] See id.
[148] See id.
[149] See id.
[150] See id.
[151] See id. at 3.
[152] See id. at 3 – 4.
[153] See id.at 4.
[154] See id.
[155] See id. at 4 – 5.
[156] See id. at 5.
[157] See Parent Exhibit II, at 1.
[158] See id.
[159] See id.at 1 – 2.
[160] See Parent Exhibit II, at 2 – 3.
[161] See id. at 4.
[162] See id.
[163] See id.
[164] See id. at 5; Parent Exhibit R.
[165] See id.
[166] See id.
[167] See id.
[168] See id.
[169] See id. at 6.
[170] See id.
[171] See id.
[172] See id. at 7.
[174] See Parent Exhibit II, at 8 – 9, Parent Exhibit W.
[175] See Parent Exhibit II at 9.
[176] See id. at 10.
[177] See id. at 10 – 11.
[178] See id. at 11.
[179] See id.
[180] See id.at 12.
[181] See id.
[182] See id. at 12 – 13.
[183] See Parent Exhibit A.
[184] See Parent Exhibit D, at 4 - 5.
[185] See id.
[186] See Parent Exhibit K, at 1 – 2.
[187] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[188] See A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G., 459 F.3d 356 at 364).
[189] Frank G., 459 F.3d at 363-64; 20 U.S.C. § 1412(a)(10)(C)(iii).
[193] 20 U.S.C. § 1412(a)(10)(C)(iii)(I); see 34 CFR 300.148(d)(1).
[194] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004); see also R.B. and H.Z. ex rel. C.Z. v. New York City Dept. of Educ., 713 F. Supp. 2d 235, 248 (S.D.N.Y. 2010).
[195] Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412(a)(10)(C)(ii); 34 CFR 300.148.
[196] Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ., 550 F. Supp 2d 420, 437 (S.D.N.Y. 2008).
[197] See Parent Exhibit B. I will note that the Parent did not expressly state that the Student’s Private School tuition should be paid for at public expense in the letter, but I waive any such requirements given the FAPE violations in the case at hand.
[198] See Parent Exhibit HH.
[199] See Parent Exhibit D.
[200] See E.M. ex rel. N.M. v. New York City Dept. of Educ., 758 F. 3d 442, 452-454 (2d Cir. 2014); Mr. and Mrs. A., 769 F. Supp. 2d at 427. Connors v. Mills, 34 F. Supp. 2d 795, 804 (N.D.N.Y 1998).
[201] 8 N.Y.C.R.R. § 200.1(z).
[202] See 20 U.S.C. § 1415 (b)(1); 34 C.F.R. § 300.502(b); 8 N.Y.C.R.R. § 200.5(g)(1); D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d Cir. 2020) (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted).
[203] 546 U.S. 49, 60-61 (2005).
[204] 8 N.Y.C.R.R. § 200.5(g)(1)(i).
[205] 34 C.F.R. § 300.502(e)(1); 8 N.Y.C.R.R. § 200.5(g)(1)(ii); Letter to Kirby, 213 IDELR 233 (OSERS 1989).
[206] See Board of Education of the County of Nicholas v. H.A., 445 F. App’x 660 (4th Cir. 2011).
[207] See Letter of OSERS, 2002.
[208] Letter to Carroll, 68 IDELR 279 (OSEP 2016).
[209] 8 N.Y.C.R.R. § 200.5(g)(1)(iii).
[210] 34 C.F.R. § 300.502(b)(2)(i)-(ii); 8 N.Y.C.R.R. § 200.5(g)(1)(iv) (emphasis added).
[211] See D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020).
[212] Id.
[213] Letter to Baus, 65 IDELR 81 (OSEP 2015); see also Letter to Carroll, 68 IDELR 279 (OSEP 2016).
[214] See NYS Educ. Law § 4404(1)(c).
[215] See SRO-19-101.
[216] 8 N.Y.C.R.R. § 200.5(g)(2); 34 CFR § 300.502(d).
[217] Lyons v. Lower Merrion Sch. Dist., 2010 WL 8913276, at *3 (E.D. Pa. Dec. 14, 2010). See also S. Kingstown Sch. Comm. v. Joanna S., 2014 WL 197859, at *9 n.9 (D.R.I. Jan. 14, 2014), where the opinion that the regulation empowers hearing officers to solicit independent expert opinions was acknowledged, but disagreement was expressed that the regulation gives an IHO "the inherent power to make up remedies out of whole cloth", aff'd, 773 F.3d 344 (1st Cir. 2014) (cited in Application of a Student with a Disability, Appeal No. 21-021).
[218] See 20 U.S.C. § 1414(a)(2)(B)(ii); 8 NYCRR § 200.4(b)(4).
[219] Trumbull, 975 F.3d at 169.
[220] Id.
[221] Id., at 170.
[222] See 34 CFR § 300.303; 34 CFR § 300.301(c)(1)(i)-(ii);8 NYCRR § 200.4(b)(1).
[223] Trumbull, 975 F.3d at 170.
[224] Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir 1997) (citations omitted).
[225] NYS Educ. Law §§ 4401(1); 4402(4)(a); see also NYS Educ. Law § 4401(2); 8 NYCRR § 200.1(ww).
[226] Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 (5th Cir. 1986).
[227] “Special Transportation for Students with Disabilities,” VESID Mem. (Mar. 2005), available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf).
[228] See Donald B., 117 F.3d at 1375.
[229] See Parent Exhibit J, at page 2 and 19.
[230] See Parent Exhibit O, at 22.