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Case Number: 262689
Student’s Name[1]: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parent”)
Request Date/Date Complaint Filed: September 22, 2023
Date(s) of Hearing: November 28, 2023
December 18, 2023
Actual Record Closed Date: February 1, 2024
Date of Decision: February 2, 2024
Time Sensitive Yes
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 28, 2023
For the Student:
REDACTED (Parent’s Counsel)
REDACTED (Parent)
REDACTED (Program Director)
REDACTED (Albanian Interpreter)
For the Department of Education:
REDACTED (DOE Counsel)
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 18, 2023
For the Student:
Parent’s Counsel
Parent
For the Department of Education:
DOE Counsel
INTRODUCTION AND PROCEDURAL HISTORY
This matter concerns the Student, a student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). The Student’s eligibility for special education supports and services is not in dispute.
This matter comes before me on the Parent’s due process complaint, filed on or about September 22, 2023, concerning the 2023-2024 school year. (P-A) In the Parent’s due process complaint, the Parent alleges that the DOE failed to provide the Student with a free and appropriate public education (“FAPE”) for the 2023-2024 school year. (P-A) As relief, the Parent seeks direct payment/reimbursement for the Student’s 2023-2024 tuition at the private school (“Private School”) where the Student has been unilaterally placed, a bank of at-home Applied Behavior Analysis (“ABA”) hours for the Student, specialized transportation for the Student on a bus with nurse supervision, and an order directing the DOE to pay for the Student’s transportation using a vendor identified by the Parent if the DOE does not provide the Student with proper transportation. (P-A, p. 5) The due process complaint also sought “an order requiring the District to conduct all appropriate evaluations.” (P-A, p. 5)
I was appointed to this matter on October 6, 2023, and held a pre-hearing conference on November 1, 2023, during which I scheduled an impartial hearing for November 28, 2023.
The impartial hearing began on November 28, 2023. The DOE stated that it would not be providing any documentary evidence or calling any witnesses. (Tr. 17) DOE Counsel also stated that the DOE failed to meet Prong I of the Burlington-Carter test. (Tr. 17) I entered the Parent’s exhibits A through G into evidence without objection.[2] Both parties made opening statements. (Tr. 22-29) The DOE then rested, and the Program Director testified to the truth of his affidavit, which I entered into evidence as Parent’s Exhibit H. (Tr. 34) Parent’s Counsel asked several questions of the Program Director on direct, and the DOE cross-examined the Program Director. (Tr. 33-75) Parent’s Counsel then conducted re-direct of the Program Director. Next, the Parent testified to the truth of her affidavit, which I entered into evidence as Parent’s Exhibit I. (Tr. 81-18) Parent’s Counsel asked several additional questions of the Parent, and the DOE cross-examined the Parent. (Tr. 80-90) Parent’s Counsel asked several questions on redirect, and the DOE asked several questions based on Parent’s Counsel’s questions before I asked several questions of the Parent. (Tr. 89-98)
After I finished asking questions of the Parent, I told the parties that I needed additional information to complete the record in this matter. (Tr. 98) Specifically, I asked Parent’s Counsel to provide several documents that were discussed in the witnesses’ testimony, namely, the Student’s neuropsychological evaluation, and the Functional Behavior Assessment and Behavior Intervention Plan prepared by the Private School. I stated more generally that I would like Parent’s Counsel to provide me with “information that already exists regarding the student’s diagnosis and needs,” and then adjourned the matter to December 11, 2023 for me to enter any new exhibits provided by the Parent into evidence, address any objections by the DOE to those exhibits, and to hear closing arguments. (Tr. 100-107)
On December 11, 2023, Parent’s Counsel offered five additional documentary exhibits. (Tr. 114) DOE Counsel objected to two of the proposed exhibits, specifically, letters dated December 4, 2023. I overruled the objection, acknowledging the DOE’s concern but stating that the question went to weight and not to admissibility. (Tr. 115) I then entered Parent’s Exhibits J through N into evidence, which had been provided to the DOE and me by the Parent over email. (Tr. 115-118) Both parties presented closing arguments. (Tr. 119-141)
The record in this case closed on February 1, 2024. A list of the documentary evidence in this proceeding is appended to this decision.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law Art 89 § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. Part 200, and Section 504 of the Rehabilitation Act.
The Parent did not identify any specific regulatory requirement under Section 504 that is not subsumed under IDEA and that would merit separate analysis and discussion. Therefore, I find that the Parent’s Section 504 claims are subsumed within the framework of the IDEA, and I will not separately analyze the Section 504 claims raised in the complaint.
FINDINGS OF FACT
After considering all the evidence, as well as the closing arguments of both parties, my findings of fact are as follows:
The Student is currently [REDACTED] years old and is enrolled at the Private School, an “intensive 1:1 school program utilizing principles of Applied Behavior Analysis to teach children with special needs.” (P-F)
In a Confidential Psychological Report dated August 11, 2020, the Student was diagnosed with autism spectrum disorder, moderate intellectual disability, and language impairment. (P-L, p. 3) The Confidential Psychological Report also noted that the Student has a history of a language disorder and a seizure disorder. The Confidential Psychological Report recommended that the Student be placed in a “small, supportive, and structured classroom” in a specialized school environment. (Id.) The Confidential Psychological Report also recommended speech and language therapy (SLT), occupational therapy (OT), and Applied Behavior Analysis (“ABA”).[3] (Id.)
The Parent testified that the Student enrolled in a District 75 school for kindergarten during the 2017-2028 school year, where the Student was placed in a 6:1:1 class. (P-I, ¶ 4) The Parent testified that while enrolled in the 6:1:1 class, the Student “had frequent tantrums and would not focus” and had difficulty engaging in academics or related services. (P-I, ¶ 4)
The Parent removed the Student from the public school system for the 2020-2021 school year and placed the Student in a private, specialized school that incorporated some principles of ABA but did not provide constant ABA support. (P-I, ¶ 5) The Parent testified that at the end of the 2022-2023 school year, staff from the prior private school told the Parent that their program:
. . . did not offer enough behavior programming to help reduce [the Student’s] interfering behaviors. They told me that [the Student] needed a program that used constant ABA throughout the school day. In school, [the Student] would drop to the floor or try to elope when engaged in transitions at school or in the community. [The Student’s] education at [the prior private school] was a huge improvement over the 6:1:1 without any ABA intervention at all, but it still wasn’t enough.
(P-I, ¶ 5)
The Parent testified that during the time the Student was enrolled at the prior private school, the Student received home-based ABA services, which stopped in September 2023 because no provider was available. (P-I, ¶ 6)
The Parent and the Private School entered into a tuition agreement for the Student’s 2023-2024 school year on May 26, 2023. (P-C) Annual tuition for the Student’s 2023-2024 school year, which runs from July 5, 2023, through June 28, 2024, is $164,000.00. (P-C; D) The tuition agreement states that the Student’s program at the Private School “consists of 1:1 instruction, 30 hours per week, which is inclusive of special education and behavioral instruction, parent training, and related services at an appropriate frequency to meet the unique needs of the Student. Related services may include occupational therapy (“OT”), speech therapy (“SLT”), physical therapy (“PT”), and counseling services.” (Id.) The Parent made a $100.00 payment to the Private School on August 7, 2023. (P-D)
The Parent testified that she attended an IEP meeting for the Student on June 7, 2023, with a supervisor from the prior private school. The Parent testified that she and the supervisor told the CSE that the Student needed ABA intervention throughout the school day. (P-I, ¶ 7) The Parent testified that the CSE offered the Student “the same kind of program” that the Student had before the Student enrolled at the prior private school.
On June 16, 2023, the Parent sent a ten-day letter to the DOE notifying the DOE that she planned to enroll the Student at the Private School for the 2023-2024 school year. (P-B) The Parent noted that the Student is an extended school-year student, and that the Student’s IEPs “have always provided for specialized transportation with limited time and nursing supervision, since [the Student] is at risk for seizures.” (P-B) The Student began attending the Private School on July 6, 2023. (P-H, ¶ 20)
The Program Director testified about the Student’s program at the Private School. (P-H) The Program Director testified that the Student is placed in a class of 6 children, including the Student. (P-H, ¶ 21) At the Private School, the school day includes 1:1 and group instruction that “facilitates communication, social development, daily living skills, and academics.” (P-H, ¶ 12) The Program Director testified that during 1:1 instruction, students work on individualized programs with their 1:1 ABA instructors, and when the students are in group, they participate in art, music, movement, and read-aloud. (P-H, ¶ 12) The students also learn social studies and science in groups. (Id.)
The Private School designed an independent behavior intervention program for the Student that includes both an FBA and a BIP. (P-H, ¶¶ 13, 23) The Private School takes data about its students throughout the day and constantly assesses students’ progress so that students’ goals can be modified. (P-H, ¶ 13) The Private School holds three parent/teacher conferences per school year, and also provides parents with a weekly newsletter and a monthly data report. (P-H, ¶ 19)
The Program Director testified that the Private School also provides the Student with related services. The Student receives SLT on an individual basis once a week for 45 minutes and once a week for 45 minutes in a group of 4 children. (P-H, ¶ 28) The Student is “working on increasing the length of [the Student’s] utterances, using verbal language to self-advocate, improving receptive language skills, and engaging in reciprocal conversation.” (P-H, ¶ 28) The Student is currently being evaluated by an occupational therapist. (P-H, ¶ 29)
Both the Parent and the Program Director testified that the Student’s travel to and from the Private School has been problematic. The Parent testified:
The District had previously agreed to provide limited time transportation, but then failed to provide it. The bus has been taking hours to get to school and has not been picking [the Student] up when school ends at 3 pm. They have been picking [the Student] up at about 3:20 and can take up to 2 hours to get home. By direct travel, the trip can take between 30 and 50 minutes from our home to [the Private School]. In addition to the seizure risk, [the Student] is very upset by the trip. I have called Office for Pupil Transportation and they haven’t helped.
(P-I, ¶ 12)
The Program Director testified that the Student’s bus ride is “quite long” and that the Student comes off the bus “active, hyper.” (Tr. 35) The Program Director also testified that the bus is often “pretty late” after school—up to 30 minutes late. (Tr. 36) When the bus is late, the Student sometimes gets frustrated, and the Student will “yell, sometimes get out of [the Student’s] seat, sometimes lay on the floor.” (Tr. 37)
The Parent testified that she signed a contract with a private transportation company (“Transportation Company”) to provide the Student with private transportation to and from school, but the Parent has not been able to use the private transportation company’s services because it requires the Parent to accompany the Student and the Parent cannot currently do so because of her own health issues. (P-I, ¶ 13) The Transportation Company would provide the Student with transportation to and from school at the cost of $310.00 per day. (P-G)
CONCLUSIONS OF LAW AND ANALYSIS
The IDEA establishes a “substantive right to a ‘free appropriate public education’” for children with disabilities. Endrew F. v. Douglas Co. School Dist, 137 S. Ct. 988, 993 (2017) (quoting Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982)). The IDEA directs that, in general, an IHO’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). Under the IDEA and New York law, where there is a procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE. See 20 U.S.C. § 1415 (f)(3)(E)(ii); 8 N.Y.C.R.R. § 200.5(j)(4)(ii).
A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). “Not every procedural error will render an IEP legally inadequate.” M.H. v. New York City Dep’t of Educ., 685 F. 3d 217, 245 (2d Cir. 2012) (citation omitted). 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. 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).
In general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. School districts are not required to “maximize” the potential of students with disabilities, but must provide “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.
Throughout the hearing process, a school district bears the burden to show that it (1) complied with the IDEA’s procedural requirements; and (2) designed an IEP reasonably calculated to confer educational benefit on the student. C.B. ex rel W.B. v. N.Y. City Dep’t of Educ., 2005 U.S. Dist. LEXIS 15215, *37 (E.D.N.Y. June 10, 2005); 20 U.S.C. 1415(i)(2)(C)(iii); see also Walczak, 142 F.3d 119. However, “a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” N.Y. Educ. § 4404(1)(c).
Under the three-prong test established by the Supreme Court in Sch. Comm. of Burlington, Mass, v. Dep’t of Educ. of Mass, 471 U.S. 359 (1985) and Florence County. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), parents who unilaterally place their children in private school are entitled to reimbursement from the school district if the services offered by the school district were inadequate or inappropriate, the services selected by the parent(s) were appropriate, and equitable considerations support the parent’s claim. See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert. denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 U.S. LEXIS 11520 (Oct. 15, 2007). The first prong of the Burlington-Carter test encompasses whether the student’s IEP provided a FAPE. Brock v. Dutton, 2015 U.S. Dist. LEXIS 44254, *14 (S.D.N.Y. March 31, 2015).
The Parent has the burden of proving that the unilateral placement was appropriate. To meet this burden, the Parent must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007) (quoting Frank G. v. Bd. of Educ., 459 F.3d at 364-65). The private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.” Frank G. v. Bd. of Educ., 459 F.3d at 364.
The final prong of the Burlington-Carter test involves the balancing of the equities. 20 U.S.C. § 1412(a)(10)(C)(iii). Reimbursement may be limited or denied if the parent failed to act reasonably, did not cooperate with the DOE’s attempts to evaluate the student, or failed to provide proper notice of the parent’s rejection of the Student’s placement. See 20 U.S.C. § 1412(a)(10)(C)(iii). When considering whether the parent has shown that the equities weigh in the parent’s favor, it is important to consider “whether the [parent] cooperated with the district in its efforts to meet its obligations under the IDEA.” C.L v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014).
Burlington-Carter Test Prong I
As to Prong I of the Burlington-Carter test, the DOE failed to meet its burden at hearing. The Supreme Court has found a reviewing court may expect 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.” Endrew F. v. Douglas County School District, 137 S.Ct. 988, 1002 (2017). In this case, the DOE provided no witness testimony, offered no documentary evidence, and conceded on the record that it failed to meet its burden under Prong I. (Tr. 17) Therefore, I cannot find that the DOE offered the Student a FAPE for the 2023-2024 school year.
Burlington-Carter Test Prong II: The Appropriateness of the Parent’s Unilateral Placement
A unilateral private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. The relevant standard to apply is whether “the unilateral private placement . . . provides educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo, 489 F.3d at 115 (quotations omitted). No single factor is dispositive in this analysis. Id. The private placement does not necessarily need to provide certified special education teachers or every special service that could assist in maximizing the Student’s potential. Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 2020 U.S. Dist. LEXIS 16007 (S.D.N.Y. 2020), aff’d 2020 U.S. App. LEXIS 39739 (2d Cir. 2020) (citation omitted). Moreover, parental placements are not subject to the same mainstreaming requirements as a school district placement. Frank G. v. Bd. of Educ., 459 F. 3d at 364.
In this case, the Parent submitted the Parent’s tuition agreement with the Private School, the Student’s 2023-2024 schedule at the Private School, the Private School’s Program Description, the FBA and BIP created by the Private School for the Student, and the testimony of the Program Director and the Parent. (P-C; E; F; H; I; M; N)
The Program Director testified about the Private School’s program for the Student, as well as the Student’s progress. (P-H) The Program Director is a Doctor of Psychology, a doctorate level Board Certified Behavior Analyst (“BCBA”), a New York State-Certified Licensed Behavior Analyst (“LBA”), a New York State certified special education teacher, and a crisis prevention intervention trainer. (P-H, ¶ 1) The Program Director has worked in the field of autism and developmental disabilities for over 20 years. (Id.)
The Program Director testified that when the Student first began attending the Private School, the Student “was resistant to interacting with instructors, refused to give up [the Student’s] iPad, and would scream loudly when demands were placed on [the Student] to transition, give up desired items, or follow instructions. Screams were often accompanied by [the Student] squeezing [the Student’s] fingers tightly and sometimes dropping to the floor.” (P-H, ¶ 22) The Student’s instructors used the Student’s BIP to reduce the Student’s problematic behaviors, and the Student’s behavior has improved. (P-H, ¶¶ 23, 24) The Program Director testified that the Student now can often “complete 3-6 simple tasks prior to working on 1 more difficult task.” (P-H, ¶ 24) The Student is now able to participate in class instruction, gym, and related services. (Id.)
The Parent testified that the Student has made progress in the relatively short period of time the Student has been attending the Private School. (Tr. 94) The Parent testified that since the Student has been attending the Private School, the Student has developed new tools to manage the Student’s behavior. The Parent testified, “[u]sually, when [the Student] screams, now what [the Student] does is [the Student] does is [the Student] tells herself, take a deep breath, and [the Student] starts counting until [the Student] calms down. (Tr. 94)
As noted earlier, the DOE did not object to the sworn testimony of the Program Director or the Parent. There is nothing in the record that would undermine or controvert the testimony given by either witness, and I therefore credit both witnesses’ testimony in full.
The DOE argued that the Parent did not meet her Prong II burden because the Private School “does not provide academic programming” and the Parent did not provide “evidence as to the frequency or subject matter of such academics.” (Tr. 121) The DOE’s argument ignores the evidence presented by the Parent about the Private School’s program. In addition, the DOE ignores the Student’s unique needs, the severity of the Student’s interfering behaviors, and their impact on the Student’s ability to access academic instruction.
The Program Director acknowledged that “[i]n school, implementation of [the Student’s] behavior plan interferes with the amount of time available for pre-academic and academic work, as it is necessary to reduce [the Student’s] screaming behavior in order for [the Student] to remain in a classroom.” (P-H, ¶ 30) But the Program Director also testified that the Private School provides academic instruction on a 1:1 basis, and the Program Description refers to the Private School’s instruction in language and communication skills and academics. The Program Description states that students are “taught skills ranging from pre-academic language and learning skills to Common Core standards academics, depending on their needs.” (P-F) In addition, the Parent provided the Student’s 2023-2024 schedule at the Private School, which provides a detailed breakdown of the Student’s school day. (P-E) The schedule contains includes blocks for direct instruction and group instruction—which, as the Program Director testified, can include academic instruction. (P-E; H, ¶¶ 24-26; Tr. 75-77) Ultimately it is clear from the evidence here presented that without the type of intensive ABA provided by the Private School, the Student will not be able to access any academic instruction at all.
I find that the Parent has met her burden to prove that the private program offers an educational program that meets the Student’s needs under Prong Two of the Burlington/Carter standard. The weight of the evidence establishes that the Student’s individual special education needs are being addressed by the Private School and that the instruction offered is “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364. The Private School’s independent behavior intervention plan—including an FBA and a BIP—shows that the Private School has significantly individualized the Student’s instruction to address the Student’s needs. The Program Director provided multiple examples of the individualized behavioral interventions that the Private School uses with the Student, including token training. (Tr. 74-75) The Program Director emphasized that individualized behavioral interventions are used “all day, every day” with the Student. (Tr. 75) When a teacher at the unilateral placement adapts instruction (for example, working one-on-one with the student, giving the student extra time to complete work, allowing the student to work in isolated areas of the classroom, adapting tests to allow the student to take them orally), these factors weigh in favor of the appropriateness of the parent’s unilateral placement. Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 365-66 (2d Cir. 2006).
Burlington-Carter Test Prong III: Equitable Factors
Equitable factors are relevant to fashioning relief under the IDEA. Burlington, 471 U.S. at 374; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 (2d Cir., 2014); M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000) (citations omitted); see also Carter, 510 U.S. at 16 (“Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable”). Reimbursement of private school tuition 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. 20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 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 U.S. Dist. LEXIS 11354 (S.D.N.Y. Feb. 4, 2008); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 (S.D.N.Y. 2005).
The IDEA allows that reimbursement 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 [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” 20 U.S.C. § 1412(a)(10)(C)(iii)(I); see 34 C.F.R. § 300.148(d)(1). This statutory requirement “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools.” Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004).
In this case, the record does not establish that the Parents “acted with the requisite level of unreasonableness or misconduct that reimbursement should be denied on equitable grounds.” Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ., 550 F. Supp 2d 420, 437 (S.D.N.Y. 2008). There is nothing in the hearing record to suggest, let alone demonstrate, that the Parent interfered in any manner with the CSE’s evaluation of the Student or prevented it from providing the Student with a FAPE for the 2023-2024 school year. The Parent testified that she attended the Student’s IEP meeting on June 7, 2023, has always attended IEP meetings for the Student, and has always allowed the DOE to evaluate the Student when the DOE has sought to evaluate the Student. (P-I, ¶¶ 7, 18) Furthermore, the DOE has raised no argument that the equities would not weigh in favor of the Parent. The record supports a finding that the Parents cooperated fully with the DOE and timely sent the requisite ten-day notice to the DOE in advance of the commencement of the 2023-2024 school year.
In addition, the record clearly establishes that the Parent incurred an obligation to pay the Private School the aggregate tuition sum of $164,500.00, of which the Parent has paid $100.00. (P-C; D) Given my finding that the Private School is the appropriate placement for the Student, the Parent is entitled to an award for tuition funding for the Student’s attendance at the Private School for the 2023-2024 school year, to be paid directly to the Private School, as well as reimbursement of the $100.00 the Parent has already paid. See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453-54 (2d Cir. 2013) (“direct payment fits comfortably within the Burlington-Carter framework: like reimbursement, direct payment to the private school that provided the required educational program ‘merely requires [the school district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.’”) (quoting Burlington, 471 U.S. at 370-71). Direct tuition funding is relief encompassed by the equitable remedial powers inherent in the IDEA. See, e.g., Mr. and Mrs. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011).
While the amount of tuition at the Private School is not insignificant, I do not find that the tuition costs are excessive or unreasonable, given the Private School’s educational program for the Student. Carter, 510 U.S. 7, 15-16. After considering the entire record presented at hearing, I find that the equities support the Parent’s claim for direct funding and tuition reimbursement.
OTHER RELIEF SOUGHT
In addition to prospective tuition funding and tuition reimbursement for the Student’s attendance at the Private School, the Parent seeks additional relief that I will discuss below.
At-Home ABA Services
The Parent also requested a home-based ABA program consisting of a bank of hours for ABA instruction, oversight, and parent training. (P-A, p. 5) The Program Director testified “[d]ue to the frequency and intensity of teaching trials required for [the Student] to learn new skills, it is clear that [the Student] requires at least 10 hours of ABA therapy at home in order to practice the skills [the Student] is learning in school. The Student also needs to have the Student’s behavior program implemented as much as possible during [the Student’s] waking hours so that [the Student] can make progress in reduction of [the Student’s] maladaptive behaviors in acquisition of functional behaviors. This program requires coordination with the school for one hour a month and include [sic] the Parent.” (P-H, ¶ 30)
The DOE argued that I should deny the Parent’s request for home-based ABA because the Parent introduced insufficient evidence regarding “the costs of the ABA sought or the basis of the recommendations for the number of hours of home-based ABA therapy,” citing E.M. v. New York City Dep’t of Education, 758 F. 3d 442. (Tr. 121)
An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).
Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child’s education.” Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008) (citations omitted). Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015). Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.” Reidv. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) (emphasis in original). An award of compensatory education “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid, 401 F.3d at 518, 524. Compensatory education awards may include reimbursement for out-of-pocket educational expenses paid by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate alternative. Foster v. Bd. Of Educ., 611 Fed. App’x 874, 878-79 (7th Cir. 2015); Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 277-78 (3d Cir. 2014).
In this case, the DOE conceded that it has failed to provide the Student with a FAPE for the 2023-2024 school year. E.M. is not applicable to the issue of home-based ABA services provided as compensatory relief. E.M. addressed whether a parent’s contract with the private school where she had unilaterally placed her child was sufficient to establish standing to sue for tuition reimbursement under the IDEA, in light of the fact that the parent had not made any payments to the private school and the contract contained several blank spaces. 758 F. 3d 442, 457-58. The Second Circuit held that the parent did have standing. 758 F. 3d 442, 459-60. There is no discussion in E.M. regarding services provided as compensatory relief for a FAPE violation.
As the Southern District recently held in a case addressing home-based ABA services, “both educational placement and additional services may be necessary to provide a particular student with a FAPE.” V.W. v. New York City Dep’t of Educ., 2022 U.S. Dist. LEXIS 147630 (S.D.N.Y. Aug. 17, 2022). The Program Director is familiar with the Student and is professionally qualified to make a recommendation regarding the Student’s need for at-home ABA therapy. The Parent testified that at-home therapy has helped the Student to access the Student’s education in the past. Accordingly, I will order a bank of 430 hours of ABA therapy, reflecting a program of 10 hours of at-home ABA therapy per week between October 2023 and June 2024, as well as 9 additional hours for the BCBA to provide monthly parent counseling and training.
Transportation
The IDEA 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.” Donald B. v. Board of Sch. Comm’rs, 117 F.3d 1371, 1374 (11th Cir. 1997) (citing 20 U.S.C. § 1401(a)(17); see also N.Y. Educ. Law §§ 4401(4), 4402(4)(d). Transportation may be deemed necessary “if in its absence a disabled child in private school would be denied ‘a genuine opportunity for equitable participation in [a special education program]’, . . . or special education program benefits “comparable in quality, scope, and opportunity for participation . . . [to those provided for] students enrolled in public schools’” Donald B., 117 F.3d at 1375 (internal citations omitted).
In addition, New York 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.” Education Law §§ 4401(1), 4402(4)(a); see also Education Law § 4401(2); 8 N.Y.C.R.R. § 200.1(ww).
The due process complaint seeks funding for the Student’s placement at the Private School for the 2023-2024 school year and specialized transportation for the Student on a bus with nurse supervision, as well as an order directing the DOE to pay for the Student’s transportation using a vendor identified by the Parent if the DOE does not provide the Student with proper transportation. (P-A, p. 5)
The Parent provided a contract signed by the Parent with the Transportation Company as an option for the Student to travel to and from school if the DOE cannot provide the Student with limited-time travel. (P-G) However, the Parent testified that she had not availed herself of the Transportation Company’s services and would not be able to until she resolved a health problem—and she also testified that the Student’s private nurse could not travel with the Student in the private transportation company’s vehicles. (P-G; Tr. 79-80; 81) The Parent did not clearly state when she anticipated her health problem would be resolved.
As I am finding the Private School to be the appropriate placement, I will order that the DOE provide the Student with transportation to and from the Private School for the 2023-2024 school year. Regarding the Student’s specific needs, the DOE’s failure to consistently provide the Student with limited-time travel to date, and the Parent’s request to use the contract at Parent’s Exhibit G, it is far from clear that the contract with the Transportation Company will solve the family’s problem. Moreover, because neither party entered the IEP into evidence in this matter, I do not know precisely how the Student’s transportation mandate is currently phrased. Accordingly, I will order the DOE to provide the Student with appropriate limited-time travel, but I will allow the Parent to obtain appropriate private transportation for the Student if the DOE fails to do so.
Evaluations
In the Parent’s due process complaint, the Parent included an order “requiring the District to conduct all appropriate evaluations.” (P-A, p. 5) Parent’s Counsel did not raise this request in her opening or closing argument, and she provided no evidence regarding what evaluations would be appropriate for the Student. The only time evaluations were discussed on the record occurred when I asked Parent’s Counsel to provide additional information regarding the Student’s needs. The only evaluation before me is the 2020 Psychological Report, although there is evidence that the Student has received medical care since that time. (P-J; K; L)
Given the Student’s severe disability and the triannual evaluation requirement contained in the IDEA and New York State law, the lack of more recent evaluative data for this Student is unacceptable. I will order a new neuropsychological evaluation of the Student, even though it was not explicitly requested by the parties as relief. This is well within my authority because the IDEA provides broad discretion to hearing officers and courts to grant “such relief as ... is appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii); see also B.D. v. Dist. of Columbia, 817 F.3d 792, 797-98 (D.C. Cir. 2016) (holding that both hearing officers and courts have far-reaching remedial power under the Act). “Supreme Court decisions interpreting this provision emphasize the plain meaning of this phrase, noting the breadth of discretion given to fashion appropriate relief in each case.” Maysonet v. N.Y.C. Dep't of Educ., 2023 U.S. Dist. LEXIS 44769, at *16-17 (S.D.N.Y. Mar. 16, 2023). According to the Second Circuit, IHOs have broad authority regarding relief, “restrained only by the Supreme Court’s directive that ‘the relief is to be appropriate’ in light of the purpose of the Act.” L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 125 (2d Cir. 2016) (emphasis added) (citation omitted). Additionally, “[a]lthough Part B does not address the specific remedies an impartial hearing officer may order upon a finding that a child has been denied FAPE, [the United States Department of Education’s Office of Special Education Program’s] position is that, based upon the facts and circumstances of each individual case, an impartial hearing officer has the authority to grant any relief he/she deems necessary…to ensure that a child receives the FAPE to which he/she is entitled.” Letter to Kohn, 17 IDELR 522, OSEP 1991. Courts are “not limited to whichever terminology Parents may have used in requesting their relief.” Greenwich Bd. of Educ. v. G.M., No. 3:13-cv-00235 (CSH), 2016 U.S. Dist. LEXIS 81008, at *61 (D. Conn. June 22, 2016) (citing T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170 (2d Cir. 2014)).
Attorneys’ Fees
The Parent also requested attorneys’ fees and expenses in the Parent’s due process complaint. (P-A, p. 5) The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction. 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006). Only a court can determine if a party is entitled to attorneys’ fees and I would be exceeding the scope of my authority by determining that the Parent is the prevailing party entitled to costs. Therefore, to the extent that the Parent is seeking reimbursement and/or payment of attorneys’ fees and costs, the Parent’s request is denied.
I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.
ORDER
Based above the above findings of fact, it is hereby:
- ORDERED, that the DOE shall reimburse the Parent for the $100.00 the Parent paid to the Private School for the Student’s 2023-2024 tuition; it is further
- ORDERED, that the DOE shall directly fund the remainder of the Student’s 2023-2024 tuition at the Private School in the amount of $164,400.00, within 30 days of this order; it is further
- ORDERED, that the DOE shall fund a bank of 430 hours of at-home ABA services by a provider of the Parent’s choice as compensatory relief, within 30 days of receiving appropriate invoices; it is further
- ORDERED, that the DOE shall fund an additional 9 hours of parent counseling and training to be provided by the ABA provider chosen by the Parent, within 30 days of receiving appropriate invoices
- ORDERED, that the bank of ABA services ordered above shall not have an expiration date; it is further
- ORDERED, that the DOE shall conduct a neuropsychological evaluation of the Student within 15 days of this order; it is further
- ORDERED, that if the DOE does not conduct a neuropsychological evaluation of the Student within 15 days of this order, the DOE shall fund a neuropsychological evaluation of the Student by a provider of the Parent’s choosing, at the provider’s regular market rate, within 30 days of receiving appropriate invoices; it is further
- ORDERED, that the Parent shall provide any reports generated by the neuropsychological evaluation ordered above to the DOE within 15 days of receiving the reports; it is further
- ORDERED, that the DOE shall immediately provide the Student with limited-time (60 minutes or less) round-trip transportation with a nurse to and from the Private School for the 2023-2024 school year; it is further
- ORDERED, that if the DOE cannot provide the Student with a nurse to accompany the Student during the Student’s travel, the DOE shall fund a private nurse of the Parent’s choosing to accompany the Student to and from school, at the nurse’s regular market rate, within 30 days of receiving appropriate invoices; it is further
- ORDERED, that if the DOE fails to provide the Student with limited-time travel (60 minutes or less) both to and from school with a nurse for two days in a row, the DOE shall fund the Student’s travel to and from the Private School using a private transportation provider of the Parent’s choosing, at the company’s market rate, within 30 days of receiving appropriate invoices.
SO ORDERED.
DATED: February 2, 2024
Michele Host (signed electronically)
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.
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
Document | Date | Pages | |
Impartial Hearing Request | 9/22/2023 | 5 | |
10 Day Letter | 6/16/2023 | 2 | |
Private School Contract | 5/26/2023 | 6 | |
Affidavit of Payment and Proof of Payment | 8/3/2023 | 2 | |
Private School Schedule | 2023-2024 | 1 | |
Program Description | 2023-2024 | 1 | |
Agreement for Rideshare Vouchers | 9/29/2023 | 3 | |
Affidavit of Program Director | 2023 | 6 | |
Affidavit of Parent | 2023 | 5 | |
Letter from MD regarding transportation | 12/4/2023 | 2 | |
Letter from MD regarding ABA | 12/4/2023 | 2 | |
Psychological Report | 8/11/2020 | 5 | |
FBA | 7/2023 | 1 | |
Behavior Intervention Plan | 7/2023 | 22 |
DOE EXHIBITS
Exhibit | Document | Date | Pages |
NONE |
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] The Parent’s exhibits are cited as “P” followed by a letter, and the transcript is cited by “Tr.” followed by a page number.
[3] ABA is an “intensive one-on-one therapy that involves breaking down activities into discrete tasks and rewarding a child’s accomplishments.” R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 176 (2d Cir. 2012) (internal quotation marks omitted).