STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-189
Application of a STUDENT WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Gutman Vasiliou, LLP, attorneys for petitioner, by Mark Gutman, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Gail M. Eckstein, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the full costs of her son's tuition at the Saint Paul's Autism Research & Training Academy (SPARTA) for the 2024-25 school year. The appeal must be sustained.
II. Overview—Administrative Procedures
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
During the 2022-23 school year, the student, then 11-years-old and found eligible for special education as a student with autism, attended a 12-month placement in a sixth grade 6:1+1 special class at a district public school (Dist. Exs. 7 at p. 1; 8 at p. 1). There the student received related services of occupational therapy (OT) and speech-language therapy and was supported by a health paraprofessional throughout the day(id.). A psychological evaluation conducted in October 2022 indicated the student presented with significant aggressive behaviors towards himself and others," such that he was reported to have had bruises on his face from self-injurious behaviors (Dist. Exs. 7 at p. 1; 8 at pp. 1, 2).[1] On October 21, 2022, the student's teacher completed a teacher educational update which reported that the student required assistance for many activities of daily living, was nonverbal, and had a grade equivalent of "Pre-K" in reading and math (see Dist. Ex. 15 at pp. 1-2).
According to a January 11, 2023 prior written notice, a CSE convened on October 28, 2022, found the student continued to be eligible for special education as a student with autism, and developed an IEP for the student with a projected implementation date of January 26, 2023 (Dist. Ex. 5).[2] The district notified the parent of the recommendations made by the October 2022 CSE, including that the student attend a 6:1+1 special class in a district specialized school, with related services such as OT and speech-language therapy, as well as school nurse services, parent counseling and training, an assistive technology device identified as a static-display speech generating device, and the support of an individual health paraprofessional services (see Dist. Ex. 5 at pp. 1-2). On January 19, 2023, the district notified the parent that the CSE was going to convene to discuss the student's educational needs and the parent was encouraged to attend (see Dist. Ex. 3). On January 20, 2023, the parent privately obtained a SETSS-ABA assessment of the student, which recommended that the student receive 40 hours per week of individual in-school ABA services; 20 hours per week of individual home-based ABA services; four hours per month of Board Certified Behavior Analyst (BCBA) supervision at home; two hours per month of parent training by a BCBA; door-to-door transportation; a formal functional behavioral assessment (FBA) and behavioral intervention plan (BIP); and a formal assistive technology evaluation (Parent Ex. B at pp. 1, 7).[3]
The district completed a social history update on January 27, 2023, which reflected that the parent was requesting a reevaluation due to significant aggressive behaviors that were a danger to the student and others and indicated that "[[the parent] also fe[lt] [the student] need[ed] more of an individual support, and she has not seen educational progress over the years" (Dist. Ex. 11 at p. 1). A CSE convened on February 1, 2023 to develop an IEP for the student (Dist. Ex. 1).[4] The February 2023 CSE recommended that the student receive: three periods per week of adapted physical education; placement in a 6:1+1 special education classroom for 10 periods per week in English Language Arts (ELA), five periods per week in math, five periods per week in social studies, and five periods per week in sciences; three 30-minute sessions per week of individual OT; individual school nurse services, as needed; four 30-minute sessions per week of individual speech-language therapy; and daily individual paraprofessional services for health and seizures (id. at pp. 20-21). The CSE further recommended that individual, static-display, speech generating device be integrated into the student's school program daily, that the parent receive four 60-minute sessions per year of group parent counseling and training, and that the student receive the same program for the 12-momth portion of the school year (id. at pp. 21-22). In addition, the CSE recommended that the student's educational program be delivered at an "[a]pproved [n]on-[p]ublic [s]chool" (id. at p. 26).[5]
The parent filed a due process complaint notice on February 24, 2023 [2023 due process complaint] asserting a denial of a free appropriate public education (FAPE) for the 2020-21, 2021-22, and 2022-23 school years and was initially granted interim relief of "30 hours [per week] of push-in ABA and 20 hours [per week] of home-based ABA" (Dec. 5, 2023 IHO Decision at pp. 1, 4-5; Parent Ex. M ¶ 4). On April 13, 2023, the IHO overseeing the proceeding regarding the 2023 due process complaint notice (IHO I) ordered the district to directly fund: 40 hours per week of push-in ABA services by an independent provider chosen by the parent; 20 hours per week of home-based ABA by an independent provider chosen by the parent; four hours per month of supervision by a BCBA chosen by the parent; and two hours per month of parent counseling and training, with a notation that "[t]he ABA therapy shall terminate upon the issuance of a Findings of Fact and Decision" (Dec. 5, 2023 IHO Decision at pp. 4-5). The IHO also ordered an independent educational evaluation (IEE) consisting of a neuropsychological evaluation at a rate of $6,000 and an assistive technology evaluation at a rate of $3,000 (id.). The student began receiving ABA and BCBA services in June of 2023 (Parent Ex. O ¶ 19). The assistive technology evaluation was completed on June 5, 2023 and the neuropsychological evaluation was completed on September 5, 2023 (Dist. Exs. 12; 14). IHO I issuing a final decision , dated December 5, 2023, which held that the district denied the student a FAPE for the 2020-21, 2021-22, and 2022-23 school years and directed the district to refer the student for placement in a nonpublic school; convene the CSE to recommend a program that included two 45-minute sessions per week of OT, four 45-minute sessions per week of speech-language therapy, two 45-minute sessions per week of parent-counseling and training, and specific assistive technology devices; fund 40 hours per week of push-in SETSS-ABA instruction and 10 hours per week of home-based SETSS-ABA "by an independent provider of the parent's choosing until such time as the student is placed in an approved non-public school with SETSS-ABA services and infused instruction;"; fund an FBA at the rate of $4,125, a BIP at the rate of $1,375; as well as a feeding evaluation ($2,700), an OT evaluation ($2,800), a speech-language evaluation ($2,500), and a physical therapy (PT) evaluation ($2,500); and to fund compensatory education in a bank of services that will not expire (Dec. 5, 2023 IHO Decision at pp. 33-36; Parent Exs. A at p. 2; M ¶ 11 Parent Exhibit List).[6],[7] The parent testified that IHO I "ordered the [d]istrict to look for an ABA placement so [the student] c[ould] be in a school setting that was appropriate, but the [d]istrict never offered… any placements" (Parent Ex. M ¶ 13).
During the student's 2023-24 (seventh grade) school year, the student continued in a district 6:1+1 special class with an individual paraprofessional and related services (Dist. Ex. 10 at p. 2; see Dist. Ex. 1 at pp. 20-21). Additionally, as noted above, the student began receiving ABA services in June 2023, which the provider testified started as "30 hours of ABA in school and 20 hours of ABA at home," but was lowered to 10 hours of ABA at home with the provider making up the difference using compensatory hours (Parent Ex. O ¶¶19, 26). The parent filed a due process complaint notice on January 3, 2024 asserting that the district denied the student a FAPE for the 2023-24 school year and the hearing in that matter was conducted in February 2024 and was presided over by another IHO (IHO II) (Mar. 11, 2024 IHO Decision).
The district completed a social history update on January 24, 2024, documenting that the student's parent reported that the student could "become very aggressive where he would often punch his head, bite others, bang his head to the wall and hurt family members where they become bruised" (Dist. Ex. 10 at p. 2). The district performed a classroom observation on January 25, 2024, and the resultant report indicated the student "was observed to have bruises on his face due to self-injurious behaviors" and that "[h]e continue[d] to present with significant cognitive, behavioral and language deficits that [were] impacting his overall functioning" (Dist. Ex. 9 at pp. 1-2).
According to a February 15, 2024 prior written notice, a CSE convened on February 1, 2024 and found the student continued to be eligible for special education as a student with autism (Dist. Ex. 6 at p. 1).[8] The prior written notice identified the evaluations used to create the February 2024 IEP and noted that "[h]ome/[h]ospital [i]nstruction was considered but rejected as this setting would not provide [the student] with adequate opportunities for peer socialization and interaction" (id. at p. 4). The prior written notice also identified the February 2024 CSE's recommendations for the student including: three periods per week of adapted physical education; a 6:1+1 special class for math (five periods per week), ELA (10 periods per week), social studies (five periods per week), and sciences (five periods per week), with related services of four 45-minute sessions per week of individual speech-language therapy, three 30-minute sessions per week of individual OT, as well as full-time individual health paraprofessional services for seizures, an assistive technology device identified as a dynamic-display speech generating device to be used daily at school and at home, and four 60-minute sessions per year of parent counseling and training, (id. at pp. 1-4).
On March 11, 2024, IHO II issued a decision finding that the district denied the student a FAPE for the 2023-24 school year because it did not identify a nonpublic school placement for the student in accordance with his IEP and the parent established that SPARTA was an appropriate unilateral placement for the student (Mar. 11, 2024 IHO Decision at p. 8). IHO II ordered the district to fund the following services provided by SPARTA: 20 hours per week of individual home-based ABA; 40 hours per week of in-school individual ABA; and OT, speech-language therapy, parent counseling and training, paraprofessional services, and school nurse services at the same frequencies as recommended in the student's February 2023 IEP; along with transportation to and from the student's home (id. at pp. 9-10).
On April 4, 2024, the district notified the student's parent that a CSE meeting was scheduled for April 11, 2024 to discuss the student's educational needs and that the parent was encouraged to attend (see Dist. Ex. 4). A CSE convened in April 2024 and finding the student eligible for special education as a student with autism, created an IEP for the student (Dist. Ex. 2).[9] The April 2024 CSE recommended that the student receive: three periods per week of adaptive physical education; instruction in a 6:1+1 special education classroom for math (five periods per week), ELA (10 periods per week), social studies (five periods per week), and sciences (five periods per week); placement in an "[a]pproved [n]on-[p]ublic [s]chool"; related services consisting of three 30-minute sessions per week of individual OT and four 45-minute sessions per week of individual speech-language therapy; daily individual paraprofessional services for health and seizures; and an assistive technology device identified as an individual dynamic-display, speech generating device (id. at pp. 18-19, 24).[10] The CSE also recommended four 60-minute sessions per year of group parent counseling and training for the parent and special transportation accommodations for the student (id. at pp. 19, 24).
On June 14, 2024, the parent notified the district that the student was attending SPARTA (Parent Ex. L at p. 1). The parent indicated that there were no nonpublic school that could provide the student with 1:1 ABA support offered by the district and stated that since the district failed to provide the student with an appropriate school placement, the parent intended to place the student at SPARTA and would be seeking funding from the district for the costs of the student's tuition, related services, transportation, and home-based ABA (id.).
On June 20, 2024, the parent signed a contract with SPARTA for the student's attendance for the 2024-25 school year (Parent Ex. K at pp. 1, 4). According to the contract, SPARTA was to provide the student with the following program for the 2024-25 school year: 20 hours per week of home-based ABA at a rate of $155 per hour; 40 hours per week of center-based ABA at a rate of $155 per hour; four hours per month of parent training by a BCBA at a rate of $245 per hour; three 30-minute sessions per week of OT at a rate of $250 per hour; four 30-minute sessions per week of speech-language therapy at a rate of $250 per hour; nursing services at a rate of $100 per day; and transportation to and from SPARTA at a rate of $100 per day (id. at pp. 1-2). The contract stated that "[t]he obligation to pay fees is unconditional and cannot be apportioned or mitigated" (id. at p. 2). The contract further stated that the parents had advised SPARTA that they expected to continue to work with the "district to identify an appropriate placement for their child" and that "if the parent accept[ed] a placement offer from their public school district, they may withdraw their child from SPARTA by September 1, 2024 and they will be relieved of all further obligations under this Contract" (id. at p. 3).
A. Due Process Complaint Notice
In a due process complaint notice dated June 28, 2024, the parent alleged that the district denied the student a FAPE for the 2024-25 school year (Parent Ex. A). The parent asserts that the district denied the student a FAPE for the 2024-25 school year by: denying the parent the opportunity to meaningfully participate in the development of the student's IEP by ignoring the private evaluators' recommendations for ABA services; restating prior annual goals instead of developing meaningful and measurable goals in the April 2024 IEP; failing to implement the IEP or identify a nonpublic school; failing to provide appropriate related services to the student as the student was not making progress; and failing to address the student's behavioral needs (id. at p. 3). As relief, the parent requested district funding for SPARTA consisting of 40 hours of in-school ABA, 20 hours of home-based ABA, speech-language therapy, OT, parent counseling and training, school nurse services, paraprofessional services, and transportation (id. at p. 4).
B. Impartial Hearing Officer Decision
An impartial hearing convened before a third IHO (IHO III) with the Office of Administrative Trials and Hearings (OATH) on January 7, 2025 and concluded the same day (Tr. pp. 1-48).[11]
In February 2025, IHO III requested, via emails, that the parent provide answers to a number of questions and the attorney for the parent provided answers to IHO III's questions, along with additional evidence consisting of the student's daily schedule at SPARTA for the 2024-25 school year (IHO Exs. II-IV).
In a decision dated February 24, 2025, IHO III found that the district denied the student a FAPE for the 2024-25 school year by failing to implement the April 2024 IEP (IHO Decision at p. 6). IHO III next determined that the parent established that SPARTA was an appropriate unilateral placement for the student's 2024-25 school year (id. at p. 8). Regarding equitable considerations, IHO III found that the parent worked with the district and timely served the district with a 10-day notice and that, therefore, equities favored the parent (id. at pp. 8-9).
IHO III noted that after the conclusion of the impartial hearing, IHO III still had some questions regarding the student's school schedule, so IHO III emailed the parent's attorney to obtain additional information (IHO Decision at pp. 9-10). The parent's attorney submitted the requested information and, based on this additional information, IHO III then determined that the student was only attending SPARTA for 27.5 hours per week and, therefore, IHO III reduced the in-school ABA tuition award from 40 hours per week to 27. 5 hours per week (id. at pp. 10-11). IHO III found the parent's ABA evaluator to not be credible for not having included any studies or articles supporting her recommendation for 40 hours per week of in-school ABA instruction, so IHO III did not give any weight to the ABA evaluator's SETSS-ABA assessment (id. at p. 11). IHO III further determined that 20 hours per week of home-based ABA instruction was in excess of a FAPE and denied the parent's request for funding for 20 hours per week of home-based ABA instruction (id. at pp. 11-12). IHO III also reduced the amount of parent counseling and training from four times per month to four times per year as recommended in the student's February 2023 and April 2024 IEP (id. at p. 13).
IV. Appeal for State-Level Review
The parent appeals, alleging that IHO III erred in reducing the award of in-school ABA instruction from 40 hours per week to 27.5 hours per week, in denying funding for 20 hours per week of home-based ABA instruction, and in reducing the parent counseling and training from four times per month to four times per year based on information obtained after the conclusion of the impartial hearing. The parent also appeals from IHO III's credibility determination regarding the ABA evaluator and IHO III's decision to not give the SETSS-ABA assessment any weight. The parent argues that IHO III could have questioned one of the private BCBAs who testified during the impartial hearing or could have inquired into the studies and assessments the private evaluator used in making her recommendations. The parent asserts that it was in error for IHO III to reduce the services contained in the parent's contract with SPARTA after having found that the parent proved that SPARTA was an appropriate unilateral placement and having found that equitable considerations favored the parent. Finally, the parent argues that IHO III shifted the burden from the district to the parent by reducing the award of parent counseling and training based on the recommendations made in the April 2024 IEP.
The district asserts in its answer that the reduced relief ordered by IHO III was sufficient compensation for the deprivation of a FAPE for the 2024-25 school year. The district alleges that the relief requested by the parent in her appeal would result in maximization of the student's services providing relief in excess of a FAPE. Finally, the district requests that IHO III's award of related services be affirmed.
V. Applicable Standards
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generallyForest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education 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; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are 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 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).
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 (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). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (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 at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district 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, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). 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 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). The student's recommended program must also be provided in the least restrictive environment (LRE) (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).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[12]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "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 (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).
VI. Discussion
As an initial matter, neither party appealed from IHO III's finding that the district failed to prove that it provided the student with a FAPE for the 2024-25 school year, IHO III's determination that the parent established that the services delivered at SPARTA were appropriate for the student for the 2024-25 school year, or various elements of the awarded relief such as district funding of: one-and-a-half hours per week of OT at SPARTA at a rate of $250 per hour; two hours per week of speech-language therapy at SPARTA at a rate of $250 per hour; transportation for the student to and from SPARTA at a rate not to exceed $100 per day; and school nursing services for the student at SPARTA at a rate not to exceed $100 per day (IHO Decision at pp. 6, 8, 15-16). Therefore, these findings have become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).
A. Unilateral Placement
A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
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.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
1.Student Needs
Although not in contention, a review of the student's needs and current functioning provides the background necessary to evaluate the appropriateness of the recommended program for the student.
a.Evaluative Information
i.October 20, 2022 classroom observation and October 21, 2022 psychoeducational evaluation
As part of a three-year reevaluation, the district completed an October 20, 2022 classroom observation during the 2022-23 school year (sixth grade) (Dist. Ex. 7). According to the observation report, the student was then 11 years old and was attending a 6:1+1 district special class, he displayed many inattentive behaviors, he was reported as hitting his head with his hand multiple times, and the report noted he seemed unaware of his surroundings (id. at p. 1). Per the report, the student presented with significant delays in social emotional functioning and was observed to have bruises on his face due to self-injurious behaviors (id.).
According to the October 21, 2022 district psychoeducational evaluation report, during administration of the Stanford Binet Intelligence Scales – Fifth Edition (SB-5) the student was unable to verbally respond to any verbal test items due to significant language impairment and behavioral deficits and as a result, only the non-verbal subtests of the SB-5 were administered (Dist. Ex. 8 at p. 2). The student's performance on the test yielded a nonverbal IQ, described as the student's "ability to retrieve and manipulate information presented both orally and in print," of 42, which was in the moderately delayed range (id. at pp. 2-3). The evaluator reported, per classroom teacher report and observation, that the student presented with significant aggressive behaviors toward others and himself and, per parent report, the student used to wear a helmet for safety and required individual supervision at all times when at home (id. at p. 2).
ii.January 14, 2023 ABA skills assessment
The January 2023 SETSS-ABA assessment signed by evaluators with BCBA credentials included direct observation of the student at home, direct interview with the parent, and testing administration of the Assessment of Basic Learning and Language Skills-Revised (ABLLS-R) (Parent Ex. B).[13] Based on test administration, observation, and an interview with the parent, the examiner reported the student did not imitate fine-motor, gross-motor, or oral-motor skills, nor did he imitate random actions with objects or sounds or words (id. at p. 2). According to the examiner, the student was nonverbal during the entirety of the assessment but on occasion made non-contextual verbalizations and he grabbed the examiner to communicate his wants (id.). The student did not follow one-step directions, or consistently respond to his name, nor did he identify body parts or animals (id. at p. 3). The examiner reported that, in terms of cognitive functioning, the student displayed poor joint attention and engaged in behaviors such as screaming and hitting himself when demands were placed, or an assessment item was placed in front of him (id.). Per parent report, the student hit himself with a closed fist, screamed when excited or frustrated, and engaged in non-compliance on a daily basis (id.). In addition, the parent reported the student engaged in vocal stereotypy and repetitive behaviors as a form of sensory stimulation (id.). The examiner noted the student was unable to manipulate toys by putting them together or grasp utensils correctly (id. at p. 4). In the area of adaptive functioning, the student required verbal cues to complete his toileting routine, parent support to shower, and assistance with dressing (id.). The parent reported the student never followed a written or picture schedule (id.). The examiner concluded that the student displayed severe symptoms of autism spectrum disorder that interfered with his learning across multiple settings (id. at p. 5).
The 2023 SETSS-ABA examiner recommended that the student receive "intensive 1:1 ABA services" and "strongly recommended that [the student] be considered for at least 40 hours per week of 1:1 ABA services to be used at school and 20 hours per week of 1:1 ABA services at home and in the community to address the noted issues" (Parent Ex. B at p. 5). The ABA examiner recommended that the student receive a highly structured program by credentialed ABA therapists/teachers and under the direction of a licensed behavior analyst (LBA) or a BCBA for four hours per month, and include the use of rewards through a motivational system and a photographic/written activity schedule implemented in school and at home (id.). The examiner opined that the student's self-injurious and other maladaptive behavior impacted his learning and performance at home and in the community and therefore recommended an FBA and a BIP developed by an LBA or a BCBA (id.). The examiner further recommended that the procedures in the BIP be explained and trained to the family and all treatment members and the BIP be implemented in the home, at school, and in the community (id. at p. 6). The examiner recommended the student receive door-to-door, round-trip transportation accompanied by a 1:1 ABA therapist due to the student's self-injurious behaviors (id. at p. 7). Further, the examiner recommended the student receive at least two hours of parent training per month by an LBA or a BCBA and undergo a formal assistive technology evaluation (id.).
iii.September 5, 2023 neuropsychological evaluation
A neuropsychological evaluation report, dated September 5, 2023, indicated the student was nonverbal and "unable to respond to much as related to educational stimulation" (Parent Ex. C at p. 3). The report indicated that per parent report, the student's recent initiation of ABA services at home and at school improved his behavior considerably (id. at pp. 2-3). However, during summer break, when out of school the student's behaviors deteriorated, and the student resumed significant self-injurious behavior (id. at p. 3). The neuropsychological evaluation report stated that the student attempted to alert caregivers to his wants by pulling them and more recently by pointing (id. at p. 5).[14] In summary, the evaluation report highlighted the student's widespread cognitive impairment across domains, that included attention and functional language, and noted the student's intellectual abilities, although not formally assessed, were likely well below expectations (id. at p. 6). The evaluator reported the student was unable to respond to questions on both verbal and nonverbal portions of the entire assessment battery of neuropsychological tests and that the student did not demonstrate conceptual skills involving written language or mathematics, did not use words, and required supervision for many activities of daily living (ADLs) including hygiene and grooming (id. at pp. 6-7). The evaluator found the student's symptoms consistent with his previous autism spectrum disorder diagnosis and reported the student exhibited significant problems with relatedness, joint attention, and restricted and repetitive patterns of behavior (id. at p. 7). The evaluator also reported that the student demonstrated severe deficits in verbal and nonverbal communication, with absent eye contact and substantial difficulty with listening to directions and performing tasks (id.). The evaluator diagnosed the student with autism spectrum disorder, Level 3-requiring very substantial support, noting the student's deficits in social communication and repetitive behavior as well as accompanying intellectual and language impairments (id.). The evaluator opined that given the student was 12 years old and that he "show[ed] no results of benefit from any academic environment, the most intensive of educational and ABA intervention [wa]s indicated" (id.). The evaluator noted, due to the student's growing bigger and stronger with age, the risk of serious injury to himself and others would only rise (id.). The evaluator continued,"[g]iven the serious risk [the student] pose[d] primarily to himself, and to a lesser extent to others, the only responsible dispositional recommendation that c[ould] be made [wa]s one for intensively supervised residential placement" (id.). While the evaluator noted the recommendation for a residential placement was not welcomed by the parent; he stated he believed "such an extraordinary step was warranted" due to the student's combination of severe educational deficits and the very high risk of serious physical injury he posed to himself (id.).
Among its formalized recommendations, the September 5, 2023 neuropsychological evaluation recommended the student be placed in a class of no more than six students with daily instruction infused with ABA principles throughout the day (Parent Ex. C at p. 8). The evaluator recommended that an ABA skills assessment be performed in advance of initiating ABA services (id. at p. 9). In addition, the evaluator recommended the student receive 30 hours of school-based and 10 hours of home-based ABA support (id.). The evaluator further recommended BCBA supervision for two hours per week to be provided in the home setting (id.). In relation to parent counseling and training, the evaluator recommended that the parents be provided two sessions per week for two hours within the home setting to help the student's parents understand his special needs and developmental changes, manage his communication deficits, and improve his social/emotional and adaptive living skills (id.). Further, the evaluator suggested that parent counseling and intervention services were needed to help the parent understand the most appropriate setting for the student as he "g[o]t older and more difficult to contain and regulate" (id.).[15]
iv.January 24, 2024 social history update and January 25, 2024 observation
A social history update, completed by the district on January 24, 2024, indicated that at the time it was written the student was attending a 6:1+1 district special class, with an individual paraprofessional for behavior support and related services of OT and speech language therapy; the report noted the student's academic skills were at the pre-kindergarten level (Dist. Ex. 10 at p. 2). In relation to school performance, the social history update stated "[a]lthough [the student] d[id] have a one-to-one paraprofessional throughout the day for behavioral support, progress ha[d] been very slow due to significant cognitive and behavioral deficits" (id.). In relation to the student's behavior at home, the social history update reflected a report from the student's mother that the student often displayed aggressive behavior and due to the student's lack of language, it was difficult to determine what bothered him (id.). The parent reported that the student would often punch his head, bite others, and hit his head on the wall, and he hurt and bruised family members (id.). The social history noted that the parent received some respite services after school through Medicaid (id.). The parent described the student's behaviors as very difficult to manage on her own and reported the student tended to sleep with his parents (id.). According to the social history, the parent reported "significant behavioral and communication changes at home after (the student) started to receive ABA home and school services" (id.).
On January 25, 2024, a district evaluator completed a classroom observation of the student during independent work with his ABA provider, who was employed by Kidz Choice (Dist. Ex. 9 at p. 1; Parent Ex. O ¶¶ 8, 19). The evaluator, who also conducted the October 21, 2022 classroom observation, reported that the student "appeared to be more attentive than the last observation and seem[ed] to be moderately aware of his surroundings" (Dist. Ex. 9 at pp. 1-2; see Dist. Ex. 7). The evaluator reported the student presented with significant social/emotional deficits and observed that the student had bruises on his face due to self-injurious behaviors (Dist. Ex. 9 at p. 2). The evaluator reported the student continued to present with cognitive, behavioral, and language deficits that impacted his overall functioning (id.). The evaluator recommended a small staff to student ratio and noted the CSE team would implement IHO I's December 2023 decision (id.).
b.April 2024 IEP
A CSE convened in April 2024 and finding the student remained eligible for special education as a student with autism, developed an IEP for the student (Dist. Ex. 2 at p. 1). The April 2024 IEP includes some evaluative information not otherwise produced in the hearing record such as the student's results from the Student Annual Needs Determination Inventory (SANDI), with completion of the inventory in September 2023 and again in Fall 2024 (id.). According to the IEP the student received the following scores on the SANDI: 36/436 on the reading subtest, with demonstrated progress in answering questions about texts using his primary mode of communication; a score of 21/276 on the writing subtest, with progress in making marks on the paper and in starting to trace lines with a pencil; a score of 11/396 on the math subtest with progress matching identical items; and a score of 38/352 on the social/emotional subtest with progress reported in answering yes or no questions (id. at pp. 1-2). The April 2024 IEP further indicated the student "[r]each[ed] for math manipulatives when presented" and in English Language Arts (ELA), the student "engaged with books" and "turn[ed] pages" (Dist. Ex. 2 at p. 2). However, the IEP noted that the student made minimal progress in academic domains as the student's SANDI scores increased in the range of from two to nine points across all subtests from the student's prior IEP (id. at pp. 2-3).
Per teacher observation, the April 2024 IEP reported the student benefited from visual support, modeling, and verbal prompting to complete tasks in individual and group instruction and noted the student had demonstrated interest when manipulatives were used during lessons (Dist. Ex. 2 at p. 2). The IEP indicated that during math and ELA assessments the student benefitted from "a human read aloud" as he did not decode text, and a teacher to record his answers due to his fine motor deficits (id. at p. 3). The IEP stated that based on teacher observations the student used gestures to interact with teachers and peers, showed curiosity by reaching toward new objects and materials in the classroom, enjoyed working one on one with teachers during instruction, enjoyed activities that involved dancing and music, and followed rules and the daily routine with teacher/individual paraprofessional support (id.). According to the IEP, the parent reported she "would like (the student) to improve his ability to communicate and make his needs and wants known" and indicated the student did not know how to answer questions and was not aware of danger, especially in his neighborhood (id.).
In the area of speech-language development, the April 2024 IEP reported the student "communicate[d] using gestures, basic signs, pushing away to reject, pulling/taking to accept, and vocalizations" (Dist. Ex. 2 at p. 4).[16] According to the IEP, the student used a static/programmatic device within structured activities when given prompts and models and had an assistive technology evaluation in May 2023 that recommended a dynamic display device (id.). The IEP described that the student responded to greetings by gesturing and during morning meeting used teacher/picture symbol support and teacher prompting to interact (id.). The IEP reported that when the student was engaged with cause-and-effect toys, puzzles, and adapted books he attempted to approximate activation and explored items without clear purpose or intent, although he had an awareness that something would happen (id.). According to the IEP, the student demonstrated Progress in his use of signs such as "more, music, hug, and eat" to make requests during speech-language sessions, (id.). In addition, the student made progress in his ability to following simple directions that incorporated vocabulary such as body parts, colors, and animals (id.).
In the area of physical development, the April 2024 IEP identified that the student participated in adapted physical education and OT (Dist. Ex. 2 at p. 5). The student made progress towards goals in these areas, with the IEP noting that, the student participated in the morning routine by doffing his coat and unpacking his bookbag and notebook and placing them in the designated place, when given step by step verbal and gestural prompts (id. at p. 4). However, the IEP also noted that the student's performance depended on the day (id.). During OT sessions, the student's therapist worked with him to improve his sustained attention during functional activities of daily living (ADLs), and also worked on fine motor activities (id. at p. 6). The IEP reported the student had diagnoses of autism spectrum disorder and epilepsy and was born with a rare genetic disease that causes the growth of benign tumors in the brain and included symptoms of seizures, developmental delays, behavioral delays, skin abnormalities and kidney disease (id. at p. 5). The student received medication for treatment of seizures and had an individual health paraprofessional and "[n]on 1:1 school nursing services" as needed (id.).
The April 2024 IEP did not report the student as having self-injurious behaviors or aggressive behaviors towards others, nor did it indicate that the student needed a BIP (see generally Dist. Ex. 2; Dist. Ex. 2 at p. 8). The previous February 2023 IEP indicated, per the occupational therapist, that the student had self-injurious behaviors including a description of the student "hitting himself in the head/face, banging his head against the wall desk or nearby person, and kicking nearby furniture" (Dist. Ex. 1 at p. 6). In addition, the management needs section of the February 2023 IEP reflected a parent request for an ABA program due to the student's significant aggressive behavior; however, the February IEP did not indicate the student needed behavior intervention strategies or a BIP (Dist. Ex. 1 at pp. 6, 7, 8).
2.SPARTA Program
The hearing record includes a SPARTA "description of services" that described SPARTA as an ABA program that employed skilled, licensed therapists and certified teachers to provided ABA interventions to nonverbal children ages five to 21 diagnosed with severe autism spectrum disorder (Parent Ex. F at p. 1). According to the program description the ABA interventions included generalized imitation training, echoic/vocal mand training, discrete-trial teaching, incidental teaching, natural environment teaching, and motivational systems (id. at pp. 2-3). In addition, the program description indicated SPARTA offered a "unique comprehensive 1:1 ABA approach to the conventional center-based approach" in that it began in the morning at the student's home and focused on teaching the morning routine ADLs such as personal hygiene, dressing, breakfast and packing for school, and was followed by the student traveling to the SPARTA center with their therapist (id. at p. 1). At the SPARTA center students worked on their individualized ABA treatment goals, while completing multiple activity schedules and receiving mandated services of OT, PT, and speech-language therapy (id.). The program description provided that the individual ABA program continued after the student returned home and addressed completion of activity schedules that included homework, chores, and social tasks (id.). According to the SPARTA description, students received a sensory diet/break before their after-school ABA program began and the after-school program targeted completion of afternoon schedule activities, and evening/nightly routines such as eating dinner, bathing and getting ready for bed (id.). Both the SPARTA program description and a SPARTA brochure noted that in addition to student ABA services, SPARTA aimed to provide education and training to parents and family members during daily family routines (Parent Exs. F at p. 1; G).
The hearing record includes a SPARTA contract with a start date of July 1, 2024 and electronic signatures of the SPARTA president on June 18, 2024, and the parent on June 20, 2024 (Parent Ex. K at pp. 1, 4, 6). The contract indicated that SPARTA would provide the services the student was "authorized to receive" for the 2024-25 school year as follows: home-based ABA for 20 hours per week; center-based ABA for 40 hours per week; four hours per month of parent training by a BCBA (if in the order); three 30-minute sessions per week of OT; four 30-minute sessions per week of speech-language therapy; nursing services; and transportation to and from the center (id. at pp. 1-2).
Also included in the evidence per IHO III's request following the hearing was the student's schedule at SPARTA for the 2024-25 school year (IHO Ex. II). According to the schedule, the student's day started at 8:00 a.m., at his home, with the morning routine completed for one hour followed by the student's commute to school from 9:00 to 9:15 a.m.; an unpacking routine from 9:15 a.m. to 9:30 a.m.; programs, sensory time, related services, lunch, group activities, and recreational activities during the school day; followed by a pack-up routine; and the end of the student's school day with the student's transportation home from 2:45 to 3:00 p.m. (id. at p. 1). During program time from 9:30 a.m. to 12:00 p.m. the student's goals were targeted across domains using discrete trial teaching and a motivational system and the student was provided with sensory breaks following work tasks (id.). The student's related services were also scheduled during this time (id.). During lunch, from 12:00 to 12:30, the student worked on feeding himself and set up and clean-up activities related to lunch (id.). The next two hours and 15 minutes addressed group activities such as gym and art, and again, program activities that targeted the student's goals across domains, in addition to sensory time embedded following work tasks, and finally the pack-up routine (id.).
The evidence included three SPARTA progress reports: a December 19, 2024 OT progress report, a December 20, 2024 speech progress report, and a December 23, 2024 ABA progress report (Parent Exs. H-J). The progress reports related to ABA services and OT indicated that services were provided in accordance with the hours outlined in the 2024-25 SPARTA contract; however, the speech progress report indicated speech-language therapy services were provided in 45-minute sessions rather than 30-minute sessions, as had been indicated on the contract (compare Parent Ex. K at pp. 1-2, with Parent Exs. H at p. 1; I at p. 1; J at p. 1).[17] The progress reports included annual goals, treatment data, progress monitoring comments for quarter one from July to September, and quarter two from October through December, and a summary of the student's progress (Parent Exs. H; I; J). As the student's related services are not in contention on appeal, a review of the student's program will focus on the ABA services delivered to the student, which IHO III awarded at a lower frequency than what was requested by the parent. In the request for review, the parent argues that IHO III erred in choosing which portion of the SPARTA contract were appropriate and cutting the remainder, with IHO III reducing the requested 40 hours per week of in-school ABA services to 27.5 hours per week, reducing the requested four hours per month of parent counseling and training to four hours per year, and not awarding the requested 20 hours per week of home-based ABA services (Req. for Rev. at p. 6).[18]
According to the December 2024 SPARTA ABA progress report he student's program consisted of 40 hours of individual ABA per week in clinic and 20 hours of individual ABA per week at home, with services delivered in the home, center, and community (Parent Ex. H at p. 1). The ABA progress report identified cognitive, speech-language, social/emotional, motor, and self-help skills/adaptive functioning goals for the student (id.). The ABA progress report did not identify the location in which specific goals were addressed, nor did it identify or distinguish the student's level, dependent on the location of service provision, but rather addressed progress made towards goals (id. at pp. 1-9). The progress report identified of the student' goals related to cognitive functioning that included matching objects and pictures, completing an inset puzzle, imitating gross motor movements, imitating actions with objects, following one step directions, and receptively identifying familiar objects; goals related to speech-language development that addressed signing to request preferred items/activities, pointing to preferred items presented in a choice of two, and selecting pictures using an augmentative and alternative communication device; as well as goals related to social/emotional functioning that addressed increasing frustration tolerance with decreased incidence of self-injury, responding to greetings with a wave, and responding to his name with eye contact (id.). The ABA progress report also provided motor skills goals that addressed imitating exercise movements, kicking, catching, and throwing a ball, and completing fine motor activities such as lacing beads and stacking blocks (id.). Also identified in the ABA progress report were self-help skills and adaptive functioning goals for the student that addressed washing hands, bathroom hygiene, dressing self independently, walking safely in the community with his caregiver, and tolerating his caregiver brushing his teeth (id.). The ABA progress report identified the student's progress toward goals as well as areas of continued need and strategies to support the student (id. at pp. 1-10). The ABA progress report noted that the student wore a protective helmet during the baseline assessment of ABA goals, as the student had a high rate of self-injurious behavior, and reported the student required full physical prompting for many puzzle and gross/fine motor behaviors and "needed constant physical contact with another person to appease him and avert his self-injury" (id. at p. 10). In relation to progress, the ABA progress report stated that the student showed growth during his ABA sessions with existing providers and had learned to request everyday things such as food, hugs, and music (Parent Ex. H at p. 10). In addition, the progress report indicated the student tolerated longer work to break ratios and improved his ability to receptively identify and match pictures and objects (Parent Ex. H at p. 10). The ABA progress report noted the student could go for "fairly distant" walks around the nearby neighborhood and into restaurants and stores (id.). The ABA progress report also stated the student increased the number of receptive instructions he followed and improved his ability to follow prompts for task completion (id.). Further, according to the ABA progress report, the student decreased his rate and duration of tantrumming and could tolerate some nonpreferred situations with fewer maladaptive behaviors (id.). The ABA progress report concluded "to help maintain and generalize [the student's] current level of progress, the present provider highly recommends a continuation of ABA services at a clinic for 40 hours weekly, at home for 20 hours weekly, in addition to parent training and [three] hours per week of supervision of related services" (id.).
The hearing record included testimony from a BCBA and director at Kidz Choice Services, Inc., who started working with the student in June 2023 as his ABA provider and direct BCBA supervisor (provider/BCBA supervisor) both at school and at home (Parent Ex. O ¶ 19). The provider/BCBA supervisor provided affidavit testimony of the student's initial assessment by Kidz Choice and initial provision of 30 hours per week of ABA services in school and 20 hours per week in his home and noted that, at some point, home services were lowered to 10 hours per week; however, compensatory hours made up the difference (id. ¶¶ 21; 26). The provider/BCBA supervisor testified that the student made "phenomenal progress" at SPARTA since starting there and indicated the student was now able to communicate his wants and needs through sign language and pointing, which helped reduce self-injurious behaviors (id. ¶¶ 30-31). As related to behaviors, the provider/BCBA supervisor reported the student no longer needed to wear a protective helmet and could tolerate longer moments of not injuring himself if his caregiver walked away for a short period such as to go to the bathroom (id. ¶ 31). Other areas of progress included increased cognitive functioning, as the student imitated movements, responded to receptive instructions, and matched items; in self-care, the student assisted in dressing and bathroom routines; in the community, the student made gains in his ability to walk appropriately and safely in the community and remain appropriate when visiting restaurants, stores, and the supermarket (id.). The provider/BCBA supervisor in affidavit testimony reported that Kidz Choice worked consistently on addressing the student's communication, frustration tolerance, self-help skills, and ability to interact in the community (id. ¶ 32).
The founder, president, and chief executive director of Kidz Choice Services (director) testified that he was certified as a doctoral-level BCBA (BCBA-D) and an LBA and further testified that the student received services at SPARTA (Parent Ex. N ¶¶ 5, 7, 19).[19] The director testified that the student required treatment in a center that could provide individual attention and related services and reported that the SPARTA program used ABA instructional methods such as 1:1 discrete trial teaching and was able to provide related services, as well as private transportation with the significant support that was needed due to the student's dangerous behaviors (id. ¶ 21-24). The director described the daily activities at SPARTA that included discrete trials, activity schedule trainings and related services, as well as art, music, and lunch, in addition to weekly swimming (Tr. p. 31-33). During his testimony, the director explained that in the home ABA program SPARTA "carr[ied] over the trials in imitation, object imitation, gross motor imitation, oral motor imitation, and vocal imitation" (Tr. p. 34). The director further testified "[t]hat's the program to get him to start making first words" (Tr. p. 34).[20] The director testified that the school program was carried over in different settings so that the student received more practice at home, learned to communicate with family members and engaged in activity schedules at his house, not just at school (Tr. p. 35).
The evidence in the hearing record supports the finding that the student received specially designed instruction through the individual ABA services provided in-home and at the SPARTA center by SPARTA (Parent Exs. F-J; O ¶¶ 30-32). Specifically, the ABA progress report documented progress in multiple goal areas targeted during the 2024-25 school year (Parent Exs. F-J; O ¶¶ 30-32). Accordingly, under the totality of the circumstances, the parent's program consisting of the student's enrollment at SPARTA that included a center based individual ABA program with 40 hours of in-school ABA instruction and 20 hours of home-based individual ABA instruction was, overall, an appropriate program to meet the student's identified needs.
B. Equitable Considerations
In the request for review, the parent argues that IHO III improperly reduced portions of the parent's contract with SPARTA by awarding 27.5 hours per week of school-based ABA services rather than the requested 40 hours per week, awarding four hours per year of parent counseling and training rather than the requested four hours per month, and in denying the parent's request for 20 hours per week of home-based ABA services. The district in its answer first argues that the parent did not appeal IHO III's specific finding in relation to the reduction of school-based ABA, as based on the student's schedule, and then argues the IHO's award was correct as the parent seeks a maximation of services.
Having held that SPARTA was an appropriate unilateral placement, based on equitable considerations IHO III awarded 27.5 hours per week of in-school ABA services to be funded by the district (IHO Decision at pp. 8, 11). IHO III quoted the nonpublic school's schedule in the decision, finding that the student's day at the center began at 9:15 and ended at 2:45 in awarding 27.5 hours of services and did not award the 30 total minutes per day transporting the student to school and back home as center based time, accounting for 2.5 hours per week, nor the hour per day on the schedule from 8:00 to 9:00 for arrival/morning routine at the student's home that would account for an additional five hours per week (IHO Decision at pp. 9-10; see IHO Ex. II).
In review of the student's 2024-25 daily schedule, the student's school day started in the student's home at 8:00 a.m. with a morning routine and ended at 3:00 p.m. with transport of the student home, accounting for 35 hours per week (see IHO Ex. II). However, the SPARTA program description indicated that "[a]fter returning home, the 1:1 ABA program continue[d] as the student complete[d] activity schedules" and "the student w[ould] have a sensory diet/break before their after-school ABA program beg[an]" (Parent Ex. F at p. 1). Although not included in the student's schedule, an additional hour of home programming could account for the remaining five hours of the school-based ABA services per week, for a total of 40 hours per week of center-based programming as reported in the student's contract (see Parent Ex. F at p. 1; IHO Ex II), Additionally, the December 2024 ABA progress report indicated the student was receiving a full 40 hours per week of "in clinic" ABA services, in addition to the 20 hours per week of at-home ABA services (Parent Ex. H at p. 1).Accordingly, there is sufficient basis for overturning IHO III's reasoning for reducing the amount of services awarded to the student based on the student's schedule.
Additionally, IHO III reviewed the nonpublic school program description and found that the student's day at SPARTA began at the student's home with the ABA therapist supporting the student in traveling to the SPARTA program that offered ABA instruction and the individual ABA program continued after returning home (IHO Decision at p. 10; see Parent Ex. F). IHO III determined that, although the nonpublic school offered ABA instruction at all times of the day, that did not obligate the district to fund those services as districts are not required to "maximize" services (IHO Decision at p. 10).
Among the factors that may warrant a reduction in tuition under equitable considerations is whether the frequency of the services or the rate for the services were excessive (see E.M., 758 F.3d at 461 [noting that whether the amount of the private school tuition was reasonable is one factor relevant to equitable considerations]). An IHO may consider evidence regarding whether the rate charged by the private agency was unreasonable or regarding any segregable costs charged by the private agency that exceed the level that the student required to receive a FAPE (see L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *7 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100). More specifically, while parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow that they may take advantage of deficiencies in the district's offered placement to obtain all those services they might wish to provide for their child at the expense of the public fisc, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148). Accordingly, while a parent should not be denied reimbursement for an appropriate program due to the fact that the program provides benefits in addition to those required for the student to receive educational benefits, a reduction from full reimbursement may be considered where a unilateral placement provides services beyond those required to address a student's educational needs (L.K., 674 Fed. App'x at 101; see C.B. v. Garden Grove Unified Sch. Dist., 635 F. 3d 1155, 1160 [9th Cir. 2011] [indicating that "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs), or if it provides some things that do not meet educational needs at all (such as purely recreational options), or if it is overpriced"]; Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1161 [5th Cir. 1986] ["The Burlington rule is not so narrow as to permit reimbursement only when the [unilateral] placement chosen by the parent is found to be the exact proper placement required under the Act. Conversely, when [the student] was at the [unilateral placement], he may have received more 'benefit' than the EAHCA [the predecessor statute to the IDEA] requires"]).
As discussed above, the student received 40 hours per week of center-based ABA services at SPARTA and, according to the SPARTA description, the student needed those services in order to get to school, while in school, and after school prior to the start of the student's after school program (Parent Ex. F). While IHO III is correct in that the district is not required to fund services designed to "maximize" the student's potential or simply to fund all services because the school "offers ABA instruction at all times of the day," IHO III did not adequately consider the evidence of the services being provided to the student at SPARTA or the evaluative information included in the hearing record recommending the provided services for the student.
Notably, IHO III held that the author of the 2023 SETSS-ABA assessment was "not credible" based on the fact that she did not include citations to support her statement that "'numerous studies'" demonstrated better overall functioning for students with autism who received up to 40 hours per week of individual ABA services and that she "failed to detail" why the student would require up to 60 hours per week of ABA services and, therefore, discredited the entire assessment (IHO Decision at pp. 10-11). Initially, it is worth noting that the logic behind the examiner's conclusion is certainly worth questioning, as there is no explanation as to why the examiner strongly recommended 40 hours per week of ABA services in school and 20 hours per week of ABA services at home, where the examiner's own statement regarding the relied on studies indicated "better overall functioning" for students with autism "who receive[d] up to 40 hours per week of 1:1 ABA services" compared to students "who d[id] not receive this amount of ABA services" (Parent Ex. B at p. 5). However, while I acknowledge that the report did not cite to any research to bolster the examiner's statement, IHO III had the opportunity to question the parent's ABA specialists during the impartial hearing regarding the recommendations contained in the 2023 SETSS-ABA assessment, including the BCBA supervisor who signed the report, and did not do so (Tr. pp. 23-40; Parent Ex. N). It is an IHO's responsibility to ensure that there is an adequate and complete hearing record (see 8 NYCRR 200.5 [j][3][vii]) and State regulation provides that an IHO may ask questions of counsel or witnesses for the purpose of clarifying or completing the hearing record (8 NYC.RR 200.5[j][3][vii]). Overall, IHO III was not required to afford weight to the evaluator's recommendation if he determined it was questionable, based on the manner it was presented in the report, and it was not otherwise supported by the information available in the hearing record; however, IHO III's determination that the author of the 2023 SETSS-ABA assessment was not credible and his decision to discredit the entire assessment based on the one recommendation was improper, especially considering IHO III had the ability to ask clarifying questions and declined to do so.
Additionally, the 2023 SETSS-ABA assessment was not the only evaluation in the hearing record recommending services for the student. IHO III did not include the September 2023 neuropsychological evaluation, in her analysis, which, like the January 2023 SETSS ABA assessment, reported the student's severe symptoms of autism spectrum disorder, with both evaluations observing bruising on the student from self-injurious behaviors (see Parent Exs. B; C). The September 2023 neuropsychological evaluation also recommended that the student required school and home-based ABA services, specifically: 30 hours per week of ABA services at school and 10 hours per week of ABA services at home, for a total of 40 hours of individual ABA services per week (Parent Ex. C at p. 9). Further, IHO III did not include in her analysis any of the information before the February 2024 CSE, which, as cited above, explained that the student had severe deficits in attention, behaviors, cognition, social/emotional and language domains, and also provided report of the student's self-injurious behaviors that left the student bruised (Dist. Exs. 7-10).
The hearing record includes sufficient evaluative information from both the district and parent identifying that the student had severe needs (Parent Exs. B; C; Dist. Exs. 7-11). Additionally, the hearing record included specific recommendations for up to 40 hours per week of ABA services, as well as testimony from the student's BCBA provider and the nonpublic school director indicating the student needed the program he was receiving from SPARTA (Parent Exs. B at p. 7; C at pp. 8-9; N ¶25-26; O ¶33). Overall, the hearing record supports finding that the student had such severe needs that required a level of support services including morning routines with an individual ABA provider at the student's home and transportation with an individual ABA provider, center-based services of individual ABA instruction and transport and transition supports of individual ABA services in the student's return home. Therefore, contrary to IHO III's decision, the evidence in the hearing record supports reimbursement for the 40 hours of school-based individual ABA services the student was receiving at SPARTA.
Turning to IHO III's determination that the home program was only used for generalization of skills, as the IHO noted, courts have indicated that school districts are not required, as a matter of course, to design educational programs to address a student's difficulties in generalizing skills to other settings outside of the school environment, particularly where it is determined that the student is otherwise likely to make progress, at least in the classroom setting (see, e.g., R. F., 2025 WL 2695690, at *8-*9 [collecting cases]; F.L. v. New York City Dep't of Educ., 2016 WL 3211969, at *11 [S.D.N.Y. June 8, 2016]; L.K., 2016 WL 899321, at *8-*10; Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 [10th Cir. 2008]; see also IHO Decision at p. 6).
In this matter, per the director's testimony that at-home ABA helped the student take skills learned in school and "just carry it over in different settings," both the January 2023 SETSS-ABA assessment and the September 2023 neuropsychological evaluations stated that the student required an ABA program at school, and, in addition, a home-based ABA program (Tr. p. 35; Parent Exs. B at pp. 5-6; C at pp. 7-9; IHO Decision at p. 11). The SETSS-ABA assessment noted the student needed this program to ensure a decrease in self-injurious and maladaptive behaviors across settings and develop more prosocial behavior (Parent Ex. B at p. 6). The ABA-SETSS assessment recommended the student "receive door-to-door round-trip transportation and be accompanied by a 1:1 ABA therapist" (id.). The September 2023 neuropsychological evaluation stated as "[the student] [wa]s now 12 years old and show[ed] no results of benefit from any academic environment, the most intensive of educational and ABA intervention [wa]s indicated" (Parent Ex. C at p. 7).[21]
During the impartial hearing, the student's ABA provider/BCBA supervisor testified that he had familiarity with the student as he was the student's ABA provider and the direct BCBA supervisor at school and at home and reported first working with the student and his family in June 2023 (Tr. p. 16; Parent Ex. O ¶¶ 19-20). The provider/BCBA supervisor testified that the student had autism and severe self-injurious behaviors that required the student's need for individual ABA services to manage his behaviors even prior to engaging him in learning opportunities (Tr. p. 17). In affidavit testimony, the provider/BCBA supervisor detailed the student's significant needs and reported that through implementation of ABA services the student demonstrated increased tolerance of demands and quickly learned to point and use signs such as "hug," "eat," and "music" with high frequency with caregivers and therapists (Parent Ex. O ¶¶ 21-24). The provider/BCBA supervisor reported the student made significant progress with ABA services, and opined that the student had the capacity to make progress given continued individualized instruction that included discrete trial training, use of a token economy system and visual schedules in both school and home/community routines (id. ¶¶ 25-26). The provider/BCBA supervisor noted the student initially received 30 hours of ABA services in school and 20 hours of ABA at home and was able to make progress with this mandate (id. ¶ 26). He opined that a reduction in home hours would result in regression of the student's skills (id. ¶ 26). The provider/BCBA supervisor reported that SPARTA targeted the student's ability to dress himself, use the bathroom, and engage in ADLs as independently as possible, as well as his interaction in the community through walks, dining in restaurants, visits to stores/supermarkets, and school trips (id. ¶ 32). The provider/BCBA supervisor reported the student learned to enjoy regular trips of horseback riding, weekly swims, jumping in a trampoline park, and rides at an amusement park (id.).
The parent, in affidavit testimony, reported "[o]nce [the student] started ABA therapy, he began to make so much progress for the first time. I was in shock at how amazing his behavior had gotten" and stated "[h]e had made such incredible gains" (Parent Ex. M ¶ 5). The parent reported that, despite receiving ABA services at home, the student regressed when school closed for two weeks at the end of the summer (id. ¶ 7). The parent reported that in the morning, the student engaged in some behaviors when the ABA services were not in place but there had been progress and the student was learning to use the skills he learned during ABA even when ABA services were not taking place (id. ¶¶ 7, 11-12). However, the parent indicated that when the student's home-based ABA services were reduced, the student's behavior began to regress a little bit and "[h]is behaviors were going back to how they were" (id. ¶¶ 10-12). The parent described that "[s]ince starting at SPARTA and having the support of the home-based services, [the student] ha[d] been doing so well" (id. ¶ 20). The parent reported the student still engaged in self-harm when he did not have ABA and understood the student could not have ABA support at all times; however, she reported concern if his services were to be cut or reduced in any way (id.). The parent stated that she knew the student was "going to struggle so much and begin regressing immediately if something were to happen to his support system" (id. ¶ 21).
The Kidz Choice director testified that "[the student] relie[d] [] heavily on all of the[] [SPARTA] services and it [wa]s absolutely crucial that he be given the opportunity to continue" (Parent Ex. N ¶ 26). At the hearing, the district questioned the director regarding his role at SPARTA and the type of students who attended SPARTA (Tr. pp. 25-26). The director reported SPARTA served students "diagnosed with level three severe autism" and specialized in working with students who were nonverbal and self-injurious (Tr. pp. 26-27). He noted that the "[the student] self-injure[d] at extremely high rates, and he [was] apraxic and nonverbal, non-speaking" and reported that "[the student] require[d] some prerequisites before he c[ould] learn some of the academic [] content in a subject-based curriculum" (Tr. p. 26). The director testified that due to the student's needs, two of his best BCBA's served the student directly (Tr. pp. 27-28).
Within its answer, the district argues that the testimony of the provider/BCBA supervisor related to the out of school activities proves the home services were directed at maximization and undermines the argument that home-based ABA services were necessary. During the hearing, the district only questioned the provider/BCBA supervisor on why the student needed ABA services; however, the district did not ask any questions related to the student's home-based ABA services or any questions related to whether the home-based services were directed at maximization or generalization of skills, such that they would not have been necessary for the student to avoid regression, make progress during the in-school portion of his program, or receive educational benefits (see generally Tr. pp. 14-18). In its answer, the district argues in support of IHO III's finding related to generalization and similarly cites to the director's testimony that the purpose of home ABA services was to "carry over" skills the student learned at school into different settings and that the home-based ABA taught the student how to "point, look and communicate" in his home setting (Tr. p. 35; Answer at p. 5).
Based on the above, the hearing record supports finding that some of the home-based ABA services were directed at generalizing skills the student learned across environments, but overall, the witnesses presented by the parents testified that the home-based services were necessary for the student to benefit from his educational program. Further, while those portions of the home-based ABA services directed at generalizing those skills could be considered in excess of what was required to provide the student with a FAPE, in this matter, the district does not provide any argument, or cite to any evidence, that would indicate what portion of the home-based ABA services could be reduced before the student's overall program would be made inappropriate. Here, where the district did not provide the student with a school placement for the student's 2024-25 school year, and the district did not cross appeal from IHO III's determination that the student was denied a FAPE for the 2024-25 school year, the district has essentially declined to present its view of what would have constituted a FAPE for the student. Accordingly, the evidence presented by the parent as related to the student's needs is unrebutted. Under these circumstances, as the parent presented evidence to show the appropriateness of home-based services, and the district has not presented sufficient evidence, or argument, to show that the home-based services were in excess of a FAPE, equitable considerations weigh in favor of granting the requested relief in its entirety.
A review of the hearing record, shows it did not include a schedule of the student's home-based services, although the parent provided the SPARTA contract and December 2024 progress report indicating the student received 20 hours of home-based services (Parent Exs. K; H; see generally Parent Exs. A-C; F-O; Dist. Exs. 1-15; IHO Exs. I-III; Aug. 6, 2024 Tr. pp. 1-6; Jan. 7, 2025 Tr. pp. 1-48). The director's testimony that SPARTA provided the student with 20 hours of home-based services for the 2024-25 school year was not rebutted (Tr. p. 39). The district is ordered to reimburse SPARTA for the school-based and home-based ABA program upon receipt of service dates and hours provided by SPARTA during the 2024-25 school year.
Finally, IHO III also awarded parent counseling and training at a frequency of four times per year, as opposed to the requested four times per month, because "[p]arent ha[d] failed to establish why the amount recommended in both IEPs [was] insufficient" (IHO Decision at p. 13). State regulations provide for the provision of parent counseling and training for the purpose of enabling parents of students with autism to perform appropriate follow-up intervention activities at home (8 NYCRR 200.13[d]). Parent counseling and training is defined as "assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's [IEP]" (8 NYCRR 200.1[kk]; see 34 CFR 300.34[c][8]). In this instance, it was not the parent's burden to prove that the amount of parent counseling and training provided in the February 2023 and April 2024 IEPs was sufficient; it was the district's burden to prove that the IEP's recommendations were appropriate which the district failed to do by resting on its documents alone, when the CSE's documentation did not adequately address this point. However, the hearing record includes the neuropsychological evaluation, which included a recommendation for two weekly sessions of parent counseling and training "to help [the student's] parents understand [the student's] special needs, developmental; changes, manage his communication deficits, and improve his social-emotional and adaptive living skills" (Parent Ex. C at p. 9). Additionally, the program provided to the student by SPARTA included a more significant home portion than the program recommended by the district in the April 2024 IEP, including before school morning and after school afternoon and nighttime routines (see Parent Ex. F at p. 1; IHO Ex. II). Without any explanation regarding the discrepancy between the two weekly sessions of parent counseling and training recommended in the neuropsychological evaluation and the four one-hour sessions of parent counseling and training contained in the April 2024 IEP, as with the home-based ABA services, the hearing record weighs more towards allowing funding for the services provided.
VII. Conclusion
Having found that the evidence in the hearing record supports a determination that the parent met her burden of establishing the appropriateness of the student's unilateral placement at SPARTA for the 2024-25 school year, including the provision of 40 hours per week of in-school ABA services; 20 hours a week of home-based ABA services; and 4 hours per month of parent counseling and training, and that equitable considerations support an award of funding for the full costs of the services provided by SPARTA, the necessary inquiry is at an end.
I have considered the parties' remaining contentions and find they are unnecessary to address in light of my above determinations.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the IHO's decision, dated February 24, 2025, is modified to direct the district to fund the costs of 40 hours per week of in-school ABA services at SPARTA during the 2024-25 school year upon presentation of proof of delivery of services to the student, including dates and times of delivery;
IT IS FURTHER ORDERED that the IHO's decision, dated February 24, 2025, is modified to direct the district to fund the costs of 20 hours per week of home-based ABA services provided by SPARTA during the 2024-25 school year upon presentation of proof of delivery of services to the student, including dates and times of delivery;
IT IS FURTHER ORDERED that the IHO's decision, dated February 24, 2025, is modified to direct the district to fund the costs of four hours per month of parent counseling and training upon presentation of proof of delivery of services to the parent, including dates and times of delivery; and
IT IS FURTHER ORDERED that the IHO's decision, dated February 24, 2025, is modified to reflect that all of the relief awarded as reimbursement or direct funding by the district is to be paid by the district following presentation of proof of delivery of services, including dates and times of delivery.
Footnotes
[1] The October 2022 psychological evaluation and a contemporaneous classroom observation both indicated that, as reported by the parent, the student previously wore a helmet for safety (Dist. Exs. 7 at p.1; 8 at p. 1).
[2] An October 2022 IEP was not entered into the hearing record.
[3] The hearing record contains duplicate copies of the January 2023 SETSS-ABA assessment (compare Parent Ex. B, with Dist. Ex. 13). For ease of reference, this decision will refer to the parent's exhibit.
[4] The hearing record does not contain a prior written notice reflecting the results of the February 1, 2023 IEP.
[5] The February 2023 IEP noted that "[p]arent requests a[n] ABA program due to significant aggressive behaviors that have shown no improvement. Psychologist is in agreement with a non public school setting" (Dist. Ex. 1 at pp. 8, 29).
[6] The parent's attorney attempted to enter the December 5, 2023 IHO decision and a March 11, 2024 IHO decision into the hearing record, but the district objected to both, and IHO III did not allow the FOFDs to be admitted into the hearing record (Tr. pp. 6-7). Having determined that the December 5, 2023 FOFD and March 11, 2024 FOFD were necessary to complete the hearing record, the undersigned requested copies from the district and they have been added to the hearing record as additional documentary evidence.
[7] The December 2023 decision awarded the parent the following in compensatory education "in a non-expiring bank:" (1) 32 hours of OT for the 2020-21 school year; (2) 184 hours of OT for the 2021-22 and 2022-23 school years; (3) 64 hours of speech-language therapy for the 2020-21 school year; (4) 368 hours of speech-language therapy for the 2021-22 and 2022-23 school years; (5) 184 hours of parent counseling and training for the 2021-22 and 2022-23 school years; (6) 184 hours of LBA/BCBA supervision for the 2021-22 and 2022-23 school years; (7) 320 hours of individual SETSS/ABA for the 2020-21 school year; and (8) 1,840 hours of school-based individual SETSS/ABA and 920 hours of home-based individual SETSS-ABA for the 2021-22 and 2022-23 school years (Dec. 5, 2023 IHO Decision at pp. 35-36).
[8] A February 2024 IEP was not entered into the hearing record.
[9] Although the April 2024 IEP states that the date of the IEP meeting was April 4, 2024, it contains a note under "Parent Concerns" stating that on April 11, 2024, the "[p]arent requested a reconvene meeting," therefore it appears that the CSE reconvene occurred on April 11, 2024 (Dist. Ex. 2 at pp. 27, 28). I note that the April 2024 IEP contains a projected implementation date of February 15, 2024 (id. at pp. 1, 18-19).
[10] The hearing record does not contain any prior written notice or school location letter sent by the district to the parents following the April 2024 CSE.
[11] A prehearing conference was held on August 6, 2024 (Aug. 6, 2024 Tr. pp. 1-6). As the transcripts for the prehearing conference and the hearing were not consecutively paginated, for ease of reference, all citations to the transcript of the January 7, 2025 hearing will be referred to with just the transcript cite and page number while any reference to the transcript of the prehearing conference will be proceeded by the date of the prehearing conference (Aug. 6, 2024 Tr. pp. 1-6; Tr. pp. 1-48).
[12] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 580 U.S. at 402).
[13] The individual who signed the SETSS-ABA assessment as the supervising examiner also provided affidavit testimony and direct testimony at the impartial hearing as the executive director of ABA at SPARTA (Tr. p. 24; Parent Exs. B at p. 7; N).
[14] The background report in the September 2023 neuropsychological evaluation noted the student had difficulty sleeping, and "[i]f one of his parents [wa]s not with him, he w[ould] begin self-injurious behavior, hitting himself" and "[i]f his father move[d] or g[ot] up during the night, [the student] beg[an] to hit himself uncontrollably" (Dist. 12 at p. 2).
[15] The neuropsychological report included a breakdown of compensatory hours of ABA services for previous school years (Parent Ex. C at pp. 9-10).
[16] The April 2024 IEP used the acronym PMC throughout, which was defined in the speech/language section as "[p]rimary [m]ode of [c]ommunication" (Dist. Ex. 2 at p. 4). However, although the IEP identified the student's methods of communication, including gestures, signs, vocalizations, and the use of an assistive technology device, the IEP did not specifically identify the student's primary mode of communication (id. at pp. 1-7).
[17] The December 2024 speech progress report indicated a mandate of "3X45:1, 2:45:3" (Parent Ex. J at p. 1). Although the hearing record is not clear as to the duration of the services delivered, because the speech-language therapy services are not in dispute on appeal, this issue need not be further discussed.
[18] In the request for review, the parent mistakenly indicates that IHO III only awarded 27 hours per week of ABA services; however, IHO III awarded 27.5 hours per week (IHO Decision at p. 15). Additionally, there is no dispute as to the other services awarded for the 2024-25 school year: 1.5 hours per week of OT; 2 hours per week of speech-language therapy; nursing services; and transportation to and from the student's home (id. at pp. 15-16).
[19] The director testified that the student attended SPARTA and this case had nothing to do with Kidz Choice; however, as noted above in his affidavit he identified himself as the founder, president and chief executive clinical director of Kidz Choice (Tr. p. 34; see Parent Ex. N ¶ 7). In addition, the student's ABA provider testified that he worked for Kidz Choice and that Kidz Choice had conducted the initial assessment and observation of the student (Parent Ex. ¶¶ 8, 21). Although the director founded both the Kidz Choice and SPARTA programs, he testified that at the time of the hearing the student was only receiving services from SPARTA (Tr. pp. 29, 34).
[20] The director initially testified that the student received ten hours of home-based ABA services; however, during redirect when directed to look at the June 2024 SPARTA contract, the director corrected himself and stated the student received 20 hours of home-based ABA services (Tr. pp. 34, 39; Parent Ex. K at p. 1).
[21] Further, as described in detail above, the September 2023 neuropsychological evaluator prior to recommending individual ABA services at school and at home noted that due to the risks to himself and to a less extent to others "the only responsible dispositional recommendation that c[ould] be made [wa]s one for intensively supervised residential placement" (Parent Ex. C at p. 7).