New York City Department of Education, Impartial Hearing Decision

In the Matter of an Impartial Hearing pursuant to Part 200 FINDINGS OF FACT AND

ORDER

of the Regulations of the Commissioner of Education IHO 171671

-against-

The New York City Department of Education

Procedural Context By letter dated December 27, 2017 I was appointed to hear the Matter of and the New York City Department of Education (hereinafter “the Department”) pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. Section 1415 (f)(1). On January 19, 2018 the undersigned received SED notification that the resolution period had expired and, in furtherance thereof, a pre-hearing conference was convened telephonically on January 22, 2018 for the purpose of developing a litigation calendar and, where possible, framing the issues. Thereafter, proceedings were held on February 26, 2018; May 16, 2018; July 2, 2018; August 2, 2018; October 17, 2018; January 10, 2019; March 7, 2019; September 10, 2019 and December 4, 2019 the proceedings were continued. On this last date, the parties were offered an opportunity to submit closing Memoranda of Law and, as a result thereof, the compliance date for issuing a decision in the above-referenced matter was duly extended to February 25, 2020.

Specifically, the Parents assert that the Department stands in violation of its Child Find duties and responsibilities pursuant to [§ 20 U.S.C. § 1412(a)(10)(C)(iii)(I)(bb), 1412(a)(3)(A)] and 8 NYCRR § 204 (a)(1) et seq. for the 2017-2018 school year. As such, its failure to evaluate in a timely and appropriate manner denied the right to FAPE. As a result, thereof, they are seeking tuition reimbursement for both the 2017 summer program at (hereinafter “ ) and the 2017-2018 school year program at Program (hereinafter “ ”) in furtherance of unilateral transfers when, in their opinion, no appropriate program was offered to their child.

As a corollary, the Parents have defended the educational program implemented by both and and rely upon the rules and principles set forth in Florence County Department Four v. Carter by Carter, 114 S.Ct., 361 (1993); and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. As the hearing unfolded, testimony offered by each witness was credible and I have concluded that each witness testified truthfully in accordance with their recollections and as to the opinions they held.

It should be noted that subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, scheduling of witnesses, mutually available dates and preparation of closing memoranda. At the commencement of the 2017-2018 school year, the student was approximately seventeen years old and in the eleventh grade. Although previously known to the CSE, by letter dated February 12, 2018, the student was declassified and deemed ineligible for special education services. Exh. ^[1].

A list of persons in attendance and of evidence is appended hereto.

The Department’s Case and Summary of Testimony testified on behalf of the Department. She is presently the supervising psychologist at . She did not know the student other than within the context of litigation. Tr. at 175. She did not participate in his IEP review and based her opinions upon records only. 1 She did not participate in the child’s IEP review, has never met the student or spoken to his teachers or parents. Tr. at 208. However, based upon her review of educational file, she concurred with the Department’s determination of ineligibility, reporting that the “student was accessing the curriculum and doing well.” Tr. at 176-177. Although the child was recommended to attend public school, testified that she was only vaguely familiar with . Tr. at 209. Finally, she did not know when her District had become responsible for the student’s education, reiterating that her experience is with unilateral transfers. She testified, “I wouldn’t know what they did in the public school.” Tr. at 233-234.

Specifically, testified that the student’s scores on the Wechsler Intelligence Scale for Children indicated that scores in verbal comprehension, visual spatial ability, processing speed and fluid reasoning were all in the high average or average range. Referencing the child’s ineligibility determination, observed that yielded average and above scores on the Kaufman Test of Educational Achievement. Exh. 1 at 2. The child’s writing scores were informally assessed without scoring. She noted that the record did not indicate any speech or hearing difficulties and that had earned a cumulative 3.15 average.

Although the child did, in fact, have a §504 plan, this was developed in 2015 and had not been updated for the 2018 CSE review. Tr. at 182-183. Nevertheless, the witness was able to reference many academic and educational modifications enumerated within the §504 document (i.e. additional time for class assignment and all tests, class notes from teachers, use of the computer and calculator, breaks during class). The witness opined that these accommodations would adequately serve the student’s educational needs. For example, observed that the student’s education evaluation report detailed deficits in math computation and essay writing (inadequate use of transitional words) which did not require special education. Rather, the child’s math and written literacy issues could be addressed within the classroom by providing supplemental instruction. Tr. at 187-190.

Similarly, she noted that relatively slow processing speeds could be addressed as a §504 accommodation. Although reported that processing speed fell within the normal range, she neglected to mention that the same report upon which portions of the Educational Evaluation were based indicated that the student’s processing speed was two grade levels below expectation while math and writing fluency were more than three grades below expectation. Exh. 3 at 7; Exh. 5, passim. In fact, literacy issues reflected far more than poor use of transitional words. The report states, “”he did not restate or summarize his reasons in the introduction by restating key words from the body of the paragraph. His paragraph was missing a concluding statement . . . overall struggled with organizing the content of his writing in a systematic manner.” Exh. 5 at 2.

While acknowledged that had been diagnosed with ADHD and had difficulties coping with stressors, she believed these issues were “improving” and no longer exerted any impact upon his ability to access an education. Tr. at 195-196. She based this conclusion upon the student’s psycho-educational evaluation as well as his grades.

On cross-examination, acknowledged that she was unaware of whether any psychiatric evaluations had been performed on the child as none are listed in the Department’s ineligibility document. Exh. 1 at 2; Tr. at 211, 213.

Significantly, the Psychoeducational Evaluation relies largely upon self-report as measured on the BASC-3rd Edition. Neither parent nor teacher report was obtained, nor is a functional behavior assessment part of the record. I am, therefore, compelled to draw a negative inference that none of these measures exist. Tr. at 215-216. Not surprisingly, BASC does not endorse any significant problems with hyperactivity, inattention, depression, anxiety or somatization.

It should be noted that the ineligibility document further indicates, “According to his teacher, does demonstrate significant anxiety.” Nevertheless, the witness had absolutely no knowledge as to which teacher or even when this statement had been made, testifying that the statement may have been in a teacher report or made during the course of the eligibility meeting. Tr. at 217. Beyond this, it is unclear from the attendance record at the eligibility proceedings as to whether anyone had any sustained relationship with this student. While the psychological and educational assessment are valuable, it is critical to understand how this student functions within the classroom over time. As there was no classroom observation, it was imperative that someone at the CSE proceedings have a clear and sustained familiarity with this student.

Reviewing the attendance sheet at the eligibility meeting, it appears that the student’s ELA teacher may have participated in the proceedings. According to this individual, demonstrated “significant anxiety about a heavy workload” and “struggled with impulse control.” Exh. 1 at 5. Other than a 2016-2017 report card, the evaluation did not include school records or teacher reports.

testified, on cross-examination, that no one from the CSE ever observed the child prior to the eligibility proceedings. Tr. at 275. Similarly, she did not know if anyone had reached out to personnel. Thus, she had no firsthand knowledge of ability to function within a general education classroom. Tr. at 276. In furtherance thereof, testified that she had a general idea of what transpires in a mainstream high school, she did not know the details. Tr. at 283- 286.

Given the absence of a classroom observation along with diagnoses of ADHD and executive function disorder, it clearly was incumbent upon the Department to acquire academic reports from both private and public-school personnel. Despite ’s comments that the student’s file contained extensive documentation, documentation from the student’s school and psychiatric records were not incorporated into the eligibility proceedings. Finally, although BASC scores were supplemented by testing observation and a student interview, such an evaluation is inadequate given the student’s psychiatric history, chemical addiction, suicidal ideation and medication protocol. Moreover, could neither affirm nor deny that a psychiatric assessment had ever been performed.

Under these circumstances, I find that the evaluations upon which the CSE determined ineligibility for special education were inadequate. Similarly, the vague responses offered by clearly mitigate against establishing the Department’s legal burden to provide with FAPE. The clinician’s acknowledgement that scores are “clinically significant for sensation seeking behavior and a strong preference for engaging in behaviors that are considered by others as risky or hazardous” were a red flag warranting further assessment. Exh. 5 at 2-3. Even a minor counseling report would have shed some light on the scope of emotional disability, but had no idea what reports or evaluations had been considered at the eligibility proceedings, other than those listed in the document. Tr. at 222-225. Indeed, although the Educational Evaluation indicated that “continues to need social emotional support,” did not know whether the student’s emotional health had been discussed. Tr. at 272. Indeed, the need for social/emotional support is not even addressed in the student’s eligibility report. Exh. 1, passim. Similarly, testified that although she believed the CSE had considered alternatives to general education alone she could not explain why these options had not been denominated in the eligibility assessment. Tr. at 225-226. Beyond this, the witness indicated that she did not know if any supports had been offered to address elopement issues and did not know when the child had entered her district. Tr. at 247. One thing is clear. experience at was disastrous and nearly fatal to the student. Nevertheless, the Department persisted in offering a largely identical educational plan to

Ironically, it was personnel that recommended the student be brought to for psychiatric assessment. Likewise, it was ’s admission to the Parents that the school was no longer a safe placement for Nevertheless, the Department continued its recommendation for general education along with a §504 plan which did not address his behavioral/emotional/psychiatric issues.

Curiously, although the child’s self-report on the BASC was adopted by the CSE, the Parent’s report on the Department’s Vocational Assessment appears to have been ignored. In completing the questionnaire, the Parent noted that required instruction in various areas of time management, organization, health, safety, problem-solving and interpersonal skills. Nevertheless, the Department’s witness had no knowledge of this report being discussed or even utilized at the eligibility proceedings. Tr. at 265; Exh. 9 at 2. Curiously, a Level II Vocational Assessment completed by the student merely describes interests without any discussion of abilities. Exh. 6. As stated by , in general education, the interest inventory is not meant to reflect the child’s aptitude. Tr. at 270. However, in the absence of any aptitude assessment, there is no reasonable context for the viability of career interests.

In reviewing the child’s experience at Therapy Programs, suggested that the school did not offer special education. Tr. at 294. In doing so, she totally neglected the therapeutic aspect of the program, one which included a therapeutic milieu with individual and group therapy sessions, family counseling, weekly psychotherapy sessions, a treatment clinician and regular therapeutic assignments. Similarly, stated that, “There didn’t seem to be special education services in the paperwork . . . . I didn’t see anything regarding a special ed teacher assigned to anything or any type of specially designed program for the student. . . . such as an IEP . . . I saw classes that are given in the typical high school.” Tr. at 303. In this manner, largely ignored the value of as a therapeutic placement. Although the Department stipulated to the fact that received counseling and therapeutic services at and , again marginalized the significance of these. Rather, she persisted in focusing almost exclusively on cognitive abilities as an index of disability. Again, the Department’s approach ignores the existence of emotional dysfunction as a well-established educational classification. See 8 NYCRR § 200.1 §§ (zz)(4).

Indeed, I believe the Department’s reasoning is little more than circuitous mumbo jumbo which neglects the emotional status of the child. A psychiatric referral to by definition precludes a child from accessing the curriculum where that child is asked to leave the school building. Moreover, if a child cannot attend classes and is deemed unsafe within the school environment, he cannot “access the curriculum.” A psychiatric referral and a recommendation that be removed from school are the legacies of viewing the student’s disability as purely cognitive in nature.

insisted that the basis for her determination that did not need further special education supports was the eligibility committee’s determination that a §504 plan would adequately service the student’s needs. Tr. at 308-309. In essence, did not require classification because the CSE said so; the CSE said so because it said so. Similarly, offered general statements about the need for a functional behavior analysis but did not establish with any certainty why educational programming did not require this intervention. Tr. at 300-301.

The Parents’ Case and Summary of Witness Testimony is the student’s mother. She provided a brief educational history of her son, noting that as early as pre-school, was evaluated by several psychiatrists including personnel at the (hereinafter “ ”) and ultimately diagnosed with ADHD and executive functioning deficits. In response, the Parents provided private executive function coaching and speech therapy. In fact, testified that she took many parenting classes on ADHD and studied to become an ADHD coach herself.

In kindergarten, was classified as other health impaired and assigned to a collaborative teaching classroom. Tr. at 323. This was a positive experience for her son, one in which could avail himself of special education supports while functioning within a mainstream environment. By the middle of second grade, however, the CSE determined that should be declassified and assigned to a regular education classroom. Tr. at 350. As first and only academic success had occurred within the small context of an integrated classroom, the Parent sought an alternative educational placement.

Thereafter, began school at the and remained there through eighth grade. Although the enriched pupil: personnel environment at was initially successful, became the object of intense bullying at some point during seventh grade. Despite efforts to engage the School’s cooperation, the classroom bullying had a devastating impact upon The student became extremely depressed and developed concerns about her son’s physical safety. As a result, the Parents elected not to send to ’s high school. Instead, applied and was accepted to for Fine Arts (hereinafter “ ”).

Concerned that would be leaving a small, supportive academic environment to enter a large public high school, contacted ’s Parent Coordinator in order to prepare for upcoming year. At this time, was advised to obtain an evaluation which would confirm need for a §504 plan. Ultimately, an updated psychological assessment was obtained by the Parents and shared with personnel. Nevertheless, noted that despite her application and submissions in support of a §504 plan, she was unsure if this had ever been effectuated. In fact, she had never heard back from the Department after supplying her current evaluations and there is no updated plan in the record.

In September 2015, was assigned to a guidance counselor at . At this time, the Parents advised the counselor as to their son’s ADHD, his need for medication twice daily and the challenges he experienced emotionally and academically. The Parents were hopeful and optimistic that would be a successful placement. By October 2015, however, the Parent testified that she was receiving daily phone calls from the child’s teachers, school nurse and administration.

was decompensating rapidly.

Desperate to find friendship, the student had accepted the overtures of students engaged in negative and self-destructive behaviors. The Parents observed their child sleeping frequently, losing excessive amounts of weight, experiencing panic attacks and behaving both oppositional and defiant. Despite private therapeutic intervention, impulsivity, anxiety, hyperactivity and aggression were out of control and the student was becoming dangerous to himself and others.

In January 2016, one of the student’s friends committed suicide and this seems to have become the impetus for own suicidal ideation. When the student’s suicidal thoughts became alarming, friends alerted school personnel. The Parents were advised to pick up their child immediately from and obtain psychiatric clearance before he could return. Nevertheless, school officials were unable to find the student when the Parents arrived and police were dispatched to assist in a missing person search. That evening was seen at and discharged to his private therapist. The student was cleared to return to school and the daily phone calls from school personnel resumed. Tr. at 328-330, 334.

Shortly thereafter, the student became the subject of bullying and when credible evidence of physical danger surfaced, friend again alerted school personnel. At this time, school personnel advised the Parents that should be removed from school as it was no longer safe for him to remain. Within days, the located a private therapeutic program in with the hope that psychiatric status would stabilize away from those who would harm him. Tr. at 340. On January 26, 2016, began treatment at the therapy program. On April 4, 2016, the Parents updated the Department of Education as to the emotional deterioration of their son at and his need for an intense residential psychiatric program in a safe environment. The noted that the program consisted of intense psychiatric treatment along with alcohol and drug intervention. In furtherance thereof, the Parents requested a CSE meeting and offered permission for whatever evaluations would be necessary. Exh. I.

On May 4, 2016, was cleared by for a non-wilderness program which would additionally include intense therapeutic support. That day, the student began attending , a less restrictive but intensely therapeutic educational program. completed the program on August 17, 2017. On June 19, 2017, the , again, provided notice to the Department that would be attending an out-of-state residential facility. Exh. D. There is no evidence that the Department ever conducted a CSE review, prepared an IEP, requested evaluations or in any other manner involved themselves in the education of until 2018.

In February 2018, the Department, at long last, requested an evaluation of Part of this delay was occasioned by absence from New York State. At this time, educational testing indicated that the student was functioning at an average to above-average academic level. The child’s emotional stability was assessed via self-report, an interview with the student and a 2015 Psycho-Educational assessment provided by the Parents. The CSE once more concluded that had no educational or emotional needs. Ech. 1. Although the Department makes much of the fact that was taking courses at , it neglects the fact that these were online high classes designed to meet the requirements for ninth grade, a year in which did not receive credit at . Tr. at 408

Ultimately, the CSE recommended the use of positive reinforcement and incentives to reinforce academic engagement, both strategies reflecting little more than best practices for any teacher and student. It additionally recommended the use of a “personal weekly calendar,” one-to-one check-ins and a graphic organizer. Exh. 1 at 5-6. While stressing the academic growth had demonstrated, at the 2018 proceedings, the Department, nevertheless, marginalized the intense academic and emotional support her son was receiving. As a result, the Parent remained concerned about the adequacy of the skeletal support recommended for Tr. at 373. Indeed, grades cannot be the lone arbiter of academic success. emotional and educational growth did not occur in a vacuum. Rather, it was ever developing and emergent in nature.

additionally testified on behalf of the Parent. She is the Assistant Director of , a role she has held for the past nine years. As the Assistant Director, she is personally familiar with who viewed her as a resource of emotional support. Tr. at 399. She described the School as a transitional step-down program for those who are transitioning from more restrictive environments. An applied behavioral approach is utilized along with intense emotional and academic coaching. The School focuses on internalizing the progress students have made from more structured programs and reinforcing emergent skills in appropriate self-governance. Tr. at 388. There are presently 33 students in the program. Approximately two to eight students are assigned to each classroom. All instructors are certified teachers. Empirically established teaching methodologies address nonverbal learning disorders, ADHD support, executive function, and emotional support. Students are instructed in the principals of mindfulness, validation and emotional regulation. This includes dialectical behavior therapy, a technique developed to treat suicidal patients.

All of ’ students have transitioned from more restrictive levels of psychiatric care and reflect a range of psychiatric diagnoses (i.e. bipolar disorders, depression, eating disorders, substance abuse). Tr. at 413. Many of its students have IEPs or § 504 plans although utilizes their own educational plan called the MAPP. They do not serve children with significant intellectual impairments. Weekly phone calls from the students and School are made to Parents. In addition, family therapy calls are made along with email and text communications. Therapy is generally mandated at a minimum twice a week, but these sessions are intentionally held off-campus in a bid towards encouraging student responsibility and independence. Tr. at 413.

The witness testified that exhibited significant ADHD and needed significant support with executive functioning skills such as organization and time management. Issues with authority, defiance and respect were additionally addressed. was encouraged to develop a positive self-image and to learn how to regulate his emotions honestly so that transparent communications were possible. Along with these goals, substance abuse remained a collateral theme. Beyond academics, meaningful interpersonal communication with family members and school personnel were emotional goals developed for the student. Tr. at 402. Students are constantly monitored informally in addition to weekly therapy and monthly feedback regarding the overarching MAPP goals. Family phone calls provide additional feedback as to the emotional stability and progress a child is making. Tr. at 405- 406.

summarized her direct testimony by describing as a child who really struggled to follow the parameters our rules given his disabilities and emotional dysregulation at times – and someone I feel extra proud of his accomplishments.” Tr. at 407. She noted that he “certainly had his ups and downs. He made some impulsive decisions around a number of different core areas – that were struggles for him and were - kind of soul-searching moments.” Ibid. Indeed, even with academic accommodations, continued to struggle with handing in assignments in a timely fashion. Tr. at 420. estimated that the student was subject to disciplinary action approximately three to four times during his stay. As such, she believed continued to require academic and emotional support, even during his stay at . As a result, she opined that she did not believe a §504 plan was adequate for the student as previously demonstrated at . Tr. at 420.

The Department’s Position

The Department maintains that a §504 plan was an appropriate educational recommendation for the child. As such, its actions were valid and consistent with its mandate pursuant to both Educ. Law §4402(2)(a) and 8N.Y.C. §200.6 §(a)(1). As such, it maintains that all timelines were appropriately observed and that, if any procedural defects were present, none had an impact upon the Parents’ substantive right to participate fully in its CSE meeting. Inherent within this position, the Department asserts that the IDEA simply requires the Department to provide a free and appropriate public education (hereinafter referred to as a “FAPE”) and is not compelled to maximize or optimize the child's educational benefits. In view of the foregoing, the Department maintains that compliance with its IDEA mandate is predicated upon the development of an educational program, which accurately reflects the results of evaluations designed to identify the child’s needs, and develops strategies and interventions directed at remediating these educational deficits. Its duty is fulfilled by the implementation of a plan “reasonably calculated to confer an educational benefit upon the child” beyond “mere trivial advancement” (Application of the XXX Central Department, Appeal No. 08- 005, citing Cerra v. Pauling Cent. Sch. Dist, 427 F.3d 186, 192 [2d Cir.2005]).

The District further maintains that the and placements were not appropriate placement for the student as their programs were unduly restrictive and did not comport with the notion of furnishing services within the least restrictive environment.

The Parents’ Position

The Parents assert that the Department stands in abrogation of its duty to provide with a free and appropriate public education for the 2015-2016, 2016-2017 and 2017-2018 school years in violation of the IDEA and Section 504 of the Rehabilitation Act. See 20 U.S.C. § 1412 (a)(1)(1997); 20 U.S.C. § 1401 (11)(1997). Specifically, the Parents assert that the 2018 CSE convene did not include appropriate evaluative measures of the student. Beyond this, the Parents note that the Department violated timeline requirements by ignoring their requests for CSE intervention. Thus, it is their position that both substantive and procedural errors compromised the integrity of the Department’s educational planning, compelling nullification of the 2018 §504 plan.

As such, it did not offer a program with individualized instruction, reflecting the actual extent of the student’s ADHD and executive functioning deficits. Moreover, the Department’s failure to classify neglected, marginalized and ignored the panoply of psychiatric and emotional issues which precipitated his discharge from in the first place. In furtherance thereof, counsel maintains that the Department’s §504 plan broadly neglected the student’s academic, emotional and social needs such that the Parents were compelled to unilaterally place their child in a non-public residential school placement (Board of Education of the Hendrick Hudson Central Department, Westchester County, et al., v. Amy Rowley, by her Parents’, Rowley et el., 58 US l76, at 206; Walczak v. Florida UFSD, 142 F.3d 119 (2d Cir.1998).

Consistent with their argument, the Parents contend that and constituted an appropriate placement for their son during the 2017-2018 school years and, furthermore, that there are no equitable factors which, pursuant to School Committee of the Town of Burlington v. Department, Massachusetts, 471 U.S. 359 [1985], militate against an award of reimbursement.

Procedural History of the Within Matter and Equities

On December 22, 2017, the Parent initiated a Due Process Complaint against the Department of Education. Following the expiration of the Resolution Period, a status conference was held on February 26, 2018. At this time, the Department’s attorney, , Esq. indicated that the matter was still being investigated. Tr. at 13-16. Urged by the undersigned to expedite the settlement process, a second status conference was scheduled for May 16, 2018. Although the Parents’ attorneys had been ready to proceed to trial on this day, a status conference was held, based upon an “eleventh hour” call from the Department, indicating that a settlement was likely. Tr. at 25. On this date, , Esq., the Department’s representative, indicated that there was a “high probability that the matter will result in settlement” and requested an opportunity to further the settlement process.

On July 2, 2018, the parties reconvened and now stated, “Indeed, a final settlement determination has been made in this case. It has been communicated to counsel . . . We are all of the same mind that we will (sic) like to have this matter resolved through settlement negotiations.” Thereafter, the proceedings continued on August 2, 2018. Although an unspecified issued remained outstanding, represented that no more than three weeks were required to reach an agreement, pending counsel approval. Tr. at 39. By this time, the Parents had apparently furnished the necessary documentation and it appeared to all that a settlement would be consummated shortly.

On October 17, 2018, the proceedings continued. By now, was no longer employed by the Department and reappeared on behalf of the Department. Other than identifying himself and joining in a motion to extend the timeline, said nothing. At this time, the Parents’ attorney continued to believe the matter would settle and requested additional time so that the Department could assign a new attorney to ’s case. Tr. at 47.

On January 10, 2019, a new attorney, , Esq. appeared on behalf of the Department. indicated that she had been assigned to try the case. She noted, “ The information I received is that one of my colleagues was assigned the matter for settlement . . . I’m not sure documents wound up in the appropriate hands of an attorney for settlement, but that’s the information I have, so that’s sorted out.” Tr. at 53-54. The Parents’ attorney offered to resend the child’s file, although she noted that it had just been re-sent on December 17, 2018. She, too, suggested that the matter had been assigned for settlement.

On March 19, 2019, a conference call was held. In the course of discussions, yet again a new Department attorney, , Esq., now indicated - fifteen months after the Parents’ Due Process Request, that the matter could not be settled. Notwithstanding prior representations that the matter was referred for settlement and would only need “three more weeks to resolve,” Department personnel no longer believed this was feasible, although no basis for this turn-around was shared. Tr. at 63. The matter was scheduled for trial on May 21, 2019.

On May 21, 2019, evidence and opening statements were taken. appeared on behalf of the Department and indicated that the Department had been equally prejudiced by the delay in litigation as her primary witness was now on maternity leave. She similarly alleged that the schools had ignored her subpoenas and failed to provide her with the student’s records. None of this had ever been mentioned previously and, in fact, on January 10, 2019, the Parents’ attorney offered to resend the child’s educational file. When asked why this matter was suddenly NOT being settled after Department personnel had repeatedly indicated that settlement was forthcoming, stated, “And we will certainly tell you the reason why this case is not settling. This student was determined to be ineligible for special education services. And our case will show why.” Tr. at 81.

Given the Department’s claim that they had been equally grievously prejudiced by its own delays, the matter was adjourned to September 2019 so that the Department’s witness would now be available and compliance with subpoenas assured. The matter was continued on September 10, 2019. The Department was now represented by , Esq., its fifth attorney. At this time, the Department’s attorney indicated that their witness was no longer on maternity leave but was on child-care leave. It should be noted that previous offers to take this witness’ testimony via affidavit or telephone were rebuffed by the Department. Ms. Everett-Johnson further indicated that an additional witness, well aware of the date her testimony was to be taken, was now unavailable as it was a “professional development day.” Tr. at 319.

I find that the Department’s actions were unconscionable. If ’s statement is true, there is absolutely no reason why the Department could not arrive at this conclusion earlier in the case when , the Parents’ attorney was ready for trial. But for the representations of the Department, this case would have proceeded expeditiously. Instead, five different Department attorneys were assigned to this matter and records were misplaced or wrongfully routed. The only individual who had consistent knowledge of the facts in this matter had represented that the case would be settled. Most significantly, the Parents lost a key witness, significantly prejudicing their ability to establish the appropriateness of their unilateral placement. Tr. at 422-424

’s comment that the case would not be settle because was “ineligible for classification” is an outrageous miscarriage of justice. Clearly, the Department took this position in February 2018, a year and a half earlier, when it issued a letter indicating that was not entitled to special education services. Exh. 1. In contrast, there was no explanation as to the Department’s about-face in determining that a settlement would be forthcoming in “three weeks.”

While the Department may be entitled to reverse a settlement offer, based upon new information or facts, this was clearly not the case at bar. Rather, refused to discuss this issue at all.

The Parents were entitled to rely upon the Department’s representations that the matter would be settled, particularly after months of negotiations and representations. ’s lack of transparency and the refusal to explain the Department’s reversal cuts to the very integrity of the Department. It is a belief in the honesty and ingenuousness of the Department’s personnel which expedites settlements and trials through the ability to form respectful relationships. The actions of the Department in this matter are inconsistent with this goal. Clearly no credible reason was offered for the Department’s u-turn, other than perhaps its own negligence in assessing the case appropriately at the outset. I find that the Department acted in bad faith, dawdling along with the settlement process and offering inconsistent feedback regarding settlement opportunities. Moreover, if is to be believed, the Department’s negligence in assessing the validity of the Parent’s claim constitutes an egregious miscarriage of justice.

While there is a great deal of litigation addressing the Parents’ equitable responsibilities, I find that many of the issues which apply to Parents must apply to the Department as well. In fact, there is clearly precedent for considering a school district’s bad faith actions as noted in 8 NYCRR 200.5 (j)(1)(i). Specifically, the two-year statute of limitations timeline, “. . . shall not apply to a parent if the parent was prevented from requesting the impartial hearing due to specific misrepresentations by the school district that it had resolved the problem forming the basis of the complaint or the school district’s withholding of information from the parent that was required to be provided to the parent under this Part or under Part 201 of this Title.

While Parents are encouraged to be active participants in the educational process by participating in CSE convenes, sharing evaluations, providing notice of unilateral transfers and working collaboratively with school personnel, the same standards should be applied to the Department’s behavior. Such actions include reviewing cases expeditiously, not persistently losing or mis-routing student records, providing CSE representatives and attorneys at hearings and/or status conferences who are familiar with the case and, lastly, engaging with the utmost integrity in the settlement process. Indeed, as a result of the Department’s actions, the Parents lost witnesses which dramatically compromised their ability to litigate their case. While a quick search of the literature addressing bad faith claims appears to involve insurance claims (see Panasia Estates Inc. v Hudson Ins. Co. and Bi Economy Mkt, Inc. v Harleysville Ins. Co. of N.Y., Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 818–819, 169 Cal. Rptr. 691, 620 P.2d 141, New York Ins. Law §2601 et seq.), the essence of these cases address fact patterns in which the insurance carrier has engaged in unreasonable conduct, barring a claimant from recovery. Such conduct includes unreasonable delays, refusals to settle without just cause and/or improper and misleading representations. (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 574, 108 Cal. Rptr. 480, 510 P.2d 1032), or by unreasonably delaying payments due under the policy (Austero v. National Cas. Co. (1978) 84 Cal. App.3d 1, 29–30, 148 Cal. Rptr. 653.

In this matter at bar, the Department failed to act promptly when the Parent filed a Due Process Complaint. It failed to approve or deny the Parents’ claim within a reasonable time. It failed to adopt and implement reasonable standards for the investigation and processing of the Parents’ claim. And finally, aware that the Parent had lost a critical witness, the Department failed to offer a reasonable explanation of its sudden denial of the Parents’ claim. Given all of the above, I find that the Department acted in bad faith. As a result, and on its face, the Department is not entitled to a decision in its favor. Having said this, however, the Courts have long expressed a clear preference for decisions which are based upon substantive law, rather than procedural shortcomings. Although I do not believe bad faith is a “procedural shortcoming,” I will also address the IDEA issues and merits.

General Discussion of Case Law and Statutes

It is clear that the legislative intent of 20 US Code § l4l2 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible (20 U.S.C.Sx.1400 [d][1][A]; see Ms. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 N.Y.C. 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a Department must have an IEP in place for each child with a disability that resides within its jurisdiction. 20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a].

In furtherance thereof, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 N.Y.C. 200.6[a][1]).

In determining the “reasonably calculated” standard, the IDEA does not require the best placement for a student, but rather one at which the student may make educational progress. Most recently, the Courts have reiterated the standards upon which the “reasonably calculated” standard of FAPE must be determined. "The requirement that each child be afforded a FAPE does not guarantee that the district provide everything that might be thought desirable by loving parents" ( B.B. and A.P. o/b/o D.P. vs. the NYC Dept. of Ed. 11-CV-2141 (WFK) (MDG) (Jan. 6, 2012), citing, Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567; D.B. ex rel. K.B. v. New York City Dep't of Educ., No. 10-cv-6183, 2011 WL 4916435 [S.D.N.Y. Oct. 12, 2011][Sweet, J], quoting Walczak, 142 F.3d at 132. Nor must the IEP furnish "every special service necessary to maximize each handicapped child's potential." Rowley, supra at 199.

Rather, the IEP must provide a "basic floor of opportunity consisting of services that are individually designed to provide educational benefit to a child with a disability" (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003); see also Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533- 34). Indeed, a Department "fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement" (A.H. ex rel. JH v. New York City Dep't of Educ., 394 Fed. Appx. 718, 721 [2d Cir. 2010]).

Courts have held, furthermore, that the inquiry into whether a particular IEP is "reasonably calculated" to confer a meaningful educational benefit on a particular student must be made prospectively. See D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598-99 (2d Cir. 2005) (declining to rule whether it is error to consider retrospective evidence, but noting that the First, Third, and Ninth Circuits, as well as district courts within the Second Circuit, had so held); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 636 n.26 (S.D.N.Y. 2011) (discussing lack of Second Circuit precedent requiring only prospective review, but ultimately conducting review limited to information known at time IEP was crafted to reach "the most equitable result"); J.R. ex rel. S.R. v. Bd. of Educ. of City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 (S.D.N.Y. 2004) (courts must "consider the propriety of the IEP with respect to the likelihood that it would benefit [the child] at the time it was devised"). Additionally, the IDEA provides that a Department must include and involve the parents of the disabled child in the development of that child's "educational placement." 20 U.S.C. § 1414(e). Parents, however, may only have input in the process; they do not wield "veto" power over a CSE's school choice. See T.Y. ex rel. T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 420 [2d Cir. ]

Indeed, consistent with Endrew F., supra, the District’s program must not merely create a chance or possibility of progress, it must be reasonably calculated to enable a child to make progress appropriate in light of that child’s circumstances, that is, it must create a likelihood of progress (Endrew F. at 137 S.Ct. 1001). is a child with significant cognitive deficits and should not be subject to the “soft bigotry of low expectations.” Brief of Former Officials of the U.S. Department of Education as Amici Curiae at 6, cited in Endrew F. 137 S.Ct. at 988.

Finally, while both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93).

Having said this, procedural flaws alone do not automatically translate into a denial of FAPE. A violation of FAPE may only be determined when these procedural inadequacies, individually or cumulatively, result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see Arlington Cent. Sch. Dist. v D.K., 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a

FAPE]).

The instant matter additionally presents the question of whether a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate (emphasis ours) education under the IDEA and enroll the child in a private school of their choice. The Supreme Court has established a three-pronged test under School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), which defines those circumstances in which a Board of Education may be compelled to reimburse a parent. Under these guidelines, a unilateral placement may be reimbursed where 1) the CSE's IEP is inappropriate; 2) the parent's placement is educationally appropriate and 3) equitable factors compel a finding of fairness. There is, moreover, no requirement that the placement be state approved or even that it generate IEPs as part of its educational strategy. Florence County Department Four v. Carter by Carter, S.Ct. 361 (1993).

Point II: Consistent with 8 NYCRR 200.2 (a)(7((i) and 20 U.S.C. §1412(a), did the Department of Education violate its mandate by failing to identify as a child with a disability?

The instant matter additionally presents the issue of Child Find as it impacts upon the Department's responsibility to have in effect policies and procedures," by which it will identify, locate, and evaluate "[a]ll children with disabilities residing in the State" to determine whether these children require special education and related services ( § 20 U.S.C. § 1412(a), 1412(a)(3)(A); see also Handberry v. Thompson, 446 F.3rd 335, 347 (2d Cir.2006); A.P. ex rel. Powers v. Woodstock Bd. of Educ., 572 F.Supp.2d 221, 224 (D.Conn.2008) (describing "Child Find" obligations). This "Child Find" obligation extends also to children "who are suspected of being a child with a disability. . . and in need of special education, even though they are advancing from grade to grade. . . ." 34 C.F.R. § 300.111(c)(1); see also Bd. of Educ. v. L.M., 478 F.3d 307, 313 (6th Cir.2007) (noting that § 300.111(c) extends the IDEA's "Child Find" requirement to children "only suspected of having a disability"); Dean v. Sch. Dist. of Niagara Falls, 615 F.Supp.2d 63, 71 (W.D.N.Y. 2009) (same); A.P., 572 F.Supp.2d at 224-25 (same).

Thus, courts have held that a state's Child Find duty is "triggered" when it "has a reason to suspect a disability, and reason to suspect that special education services may be needed to address that disability" (New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F.Supp.2d 394, 400 n. 13 (N.D.N.Y.2004); see also Murphy v. Town of Wallingford, No. 10-CV-278, 2011 WL 1106234, at *3 (D.Conn. Mar. 23, 2011) ("Once a school has reason to suspect a disability, the school must conduct an evaluation of the child within a reasonable time." (internal quotation marks omitted)); Regional Sch. Dist. No. 9 Bd. of Educ. v. Mr. & Mrs. M., No. 07-CV1484, 2009 WL 2514064, at *8 (D.Conn. Aug. 7, 2009) (same); El Paso Indep. Sch. Dist. v. Richard R., 567 F.Supp.2d 918, 950 (W.D.Tex. 2008) (collecting cases). "However, the IDEA is not an absolute liability statute and the “Child Find' provision does not ensure that every child with a disability will be found." A.P., 572 F.Supp.2d at 225 (citing L.M., 478 F.3d at 313).

The IDEA contains a separate sub-section titled "Children in private schools." 20 U.S.C. § 1412(a)(10). This sub-section requires states receiving federal funds to provide special education and related services to "children with disabilities in the State who are enrolled by their parents in private elementary and secondary schools." Id. § 1412(a)(10)(A). Under this provision, "states are required to provide to children voluntarily enrolled in private schools only those services that can be purchased with a proportionate amount of the federal funds received" under Part B of the IDEA. Russman v. Bd. of Educ. of Watervliet,150 F.3rd 219, 221 Cir. 1998). The same child-find requirement applicable to public school children also applies to privately placed children. See 20 U.S.C. § 1412(a)(10)(A)(ii)(I). The goal of this Child Find process is to "ensure the equitable participation of parentally placed private school children with disabilities and an accurate count of such children." Id. § 1412(a)(10)(A)(ii)(II). Federal regulations provide that each local school district's Child Find obligations extend to "children with disabilities who are enrolled by their parents in private, including religious, elementary schools and secondary schools located in the school district served by the [local education agency]." 34 C.F.R. § 300.131(a) (emphasis added).

In furtherance thereof, 8 NYCRR 200.2 (a)(7((i) states: Procedures to locate, identify and evaluate all nonpublic private elementary and secondary school students with disabilities including religious- school children as required by the Education Law must be established to ensure the equitable participation of parentally placed private school students with disabilities and an accurate count of such students. The Child Find activities must be comparable to that for other students attending public school in the school district. The school district shall consult with representatives of private schools and representatives of parents of parental placed private school students with disabilities on the Child Find process sets forth his obligation also extends to "parentally-placed private school children who reside in a State other than the State in which the private schools that they attend are located." Id. § 300.131(f).

Clearly, was off the Department’s “radar.” It did not comply with timelines and failed to include psychiatric records from either , or in its 2018 CSE convene. At the most, a summary report card from the 2016-2017 school year was referenced in the 2018 proceedings. Exh. 1. Although the Department argues that non-adherence to timeliness had no substantive impact upon the child’s educational planning, this is simply untrue. The

Department is required to have an educational plan for each child at the beginning of the school year. Justifying a disregard for mandated timelines because ultimately that child did not require classification is simply an educational form of Russian Roulette. In this manner, the Department gambles that its negligence in conducting evaluations and a CSE convene will be rewarded when a child is not classified. It does not recognize the fact that for the child who is, in fact, classified, services have been denied for an undue period of time.

Sufficiency of evaluations:

Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]). Departments may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

As stated earlier, the Department had inadequate evaluative material when it concluded that did not require classification. As suggested by R.E. v. New York City Dep't of Educ., 694 F.3d 167, 175 (2d Cir.2012), an assessment of the student’s needs must be fact sensitive and responsive to the details of the case. In the matter at bar, the CSE did not meet until well into the 2017-2018 school year. Given this scenario, the Parents were compelled to make an educational decision for their child based upon information, “reasonably known to the parties at the time of the parents’ placement decision.” R.E., 694 F.3rd at 187. Indeed, the Department provided the Parents with no information.

Finally, in making a determination, the courts advocate a “holistic approach” in which multiple factors are considered (Doe v. Cape Elizabeth Sch. Dist., 832 F.3rd 69, 77 (1st Cir. 2016), citing (20 U.S.C. § 1401(3)(A)(ii)). In the matter at bar, this was not done. While the student’s psychiatric function was a primary concern of the Parents, the Department did not include any psychiatric evaluations, records or even testing. I find that its reliance upon the BASC self-report by was naïve, at best, and negligent at worst. challenges with emotional regulation, impulse control, social interactions and relationships were not meaningfully addressed, if they were addressed at all. The record indicates a clear history of suicidal ideation and at-risk behavioral scores. This, too, was not mentioned, nor was the history of bullying which led to remove from its premises due to concerns about the student’s safety.

had no personal knowledge of , had no familiarity with evaluations and did not attend the CSE meeting which found the student ineligible for services. She did not, moreover, discuss the educational evaluation of conducted by in 2017. Exh. 5.

testified that she had no firsthand knowledge of ability to function within a general education classroom and had never even spoken to his parents. Tr. at 276. Incredibly, although opined that the Department’s program was appropriate for , she later testified that she only had a general idea of what transpires in a mainstream high school but did not know the details. Tr. at 283-286. was the only witness who appeared on behalf of the Department, and under these circumstances, I do not believe the Department has met its burden. Clearly, the Department had every reason to believe had psychiatric needs. Yet, the CSE did not meet until February and, even then, it did not conduct appropriate evaluations.

In essence, the Department failed to comply with mandated timelines. When it finally held a CSE convene, it failed to marshal appropriate evaluations and data which would provide a global picture of the child’s needs. It possessed slim academic records and no records reflecting the current school year. It did not include psychiatric assessments and its Education Evaluation report marginalized both clinically significant and at-risk behaviors. The Department’s sole witness had minimal knowledge of the student and the general education program which she was recommending.

Point III: Were and appropriate educational placements for during the 2017-2018 school year?

Specifically, the Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "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 v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir.2006]). 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). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "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 "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. 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; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-111).

Although it is clear that the District’s placement must comport with its LRE requirement, this is not the Parents’ burden. While parents are not held as strictly to the standard of placement in the least restrictive environment as local educational authorities are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (J.C., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111; compare Application of a Child with a Disability, Appeal No. 99-44.

Turning to the question of whether the Parent’s placements at and were appropriate, the parent bears the burden of proof with regard to the appropriateness of the educational program for which they seek reimbursement during the 2017-2018 school year (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-111). In order to meet that burden, the Parent must show that both and offered an educational program, which met her son’s special education needs (Burlington, 471 U.S. at 370; M.S., 231 F.3d at 104-105; Application of a Child with a Disability, Appeal No. 02-111). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-111). While parents are not held as strictly to the standard of placement in the least restrictive environment as local educational authorities are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111).

I find that both and provided an appropriate and meaningful placement for based upon the student profile, small class sizes, over-all small school enrollment, intense therapeutic intervention and remedial programming. The record indicates that is intensely supervised step-down program for students articulating from psychiatric programs and facilities. It includes a great deal of one-to-one tutoring and full-time supervision in its residential facility. Exh. L. As no witness was available to testify on behalf of , the appropriateness of this program is based upon the Parent’s testimony and a review of the evidence.

As for , I find the testimony of credible and persuasive. exhibited significant ADHD and needed a great deal of support with executive functioning skills such as organization and time management. Beyond this, she noted that the student continued to demonstrate issues with authority, defiance and respect. was encouraged to develop a positive self-image and to learn how to regulate his emotions honestly so that transparent communications were possible. Along with these goals, substance abuse remained a collateral theme. The school additionally utilizes on-line educational opportunities which enabled to receive credits for ninth grade summarized her direct testimony by describing as a child who “really struggled to follow the parameters of our rules given his disabilities and emotional dysregulation at times - and someone I feel extra proud of his accomplishments.” Tr. at 407. While he “certainly had his ups and downs” and continued to make impulsive decisions,” she opined that the student had made emotional and academic progress. Tr. at 406, 421. Ultimately, her opinion was expressed in the absence of any controverting testimony.

Point IV: Are the Parents entitled to equitable relief pursuant to Burlington, supra, for the 2017- 2018 school year?

Prong three of Burlington provides that equitable considerations may be considered when fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362- 64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660- 61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).

In furtherance thereof, the IDEA permits the denial or reduction of reimbursement when parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist.; 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007]).

The evidence indicates that the Parents participated willingly in their son’s CSE convenes. They did not rely upon the District to meet all of their expectations and independently sought outside consultations and tutoring when able. They willingly shared psychological assessments with Department personnel and acted proactively when the student was left without a school to attend. When asked to consent to evaluations, they did so.

The parent has demonstrated a long history of positive involvement and cooperation with the Department in the absence of adversarial and antagonistic behavior. They provided due and proper notice to the Department of their intention to enroll in a therapeutic residential placement. There is no evidence or testimony to suggest that the Parents operated in nothing other than a cooperative and collaborative manner. Under these circumstances, I find that there are no equitable factors which militate against the Parent’s right to recovery.

Conclusion

I find that the Parents’ request for relief must be granted in part as the Department stands in violation of its Child Find mandate for the 2017-2018 school year. In furtherance thereof, I find that the Parents are additionally entitled to reimbursement of the professional fees related to obtaining

’ 2015 Psychological Evaluation. Exh. 3. Indeed, the Department did not conduct its own psychological assessment, but relied upon the evaluation it obtained from the Parent.

Wherefore, it is hereby ordered that:

Within thirty (30) days of the date of this Order and upon an Affidavit of Attendance , the District shall reimburse and for tuition expenses incurred during the 2017- 2018 school year at both and . This amount shall represent the District’s total liability pursuant to the Parents’ Due Process Complaint dated December 22, 2017.

Dated: February 16, 2020

L. B. Almeleh, Esq. Lynn Botwinik Almeleh, Esq.

New York State Certified Impartial Hearing Officer Persons in Attendance January 22, 2018

For the Parents:

, Esq.

For the Department of Education:

, Esq. (via telephone)

Persons in Attendance February 26, 2018

For the Parents:

, Esq. (via telephone)

For the Department of Education:

, Esq. (via telephone)

Persons in Attendance May 16, 2018

For the Parents:

, Esq. (via telephone)

For the Department of Education:

, Esq. (via telephone)

Persons in Attendance July 2, 2018

For the Parents:

, Esq. (via telephone)

For the Department of Education:

, Esq. (via telephone)

Persons in Attendance August 2, 2018

For the Parents:

, Esq. (via telephone)

, Esq. (via telephone)

Persons in Attendance October 17, 2018

For the Parents:

, Esq. (via telephone)

For the Department of Education:

, Esq. (via telephone)

Persons in Attendance January 10, 2019

For the Parents:

, Esq. (via telephone)

For the Department of Education:

, Esq. (via telephone)

Persons in Attendance March 7, 2019

For the Parents:

, Esq. (via telephone)

For the Department of Education:

, Esq. (via telephone)

Persons in Attendance September 10, 2019

For the Parents:

, Esq.

, Parent

, Parent

For the Department of Education:

, Esq.

, Supervisor of Psychologists, (via telephone)

Persons in Attendance December 4, 2019

For the Parents:

, Esq.

, Parent

, Parent

, Supervisor (via telephone)

For the Department of Education:

, Esq.

, Supervisor of Psychologists, (via telephone)

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

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Footnotes

[1] The CSE representative who did have knowledge was on maternity and child-care leave. Tr. at 175. A second witness indicated that, although she was aware of the date, she was unable to participate as it was a staff development day.