Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 192230

Student’s Name:

Date of Birth:

District Number:

Date of Hearing: July 23, 2020

August 31, 2020

Record Close Date: December 1, 2020

Hearing Officer: Gary D. Peters, Esq.

July 23, 2020

Attorney Parent

DOE Designee Dept. of Education

August 31, 2020

Attorney Parent

DOE Designee Dept. of Education

INTRODUCTION

On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. Section 1415(f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing Case #192230 The hearing was conducted at the Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York or

Remotely. The Department of Education, hereinafter referred to as the “DOE” was represented by their Designee, and the parent was represented by their Attorney

.

Parent’s Evidence

Lette Date Name of Document # of Pages

r

A 1/22/20 DPC 3

B 7/31/19 Parent Letter 3C

C 8/24/20 Parent Affidavit ^[2]

D 8/23/20 School Affidavit 6

E 19-20 Schedule 1

F 19-20 Distance Learning Schedule 1

G 19-20 Comprehensive Student Plan 26

H 2/22/19 School Contract 1

I 8/11/20 Payment Affidavit 1

J 19-20 Parent proof of payment 1

K 2019 Tax Return 4

L 19-20 Attendnace ^[1]

DOE’S EVIDENCE

PARENT’S POSITION

It's the Parent's position that the DOE has failed to offer FAPE; it has offered an 8:1:1 specialized class in , which was an inappropriate placement offer. Additionally, that the program selected by the Parent at the was appropriate and that there are no equitable considerations to bar recovery.

THE DEPARTMENT’S POSITION:

stated that has an autism spectrum disorder and that he struggles in reading, math, and written expression. That has an attention deficit hyperactivity disorder; an unspecified anxiety disorder, and cannot participate and progress in the general education curriculum. There is a significant gap between the academic skill level and chronological age, which requires a specifically specialized designed instruction in order for to make progress.

The CSE team convened prior to the 2019/2020 school year and recommended a , specialized 8:1:1 program would benefit in all areas of deficits. Additionally, recommendations for related services including, counseling, occupational therapy, parent counseling and training, speech-language therapy and a touchscreen tablet assistive technology device was to be provided for academics within school during the day and at home.

stated that the IEP and related documents, including updated teacher progress reports, and goals for this child were appropriate. Other programs were considered, including a community school, a 15:1, and the specialized school, 12:1:1.The CSE determined that the child is not ready to participate in a larger class size of 15 students for academics, requires a 12-month school year given the severity of his cognitive and behavioral issues related to ASD. A community school would not meet his needs and that a specialized , 6:1:1 was deemed too restrictive. A ten-month program, related services and placement was discussed with the parent at the IEP meeting. According to the IEP summary page, the parent and school agreed that should be exempt from City and State-wide testing, as he would not be able to sit for them and is unable to work independently. Accordingly, the CSE recommendations of an 8:1:1 would address all areas that required.

DOE’S CASE

The DOE designee requested an adjournment due to witness availability. I denied the application as the case was filed in January 2020.

The DOE designee stated that it's the Parent's position that the DOE has failed to offer FAPE and will be unable to demonstrate that during this hearing. The DOE has offered an 8:1:1 specialized class in , which was an appropriate placement offer. Additionally, that the program selected by the Parent was not appropriate.

PARENT’S CASE

, submitted an affirmation wherein, she stated that she has a Bachelor's and

Masters degree in Speech Language Pathology, She is currently the Program Director of the special education program at (" " or "

") and has been employed by for approximately 20 years. She initially began at as a speech therapist and then served as the Assistant Program Director.

The Affirmant testified that she is entering her 8th school year as Program Director of ; her duties and responsibilities include supervising all aspects of the school program, including supervising teachers and service providers, handling admissions assessments, observing classrooms, participating in IEP meetings and working directly with teachers and students.

testified that The special education program offers self-contained special education programs hosted within mainstream school sites. This provides the opportunity for students to receive the small full-time special education programming they requires for their academics while still allowing for mainstreaming opportunities as appropriate for each student. Every student in the program has an individually tailored program to address his or her unique special education needs.

enrolls students who are ages 14-18 and totaled approximately 28 students for the 2019-20 school year. Students who come to often have IEP classifications of Autism, Learning Disabilities, Speech Impairment, Intellectual Disabilities and Multiple Disabilities. Each student at is grouped in a class based upon the student's academic, social and learning needs.

is for high school aged students who struggle with significant academic and social delays; the school takes a 3-prong approach focusing on: (1) functional academics, (2)

vocational training; and (3) life skills/daily living skills. The goal of is to ensure that every student who leaves the school has gained independence and skills enabling him to become a productive member of society. The staff takes part in ongoing professional development throughout the year. Examples of topics covered included Nurtured

Heart Approach, Mindfulness, Executive Functioning Skills, Formative Assessment, Language-based learning. The school offers the related services of Speech Therapy, Occupational Therapy, Physical Therapy, Art Therapy and Counseling. All of the service providers in the School are licensed, and certified in their respective disciplines.

At all students have a comprehensive service plan ("CSP") which outlines their programs and goals. The CSP tracks progress throughout the year; progress is measured by the degree of support needed for a student to demonstrate that skill, as he works towards independence. Goals are monitored on a scale of 1-10; 1 is meaning that a goal was recently introduced and requires significant support, and 10 indicating that the student independently mastered the goal. The Affirmant is familiar with as he has attended since September 2019 and was in 9th grade for the 2019-20 school year. As program coordinator she had the opportunity to observe him in the classroom, collaborate with his teachers and speak with his teachers and providers on a daily basis. She worked directly with and that she has a very strong understanding of his needs and his program at . She described as a student with significant delays due to his Autism diagnosis; however, he has a strong interest in engaging with his peers, making them laugh and enjoying the social aspects of school.

Academic and "learning" class time is difficult for , especially in the areas of reading, math and written expression. At the start of the year, did not want to be a student and was afraid of failing. He would give up before even trying an activity or assignment because he expected to fail. As a result, he would become disruptive and display inappropriate behaviors in the classroom.

As the 2019-20 school year was first year in high school; his curriculum and program was designed to help him begin learning independence and recognize that it is ok to take academic risks and make mistakes. From the outset, began the 2019-20 school year with goals to help him become a student and learner in the classroom.

stated that she has a doctorate and Masters in Psychology, and has certification from . He and the team developed a chart for that he would keep in his pocket. began each day by picking up his goal chart and end each day by handing it in. This goal chart became central to learning as it included 3 main goals: (1) to arrive on time to class; (2) to utilize appropriate behavior in class; and (3) not to disrupt class.

Throughout each period of the day, teachers would review chart; they provided "checks" and immediate feedback as to whether reached his goals. This feedback and these 3 goals served as a visual motivator to to keep him engaged and on track for class. Teachers adjusted goal chart periodically as they reflected at weekly staff meetings about specific behaviors and concerns that would be best addressed consistently through this chart. The goal referred to as "Do my work" was added to his program following the meeting. The importance of this goal chart in helping was most evident in that as the year progressed, actually came to and asked to add another goal to his goal chart. For this was amazing progress as it demonstrated that he had begun to internalize the expectations of the classroom and what was required to be a "student" in his class. realized that the goal chart helped keep him on track and that he had ownership of his schoolwork.

school day then included a combination of functional, academic classes designed to address underlying skill development and daily living skills as well as an introduction to vocational learning. These classes are all set forth in his class schedule (which represents pre-distance learning programming). main cohort was a class of 5 students who all presented with similar needs and levels. These students all participated together in reading, writing, science and world awareness class. reading class was a 5:1:1 class taught by Sara Turner.

has a Masters in Science and is a NY state certified teacher for students with disabilities. The 5:1:1 ratio for reading and writing was of critical importance for as he required a significant amount of individualized attention during these classes. At the start of the year, would often require the teacher or assistant teacher sit directly with him to help him initiate an assigned task, sustain attention and get past moments when he would get "stuck" and need support to remain academically engaged in the class.

In reading, class addressed critical thinking, with a focus on learning how to summarize a passage while making sure to look for the 5 "Wh's" of who, what, when, why and where in their reading. The class also focused on improving vocabulary. required a tremendous amount of support for reading. Over the course of the year, “we saw make progress in reading” and he became more independent and willing to read. started the school year mainly at levels 1-2 which placed him at needing the highest level of direct instruction. He ended the school year at an overall level 4 indicating that he made strong progress in internalizing skills and becoming more independent in his reading.

had writing (written expression) with in this same group of 5:1:1. For writing was computer based with the use of a chromebook. class focused on how to write descriptions and narrations. The overall goal of writing program was to teach the class how to write to communicate. Over the school year, writing improved in that he would start to initiate on his own, his writing became more descriptive and his work demonstrated that he made overall gains in independence in his writing.

math program was taught in a group of three students including ; the class was taught by . She has a Master’s in Education with a specialization in Autism.

math class was a functional class with a focus on money and to how to handle math in daily life situations. For this included learning how to use a calculator to solve math equations involving money as well as estimating and rounding money amounts to help in making purchases. made important progress in math over the 2019-20 school year as he became more willing to take risks in math. learned how to use a calculator with increased proficiency, which is a key step to learning functional math.

has a Masters in Science in Special education and is a NY State permanent certification special education teacher taught a world awareness class designed to close gaps in the student's knowledge and to increase his confidence when communicating. learned about what role water and electricity play in a home, fire danger and prevention and what to do in an emergency. The world awareness class helped learn about safety and managing a home.

also had science in a group of five students taught by . The science class overlapped in concepts with world awareness class including electricity. science class utilized a skills based curriculum that focused on how to make predictions, follow a sequence of steps and retell steps that occurred, all while conducting experiments.

program also included both a typing and computer class to help him with life skills. The skills include basic computer skills such as sending an email, learning how to "google" to find information and how to conduct research on the internet. These skills are necessary to grow into an independent adult as well as to prepare for vocational experiences. During the 2019-20 school year had his first vocational training experience; he worked at

Party City once a week with a peer, and was supported by a job coach. When he first started his vocational training, he needed direct support from his job coach to perform each task that was assigned. However, as he grew in confidence, he became more comfortable and able to handle tasks on his own and to work more cooperatively with his peerworker.

program included a robust related services component, including: adaptive skills, once a week in a group of 4, led by the school physical therapist, art therapy once a week in a group of 3; counseling once a week individually; group counseling 3:1 once a week; occupational therapy 1:1 twice a week; and speech therapy 1:1 twice a week (one push in and one pull out).

checked in with every morning and at the end of every day to review his goal card; he learned to self-advocate and take initiative when he felt that he needed support. The ability to self-advocate was great progress for

There were weekly meeting between teachers and related service providers. The affiant coordinated and led these meetings to ensure that teachers and providers were targeting his goals with a consistent and collaborative approach. She or a colleague met with each teacher and therapist to provide guidance and support to assure that academic, social-emotional, and therapeutic needs were being met. There is ongoing collaboration between all staff on a daily basis.

During COVID, as of March 16, 2020 program turned to a virtual/distance learning model. The goal of 's distance learning program was to provide a structured experience that allowed students to continue learning. Recognizing that for some students, extended periods of time in front of a computer screen was very difficult; the program aimed to ensure that students continued to receive their core academic instruction of reading, writing, math and science, as well as related services. During COVID continued to have direct instruction in reading, writing, math and science, He also received OT, Speech, Adaptive Physical Education, Art therapy, and Counseling. All instruction was provided on zoom, using two way audio and video. Notably, although program included counseling twice a week, had considerably more support from the psychologist. teachers and providers went “above and beyond” to help him maintain a sense of connection to his school, teachers and classmates. Teachers facilitated social opportunities among students over zoom separate from scheduled class time. teacher would take turns calling to wish him a good weekend and was in consistent contact with serving as a resource to help both him and his family manage the transition to remote learning.

has a religious component to the schedule. As set forth in the schedule; Prayer, Bible Text, Jewish law (and oral law), as well as Bible Portion are religious in nature; the remainder of the school day was secular in. As per the daily class schedule, program prior to COVID was 73.42% secular per week. The remote learning schedule indicates that program was 76.81% secular per week. secular schedule during distance learning equates to 76.81% , made clear and consistent progress from September 2019 to June 2020.

stated that his progress can be attributed to the staff at , the environment and the intensive support he receives. The small classes and individualized approach have helped grow as an academic and social student. Overall, appropriately met needs for the 2019-20 school year.

Upon cross-examination, the witness reiterated that she has visited ’s classroom multiple times and worked with him during class in order to assist and assess him. She viewed the IEP for the 2019/2020 school year, which recommended for a program; she is familiar with the program but hasn’t observed it. However, she was familiar with the methodologies that the program utilizes to the extent that she participated in a multitude of IEP conferences.

confirmed that the program has approximately, 73% of secular studies per week. She joined many of ’s classes over Zoom in order to ascertain how a is functioning. Regarding the related services as per the IEP, received counseling at least twice a week, OT 2 x week and SLT 3 x week. When the remote learning began, stated that “we” recreated the cover page to reflect the services; as of March 2020, there is one individual push-in and one individual pull-out session. In the last four or five months of school during the very challenging time, the primary function of the remote learning experience was to enable to continue to have the structure and routine of his school day and to be able to interact with his skilled teachers and therapists. Additionally, to assist with emotional support while still providing academic experiences. The the ratings on his comprehensive student documents indicate that progress continued to increase “but that being said, when we're dealing with a student on the autism spectrum, progress is slow”.

On redirect examination, the witness stated that the schedule for reading is separate from writing, so there are additional ELA period throughout the week, and had 6 x 40 minutes a week of ELA.

submitted an affidavit in lieu of testimony and stated that she is ’s mother; that her son is a 15-year-old student who is diagnosed with Autism. She described him as young man who likes to laugh and have social interactions. However, “school comes very hard to him and he is very delayed in terms of academics”. Her son has had services from the DOE since he was in CPSE.

began attending the program for the 2012-13 school year and began in the program in September 2019. An IEP meeting was convened on February 9, 2019 in preparation for the 2019-20 school year.

At this meeting, the CSE recommended an 8:1:1 special class in a specialized school ( program). She expressed concern that an 8:1:1 would be too large of a class for son and that it was concerning, as in prior years her son was recommended for a 6:1:1 class. During the meeting, there were discussions about how at the time of the review, was in an 8:1:3 class and had ELA in a group of 2:1 and math in a group of 5:1. Both she and teachers spoke to the level of support and smaller setting that he required. The CSE continued to recommend an 8:1:1 class. Additionally, her son’s behavioral struggles were discussed and the team was told about ’s individualized behavioral plan. After this meeting, The Parent received the proposed IEP and a placement offer. stated that the IEP did not include a behavior plan despite the discussion about the need for a BIP during the IEP meeting. Upon receiving the placement offer for , in July 2019, the Parent arranged to visit the school to learn about how it would work for her son. However, based upon her visit, she did not feel this placement was appropriate, as the DOE was not forthcoming with information about the program. When she requested general information about the functioning of the students in the proposed class, the school refused to provide any information, which led her to believe that it was not an appropriate setting for him. The Parent was not able to see the classroom, which she believed was critical in order to make her decision, as her son was entering high school. The recommended placement was located in a middle school and the Parent was concerned about how her son would be placed in a “vocational program”.

Lastly, her son has made progress at . The Parent stated that if the DOE had offered an appropriate placement for the 2019-2020 school year, that she would have accepted same. The tuition for was $97,000.00; she paid $5050.00 and that an outside organization paid the sum of $6600.00; based upon her tax return, that she cannot afford payment to .

THE DEPARTMENT’S CASE

The DOE rested and failed to provide documentary evidence or witnesses and rested.

FINDINGS OF FACT AND CONCLUSIONS

The purpose behind the Individuals with Disabilities Education Act (IDEA) is to (20 U.S.C. section 1400-1482) ensure that students with disabilities have available to them a FAPE; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. Of Education v. Rowley 458

S. CT. 176, 179-81 [1982]; Frank G. v. Bd. Of Edu. 459 F. 3d 356 371 92d Cir 2006). A FAPE includes special education and related services designed to meet the student’s unique need provided in conformity with a comprehensive written IEP (20 U.S.C. section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 ‘d’; 34 CFR Section

200-347_; The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a][5][A]; CFR section 300.13 [a][2][i], 200.1.116 [a][2]; 8 NYCRR 200.6 [a][1]; see Walczak v. Fla Union Free School Dist. 142 F. 3d 119, 132 [2d cir. 1998].This hearing was requested pursuant to the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. §1404 et seq.

(“IDEA”).

“Congress enacted the IDEA ‘to ensure that all children with disabilities have available to them a free appropriate public education…designed to meet their unique needs… [and] to ensure that the rights of children with disabilities and parents of such children are protected.’ ” M.H. v. N.Y.C. Dep’t. of Educ., 685 F.3d 217m 223 (2d Cir. 2012) (quoting 20 U.S.C. §1400(d)(1)(A)-(B)). The IDEA mandates that students with disabilities must be provided with a FAPE tailored to meet their unique needs and one that is reasonably calculated to “enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., __ U.S. __, 137 S.Ct. 988,999 (2017); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982); SRO 17-007, p. 10. A focus on the particular child is at the core of the IDEA. Endrew F., 137 S. Ct. at 999.

To meet the IDEA’s requirements, a school district’s program must provide special education and related services that is “ʻspecifically designed’ to meet a child’s ‘unique needs’ ” and is reasonably calculated to enable the child to receive educational benefits.

Endrew F., 137 S.Ct. at 999 (emphasis in original); M.H., supra, 685 F.3d at 224 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007)).The legal standard applicable to request for payment for educational services such as in this case is well established. A Department of Education may be required to pay for educational services obtained for a child by the child’s parents if: 1. the services offered by the Department of Education were inadequate or inappropriate, 2. the services selected by the parents were appropriate and 3, equitable considerations support the parent’s claims (Sch.

Comm. Of Burlington v. Dept. of Educ. 471 U.S. 359 [1985]; Florence County Sch. Dist.

Foru v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Center, School Dist. 427 F. 3d 186, 192 [2d Cir. 2005] “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 developed a proper IEP. Under the second criteria of the legal standard, the child’s parent bears the burden of proof with regard to appropriateness of the services which the parents obtained for the child for the current school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. Of Education of the Monroe-Woodbury CSE, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57, in order to meet that burden, the parent must show that the services were “proper under the act”, (IDEA) (Burlington 471 U.S. at 370) i.e. that the private school offered an educational program which met the child’s special educational needs (Application of a Child with a Disability, Appeal No. 94-29).

The test for the parent’s private placement is that it is appropriate not that it is perfect (M.S. v Bd. Of Educ, 231 F 3d 96, 105 [2d Cit. 2000] cert. denied 532 U.S. 942 2001. The private school need not employ certified special education teachers, nor have its own IEP for the student. While parents are not held as strictly to the standard of placement in the LR as school districts are restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. School Comm. 315 F. 3d, 21, 26-17 [1st Cir. 2002]

The final criterion of an award of tuition reimbursement is that the petitioners’ claim is supported by equitable considerations (Carmel Centre Sch. Dist. V.V.P. 373 F Supp. 2d 402, 416 [S.D.N.Y. 2005] aff’d 2006 SL 2334140 (2d cir. 2006); (Frank G. 459 F, 3d at 363-64), Equitable considerations are relevant to fashion relief under the IDEA (Burlington 471 U.S. at 374; Mrs. C. v. Voluntown Bd. Of Edu. 226 F. 3d 60, 68 [2d Cit.

2000]; see Carter, 510 U.S. at 16 (noting that [c]ourts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required) such considerations include the parties, compliance or non-compliance with state and federal regulations pending review the reasonableness of the parties’ positions and like matters (Wolfe v. Taconic Hills Cent.

Sch. Dist. 167 F. Supp 2d 530, 533 [N.D.N.Y. 2001] citing Town of Burlington v. Dept. of Educ. 736 F. 2ds at 773, 801-02 [1st Cir. 1984] aff’d 471 U.S. 359 [1985]; with respect to equitable considerations, tuition 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 finding of unreasonableness with respect other action taken by the parents 20 U.S.C. section 1412 (a)(10)(C)(iii) Warren G. v.

Cumberland Co. Sc. Dist. 190 F 3d 80, 86 (32d Cir. 1999); see Application of the Bd. Of

Edu. Appeal No. 04-102; Application of the Bd. Of Educ. Appeal No. 04-026).

However, reimbursement may not be denied or reduced for failure to provide such notice where compliance with the notice required would likely result in physical or emotional harm 20 U.S.C. 14122 (a)(C)(iv)(I)(cc)(II)(bb).A denial of FAPE can be one that is substantive or results from violations of the procedural protections of the IDEA and its implementing regulations. Procedural violations result in the denial of FAPE “if they ‘impeded the child’s right to a [FAPE},’ ‘significantly impeded the parents’ opportunity to participate in the decision-making process,’ or ‘caused a deprivation of educational benefits.’ ” 20 U.S.C. §1415(f)(3)(C)(ii); A.C. ex rel. M.C. v. Bd. of Educ. of Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); see also Werner v. Clarkstown Cent.

Sch. Dist., 363 F. Supp. 2d 656, 659 (S.D.N.Y. 2005) (“Multiple procedural violations may cumulatively result in the denial of FAPE even if the violations considered individually do not.”)

In sum, Rowley stands for a two-part entitlement: eligible families are entitled to an IEP that both (a) affords a placement that, substantively, is “reasonably calculated” to afford meaningful educational benefit to the child, and (b) is developed in procedural accordance with the requirements of federal law. In this jurisdiction, the standard by which the appropriateness of a private placement is measured was articulated by the Second Circuit in the case of Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364–65 (2d Cir. 2006).

In Frank G., the Court recognized that parents seeking reimbursement for a private placement bear the burden of demonstrating that the private placement is appropriate, even if the proposal in the IEP is inappropriate (citing M.S., 231 F.3d at 104). The Court stated that a request for reimbursement will not be barred even though the private school the parents choose does not meet the IDEA definition of a FAPE (see 20 U.S.C. § 1401(9) or state education requirements (see Carter, 510 U.S. at 14).No one factor is necessarily dispositive in determining whether parents' unilateral placement is appropriate and “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. at 207. 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. See Knable ex rel. Knable v. Bexley City Sch.

Dist., 238 F.3d 755 (6th Cir.2001).

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.

See M. S., 231 F.3d at 105. 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.” Rowley, 458 U.S. at 188–89 (internal quotation marks omitted)

More recently, in T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 877-78 (2d Cir.

2016), the Second Circuit reaffirmed that parents “bear a lower burden” of demonstrating the appropriateness of a private placement than school districts do in establishing the provision of a FAPE. Indeed, parents are not barred from reimbursement simply because the private school they choose does not meet the IDEA definition of a FAPE. Once again, parents are only required to demonstrate that the private placement was appropriate, i.e., reasonably calculated to provide educational benefit, as evidenced by the progress made at the private school. The private school does not have to provide every related service on site, nor hire certified special education teachers, or even provide an IEP for the disabled student. Additionally, parents “may not be subject to the same mainstreaming requirements as a school board.” M.S., 231 F.3d at 105 (citing Warren G. v. Cumberland

County Sch. Dist., 190 F.3d 80, 84 (3d Cir.1999). In sum, the test for the private placement “is that it is appropriate, and not that it is perfect.” C.L., 744 F.3d at 837 (quotation marks omitted); see also I.B. v. New York City Dep't of Educ., 2016 WL 1069679, at *17-18 (S.D.N.Y. Mar. 17, 2016)

“[E]quitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in so doing. Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.” Carter, 510 U.S. at 16, 114 S.Ct. 361 (citation omitted); see also A.C., 553 F.3d at 171 (“In fashioning relief, equitable considerations relating to the reasonableness of the action taken by the parents are relevant.” (citation omitted)). Statutory language in the IDEA specifically contemplates that a reimbursement award may be reduced or denied if the parents, inter alia, fail to timely notify the school district of their intent to enroll their child in a private school at public expense; fail to make their child available for an evaluation; or otherwise act unreasonably.20U.S.C.§1412(a)(10)(C)(iii).A.D., 690 F. Supp. 2d at 215.Private school tuition may be denied where parents have failed to cooperate with a school district or otherwise frustrated a district’s attempt to offer a FAPE. C.L. v. Scarsdale Union Free School District, 744 F.3d 826, at840 (2d Cir. 2014) (citing Warren G., 190 F.3d 85, 85-86

(3d Cir. 1999)), Forest Grove School Dist. v. T.A., 557 U.S. 230, 247 (2009)).

Notably, parents who do not obstruct their school district’s placement process will not be precluded from receiving reimbursement for equitable reasons (see, C.L., 744 F.3d at 840

(equities weighed in favor of the Parents, as they attempted to find an appropriate placement within the school district, attempted to make contact with the recommended placement site and did not enroll the child in the private school until after they were unsuccessful at the CSE meeting); R.B. v. NYC Dept. of Education, 713 F.Supp.2d 235, 248-249 (S.D.N.Y. 2010); N.R. v. NYC Dept. of Education, 2009 WL 874061, *7; (S.D.N.Y. March 31, 2009) see also A.R. v. NYC Dept. of Education, 2013 WL 5312537, *10 (S.D.N.Y. Sept. 23, 2013) (“there was no evidence that Plaintiff ever failed to cooperate with the DOE, declined to visit any proposed placement, or notify the DOE of her dissatisfaction with its proposal. Therefore, the court [found] that a preponderance of the evidence demonstrate[d] Plaintiff’s cooperation with the DOE’s placement process and that equitable considerations weigh[ed] in favor of granting her relief”)).

Where the parents “cooperate with the District in its efforts to meet its obligations under the IDEA…their pursuit of private placement [is] not a basis for denying their tuition reimbursement….” (C.L., 744 F.3d at 840).The Parents have always allowed the DOE to conduct all appropriate evaluations and observations of the child in anticipation of the development of the IEP in accordance with 20 U.S.C. §1414(a)(10)(C)(iii)(I) . In the absence of evidence demonstrating that the parents failed to cooperate in the development of the IEP or that they otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement. See C.L. v. Scarsdale Union Free School District, 744 F.3d 826, 840 (2d Cir. 2014). In the present matter, no evidence has been presented that the parents acted unreasonably or that they were uncooperative with the DOE in any way.

The Parent never engaged in any manner so as to impede the process. See I.B. v. New York City Dep't of Educ., 2016 WL 1069679, at *17-18 (S.D.N.Y. Mar. 17, 2016) (parent's claim for reimbursement may be denied upon a finding of a failure to cooperate with the CSE in the development of an IEP, or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP, however, in the absence of evidence demonstrating obstructive conduct on the part of parents, equitable considerations militate in favor of an award of relief to parents who have been denied their rights under the IDEA); see also C.F. ex rel. R.F. v. Dep't of Educ., 746 F.3d 68 (2d Cir. 2014).

Even in certain limited circumstances, courts have held that an award directing a district to prospectively pay for the costs of a student's placement in an appropriate but non approved nonpublic school may be proper (see Connors v. Mills, 34 F. Supp. 2d 795, 802, 805-06 [N.D.N.Y. 1998]). However, the court held that the prospective funding at issue constituted the only available remedy that could have provided the student with an appropriate education, as "both the school and the parent agree[d] that the child's unique needs require[d] placement in a private non-approved school and that there [we]re no approved schools that would be appropriate" (id. at 799, 804).

The DOE maintained that it created an IEP that was appropriate for for the '19/'20 school year and that the recommended program with related services would be able to address academic and other areas required. The DOE is requesting that the Parent request for tuition reimbursement be denied. Additionally, that approximately 73% of the school day was for secular study, as the rest of the program was for Bible study, and religion.

PRONG I

The Parent's position is that DOE has failed to establish that it offered a FAPE for ; that it hasn’t established a Prong I case. Additionally, that the affidavit of establish that receives an individually tailored program at the .

I agree with Parent’s position that that has made reasonable educational progress and that no equitable considerations have been raised . I find that the IEP meeting was conducted and the CSE failed to consider appropriate evaluative data so that the IEP failed to sufficiently support ’s educational need. The CSE recommended the 8:1:1 program at for the 2019-20 school year; I find that the program and placement are not appropriate for In reviewing the IEP there are a number of issues as follows: has behavioral and social emotional concerns and the IEP memorializes in multiple places that he utilizes individualized behavioral charts,. However, a Behavioral Intervention Plan (BIP) specific to his needs was not included with this IEP. Additionally, the proposed IEP recommends an 8:1:1 class in ; this is a change from the past several years wherein he was recommended for a 6:I:1 class.

As per Parent’s counsel, in prior years by all those who know and work with , a 6:I:1 fails to offer sufficient support. Thus, it is illogical as to how the CSE now believes that an even larger class would be appropriate for him. As per the proposed IEP, at the time of the review was in an 8:1:3 class and had ELA in a group of 2:1 and math in a group of 5:l; however, he still had struggles in this setting. Therefore an 8:1:1 class could not provide the level of teacher support that he requires and he would not be able to reach the proposed goals in this class. Parent asserts that the CSE team copied much of the reports and information from his current program; however failed to follow the recommendations for more support and offered placement in an 8:1:1.

Upon receiving the placement offer for , the parents immediately contacted the school and arranged to visit the program. However, this visit only served to confirm their concerns with the program; the school was not forthcoming with information about the program that was offered which left the parents only to question the appropriateness of the program. More particularly, when requesting general information about the functioning of the students that would be placed with, the school would not provide any information.

Parent asserts that it would be important that they be provided with the information I order to determine if the classroom would be appropriate for Parents maintain that they were not permitted allow see the actual classroom and were told that it would make no sense since the September classroom would be different. However, their son’s program was scheduled to begin in the summer of 2019. From what could be gleaned, Parents believed that it was that the students in the program were lower functioning than their son. It also did not appear that the school could meet the proposed lEP. Additionally, the recommended placement would not provide sufficient mainstreaming opportunities. The Parents were concerned that the program is located in a middle school; as their son was entering high school , he required opportunities to interact with high school students. He also required aprogram that will begin to focus onvocational trainingandthis could not be sufficiently addressed in a middle school.

The parent informed the CSE of their concerns with the proposed IEP and placement in July 2019. They advised the CSE that their son would not be returning to until September and were awaiting additional information as to how their concerns could be addressed. As the parent received no substantive response from the CSE, they pursued a unilateral placement as required a small full-time special education class and setting with emphasis inproviding academic, social and behavioral support in order to make progress.

Furthermore, I agree that the proposed IEP and program fails to address vocational planning and transition supports that need to be included for as he is now entering high school. Moreover, is a student who has behavioral and social-emotional needs. I agree with the Parents that the IEP does not sufficiently address that in providing for appropriate behavioral supports and a behavior intervention plan.

The Parent's position that the placement offered at fails to sufficiently address his needs, as the parent visited the school, was given very little information about how it could actually even address his needs. Parent maintains that it is evident that this was not an appropriate grouping for in light of all of these issues, it's the Parent's position that FAPE has not been offered for the '19/'20 school year.

PRONG II

It's the Parents position that the student's placement at met his needs, providing an individualized, tailored program that can provide academic support as well as pre-vocational, vocational support, and addresses behavioral, social-emotional needs. I find that benefitted from his placement at during the 2019-2020 school year. As per the Affidavit of , ’s needs were addressed and he made meaningful educational progress during the 2019-2020 SY. I agree that he program and related services were reasonably calculated to provide him with educational benefit in light of his circumstance.

PRONG III

Parent asserts that there are no equitable considerations that would impact upon this process. The parent has cooperated in good faith, attending the IEP meetings, visiting the DOE placement, making her concerns known, and there would be nothing that would warrant any reduction or denial of equitable considerations. There was no evidence that Parent ever failed to cooperate with the DOE, declined to visit any proposed placement, or notify the DOE of her dissatisfaction with its proposal. I find that a preponderance of the evidence demonstrated the Parent’s cooperation with the DOE’s placement process and that equitable considerations weigh in favor of granting her relief. There is no evidence that the parents obstructed the DOE and or otherwise exhibited inequitable conduct.

Accordingly, under governing legal standards, Prong III equitable factors do not preclude reimbursement.

I find that the DOE has failed to offer a FAPE for the 2019 – 2020 school year and that the was an appropriate placement for him. The tuition for the school year in issue was $97,000.00; as approximately 75% of the school day is for religious instruction, the total invoice is reduced to $72,750.00. The Affidavit of indicates that the Parent paid the sum of $5050.00 and that a third party (unknown identity paid the sum of $6,600.00) leaving a balance due in the reduced sum $61,100.00.

Accordingly, I award tuition for the as direct funding for the 2019-2020 school year as follows:

ORDER

1. The DOE to reimburse Parent in the sum of $5050.00 for payments made to the

.

2. The DOE pay the sum of $61,100.00 to school

THE DOE IS TO PAY WITHIN 30 DAYS OF RECEIPT OF A FINAL BILL FROM THE

SCHOOLS IN A FORM SATISFACTORY TO THE DOE.

Dated: December 8, 2020

Gary D. Peters, Esq.

Gary D. Peters, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act. “The notice of intention to seek review shall be 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. The petition for review shall be served upon the school district 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.” (8NYCRR279.2 [b])

Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

---

Footnotes

[1] 2/6/29 IEP 25

[2] 5/13/19 Prior Written Notice 2019-2020 SY 8