New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 535792 - NYC: 192760

FINDINGS OF FACT AND DECISION

Case Number: 192760

Student's Name: REDACTED

Date of Birth: REDACTED District: REDACTED Hearing Requested By: Parent Date of Hearing: 07/30/2020

08/13/2020

08/14/2020

Actual Record Close Date: 08/26/2020 Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 07/30/2020

For the Student:

Attorney (Via Telephone)

For the Department of Education: NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/13/2020

For the Student:

., Attorney (Via Telephone)

, Parent (Via Telephone)

For the Department of Education:

, District Representative (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/14/2020

For the Student:

., Attorney (Via Telephone)

, Parent (Via Telephone)

, Head of School (Via Telephone)

, [Unilateral Placement] Academy (Via Telephone) For the Department of Education:

, District Representative (Via Telephone)

INTRODUCTION

On 07/27/2020, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Pre-Hearing Conference was set for 07/30/2020.

Hearing was set to commence on 08/13/2020, and concluded on 08/14/2020.

Appended to the record are lists of persons in attendance and the documents received in evidence. Parent filed Due Process Complaint (DPC), dated 12/13/2019. (Ex A)

Hearing Request alleges the DOE failed to offer the Student a Free and Appropriate Public Education (FAPE) for the 2019-2020 school years. (Ex A 1)

Parent contends the Individualized Education Program (IEP) developed on 03/11/2019, was insufficient and failed to offer the Student a FAPE. (Ex A)

Student was unilaterally placed at (Unilateral Placement).

At the time the DPC was filed the Student was REDACTED years old. (Ex A 1)

Parent argument includes, that the Student requires a program which utilizes Applied Behavior Analysis (ABA) (Ex A 3), and

“The proposed Special Class 12:1+1 is too large for [Student] and cannot provide him with the level of 1:1 instruction, from teachers trained to work with students with Autism, that he requires. A class with only 12 students and 2 adults cannot provide [Student] with the level of 1:1 instruction he needs. Though the IEP mandates a 1:1 “behavior support” paraprofessional for [Student], per the IEP this person would be there solely to address [Student]’s behavioral needs and wuld not to provide him with instruction. Thus, this service would no cure the deficient class size/staffing ratio. The proposed Special Class 12:1+1 program cannot provide [Student] with a suitable and functional peer group, as it is designed to meet the needs of students with a very different profile than [Student]. Moreover, the proposed program recommendation cannot provide [Student] with the small school environment that he requires.” (Ex A 2)

Parent seeks the following relief:

“Funding/reimbursement for unilateral placement at [Unilateral Placement] Academy in the absence of a procedurally valid and substantively appropriate IEP and placement recommendation for the 2019-2020 school year. A declaratory finding that the school district violated [Student]’s right to a free, appropriate public education.” (Ex A 4)

THE PARENT’S POSITION

Parent Attorney set forth the basic Parent position, via DPC. (Ex A)

Parent presented several Affidavits of Testimony, supplemented at Hearing, with live testimony, as in outlined below.

N Affidavit, Head of School, 8/4/2020, four pages:

Witness was asked to refer to Behavior Intervention Plan (BIP) (Ex 1) Witness did not now the exact month the BIP was created. (T 28)

Witness states: “This was created for [Student] during the school year, during this current school year in the beginning of the year. And as the data indicated, if there are any changes needed then it gets adapted and revised as we go.” (T 28)

Witness was asked to refer to Exhibit F, the Covid-19 closure response description. (T 32) Document was created the end of March 2019. (T 32)

Plan was implemented on 03/18/2020, and it included related services. (T 33-34)

O Affidavit, Educational Supervisor 8/6/2020, four pages: Witness is familiar with BIP. (T 40, Ex I)

BIP was created by Board Certified Behavior Analyst (BCBA), and was revised in February of 2020.

(T 41)

BIP was originally drafted sometime in October of 2019. (T 45)

Witness served as Student’s educational supervisor, for the 19-20 school year, and at times directly interacted with the Student to provide support. (T 42-43)

P Affidavit, Parent, 8/6/2020, four pages:

Witness was asked why she enrolled Student in the unilateral placement:

“Because he needed something different. When I went to look at the public school during the summer, the children weren't there, I couldn't see the program. And I am a parent who does the best for their children and -- and does what they need. And I felt that [Unilateral Placement] would be a place that he could grow in.” (T 47-48)

Tuition is about $100,000.00 and has not been paid, and she is responsible for the payment of the full tuition. (T 48-50, Ex J)

Witness is making monthly payments to the unilateral placement school for tuition. (T 52)

Witness states she cannot afford the payment of the full tuition: “Well, I -- I cannot afford it, but if I have to make payments for the rest of my life, I will. And if I have to take out a loan, I will. It will be hard, but I mean that's the best I could do. He's my child, I have to -- I have to do what's best for him.” (T 52)

Presently the witness is placing payments on a credit card since she cannot get a loan. (T 53-54)

DEPARTMENT OF EDUCATION POSITION

DOE Representative appeared at Hearing of 08/14/2020, and advised the IHO that it would not be presenting a case. (T 17)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug.

21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F.

Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F.

Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch.

Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13- 14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 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"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). 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]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of 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., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 2019-20 School Year

DOE opted to present no defense to the Parent’s allegations. (T 17, Ex A) No offer of FAPE was presented for the 19-20 school year.

DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer the Student a FAPE.

I find the DOE failed to offer the Student a FAPE for the 19-20 school year.

Unilateral Placement for the 19-20 School Year

Testimony and documentary evidence support Parent’s unilateral placement as appropriate, for the Student, for the 19-20 school year.

Parent evidence includes a description of the special education needs, services to address those needs, and progress. This evidence was primarily documentary and is outlined below.

Documentary evidence includes:

A Due Process Complaint and Transmittal Confirmation,02/18/2020, 5 pages:

Sets forth Student classification of Autism, delays and deficits in social, motor, language and academic areas. (Ex A 1)

B Letter from Parents to REDACTED CSE and confirmation, 8/6/2020, three pages: Parent contacts DOE and sets forth concerns with Student and proposed placement. Parent seeks additional information to ensure appropriate Student placement.

C Ten-day letter and confirmation, 8/19/19, three pages:

Parent advises the DOE of objection to the proposed program and placement for the 19-20 school, and advises that unilateral placement will be made, and funding will be sought from the DOE.

D Follow up of ten-day letter and confirmation, 12/05/2019, six pages:

Notice to the DOE which confirms Student unilateral placement and impending Due Process Complaint.

E [Unilateral Placement] Academy Middle School Program Description, one page: Brief description of the Self Contained Student class.

Academic Development Class (self-contained classroom)

This program provides students in 6th through 8th grade with the unique opportunity to gain maximum academic, emotional, and social support while they participate in common core focused classes. Students are taught at the specialized pace and format students require, while ensuring their understanding of the general education curriculum content.

The academic focus of this class includes instruction within English language arts, social studies, science, and mathematics, which is individualized to meet the instructional level of each student. The students’ instruction includes pre-vocational topics including the exploration of vocational career clusters as well as development of work readiness skills. Our teachers utilize differentiated instruction and various modalities to engage the students in the learning process.

Students in this class develop their social skills through direct instruction by [Unilateral Placement]’s social workers, as well as multiple opportunities to generalize learned skills within [Unilateral Placement] and the community.

F Covid-19 closure response description, one page:

Details school remote learning plan, including technology, recordation of all sessions, continuation of 1:1 sessions, and related services.

G Daily schedule for student, one pages:

Student schedule details academics, related services, Life Skills, and related school activities.

H [Unilateral Placement] Academy spring 2020 progress report, 23 pages:

Identifies Student areas of special education need. This includes: Autism, Maladaptive behaviors, safety concerns, and daily living needs. (Ex H 1)

Identifies learning needs, which include: visual and kinesthetic learner, 1:1 paraprofessional, and consistent and structured environment. (Ex H 1)

Sets forth goals for areas of: English Language Arts (H 2-4); Math (H 5-7); Social Studies (H 7-8); Science (H 8-10); Life Skills (H 10); Social Emotional Behavioral (H 10); Social Awareness (Ex H 11); Social Awareness (Ex H 11); Counseling (Ex H 11-12); Speech (Ex H 12); Occupational Therapy (Ex H 13); Vocational (Ex H 14) and Adaptive Physical Education (Ex H 15).

I Behavior Intervention Plan, two pages:

Details Student behaviors to be addressed, strategies and replacement behaviors.

N Affidavit, Head of School, 8/4/2020, four pages:

Head of School of [Unilateral Placement] details general Student program and services.

Unilateral placement utilizes ABA methodology, staff receives professional development, Student attended for the 19-20 school year. (Ex N 2)

Describes areas of Student need, such as behaviors, which prevent Student from reaching his potential. (Ex N 3)

Student supports include: a paraprofessional, ABA, related services of counseling, occupational therapy, speech and language therapy, and Parent Counseling and Training. (Ex N 3)

Remote instruction was provided at the end of the 19-20 schol year. (Ex N 4)

Belief that the DOE IEP was insufficient for the Student, who requires a smaller classroom and ABA. (Ex N 4)

Student has improved behaviors, and advanced in academics, language and social skills. (Ecx N 4) Belief that the program served as an appropriate placement for the Student for the 19-20 school year. Hearing Officer notes that no IEP was actually submitted into evidence.

O Affidavit, Educational Supervisor, of Unilateral Placement, 8/6/2020, four pages:

Describes Student characteristics, and needs, including behavioral issues which required a BIP. (Ex O 1)

Describes Student class: six students ranging from end 4th to beginning 6th grade. (Ex O 1) Data was collected for the Student and goals created. (Ex O 2)

Student received 1:1 and small group instruction. (Ex O 2)

Social needs were addressed and improvement is noted. (Ex O 2-3)

Student program included support in the areas of social skills and vocational skills. (Ex O 3)

Sets forth belief that the DOE created IEP is not appropriate to address Student “pervasive behavioral needs”. (Ex O 3)

Sets forth belief that the unilateral program and placement were appropriate for the Student for the 19-20 school year, due to appropriate behavioral supports and ABA. (Ex O 4)

States that notable progress was made”across domains”. (Ex O 4)

P Affidavit, Parent, 8/6/2020, four page:

Reviews Student educational history, including IEP meeting of March 2019. (Ex P 1-2) States that behavioral needs were discussed at the IEP meeting. (Ex P 2)

Received a DOE placement, which was visited. (Ex P 2)

Did not agree with the DOE proposed placement, and unilaterally placed the Student. (Ex P 3-4) Confirms payment of part of the unilateral placement tuition, in the amount of $4,525.00. (Ex P 4)

States that she believes the unilateral placement was appropriate and the Student has progressed with behaviors and life skills. (Ex P 4)

I find Unilateral Placement provides an appropriate education and program for the Student for the 19/20 school year.

Unilateral Placement provides special education services specifically tailored to meet the needs of the Student, for the 19-20 school year.

TUITION FUNDING 19-20 School Year

With regard to fashioning equitable relief, one court has addressed whether it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so (Mr. and Mrs.

A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). The court held that "[w]here.. parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769 F. Supp. 2d at 428).

The Mr. and Mrs. A. Court relied in part on dicta from earlier cases in which similar claims seeking direct retroactive payment to a private non-approved school were asserted (see Connors v. Mills, 34 F. Supp. 2d 795, 805-06 [N.D.N.Y. 1998] [opining that such financial disputes should be resolved within the administrative hearing process]; see also S.W., 646 F. Supp. 2d at 358-60). The Mr. and Mrs. A. Court held that in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs (Mr. and Mrs. A., 769 F. Supp.2d at 430).

Where the Parent(s) select the unilateral placement, it is the Parent(s) financial status at issue. Therefore, Parent(s) has the burden of production and persuasion with respect to whether they have the financial resources to "front" the costs of the unilateral placement and whether they are legally obligated for the student's tuition payments (Application of the Dep't of Educ., 12-132; Application of a Student with a Disability, 12-036; Application of a Student with a Disability, 12-004; Application of the Dep't of Educ., 11- 130; Application of the Dep't of Educ.,Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041).

Parent is entitled to funding for the unilateral placement 19-20 Tuition. Supportive evidence includes:

J Tuition contract, 8/22/2019, six pages:

Evidencing tuition of $79,500.00, without related services or paraprofessional, (Ex J 1) and Parent obligation for payment (Ex J 2 & 6).

K Affidavit payments, 14 16 7/30/2020, two pages:

Evidencing a total Tuition of $106,500.00, inclusive of related services and paraprofessional, Parent payments thus far of $4,525.00, with a balance due of $101,975.00.

L Proof of payment 9/2019 to 6/2020, three pages:

Evidences Parent Credit Card Payments towards Unilateral Placement Tuition.

M 2017 U.S. individual tax returns, three pages:

Evidencing Parent income of about $112,000.00 yearly. year.

Parent establishes a denial of FAPE and appropriateness of unilateral placement, for the 19-20 school

No evidence is brought forth to indicate the Parent in any way thwarted any effort by the DOE to offer the Student a FAPE.

Parent testifies to lack of sufficient funds to pay tuition in its entirety, and to making periodic payments. (T 52-54)

I find the Parent is entitled to reimbursement of funds paid, and direct unilateral placement funding as Ordered below.

ORDER

• • Department of Education (DOE) failed to offer the Student a FAPE for the 2019-2020 school year.
• • DOE is to fund Student tuition for the 19-20 school year as follows: Reimbursement to Parent in the amount of $4,525.00; and Direct Funding to REDACTED in the amount of $101,975.00.
• • The DOE shall provide Parent with any documents or forms necessary to facilitate funding under this Order within ten days of the date of this Order.
• • This decision is subject to appeal and review by the State Review Officer DATED: August 26, 2020

DANIEL AJELLO

DANIEL AJELLO

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party not later than 25 10 days after the date of rthe decision sought to be reviewed.

An appealing party’s' request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after the service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party not later than 25 10 days after the date of rthe decision sought to be reviewed.

An appealing party’s' request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after the service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

DOCUMENTATION ENTERED INTO THE RECORD PARENT

ENTERED 7/30/2020

A Due Process Complaint and Transmittal Confirmation,02/18/2020, 5 pages ENTERED 08/13/2020

B Letter from Parents to CSE and confirmation, 8/6/2020, three pages C Ten-day letter and confirmation, 8/19/19, three pages

D Follow up of ten-day letter and confirmation, 12/05/2019, six pages

E [Unilateral Placement] Academy Middle School Program Description, one page F Covid-19 closure response description, one page

G Daily schedule for student, unidentified, one pages

H [Unilateral Placement] Academy spring 2020 progress report, 23 pages I Behavior Intervention Plan, two pages

J Tuition contract, 8/22/2019, six pages

K Affidavit payments, 14 16 7/30/2020, two pages L Proof of payment 9/2019 to 6/2020, three pages M 2017 U.S. individual tax returns, three pages

N Affidavit,, 8/4/2020, four pages O Affidavit,, 8/6/2020, four pages P Affidavit,, 8/6/2020, four pages

DEPARTMENT OF EDUCATION NONE

IMPARTIAL HEARING OFFICER ENTERED 07/30/2020

• • Notice of Appointment, 07/27/2020, four pages
• • Interim Order Denying Consolidation, 07/27/2020, 3 pages