New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 537307 - NYC: 194103

FINDINGS OF FACT AND DECISION

Case Number: 194103

Student’s Name: REDACTED

School District: N.Y.C. Dept. of Ed., District # REDACTED Impartial Hearing Officer: Harry A. Christodoulou

Date of Filing: 05/28/2020

Hearing Requested by: REDACTED

Date of Hearing: 12/14/2022; 01/21/2022; 03/10/2022; 03/24/2022 and 04/25/2022

Record Close Date: 05/27/2022

Date of Decision: 06/10/2022

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 06, 2020

For the Student:

REDACTED (hereinafter referred to as “Parent’s representative law firm”)

For the Department of Education (“DOE”):

REDACTED (hereinafter referred to as “District’s representative”)

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 14, 2021

For the Student:

REDACTED

For the DOE:

District’s representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 21, 2022

For the Student:

Parent’s representative 1 For the DOE:

District’s representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 10, 2022

For the Student:

Parent’s representative 1 For the DOE:

District’s representative

Observers:

REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 24, 2022

For the Student:

Parent’s representative 1

REDACTED (hereinafter referred to as “Parent”)

REDACTED (hereinafter referred to as “Parent’s Witness 1”)

For the DOE:

District’s representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 25, 2022

For the Student:

Parent’s representative 1

REDACTED (hereinafter referred to as “Parent’s Witness 2”)

For the DOE:

District’s representative

BACKGROUND AND PROCEDURAL HISTORY

Student was a REDACTED-year-old^[1] classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). The Student’s eligibility for special education supports and services for the 2019-2020 school year (“SY”) is not in dispute.

On May 28, 2020, the Parent, through the Parent’s representative law firm, filed a due process complaint (“DPC”) against the DOE pursuant to the IDEA. I was appointed on October 21, 2020, to preside over the claims in the DPC pursuant to New York State regulations, to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1) and determine the claims in the DPC concerning the special education program of the Student.

The parties sought, and were afforded time, to try resolve the matter without the need for a hearing. At a status conference (“SC”) held on July 28, 2021, Parent’s representative at that SC indicated that the Parent would like to proceed to IH (T. P43, L22-24). Parent’s representative requested additional time at the next SC held on September 09, 2021 to afford additional time for the case to be investigated for possible settlement (T. P50, L1-3). The IH was scheduled at the following SC for December 14, 2021 (T. P54, L15-24).

JURISDICTION

A decision in this matter is being rendered pursuant to the IDEA^[2] and its implementing regulations^[3], and the New York State Education Law^[4] and its implementing regulations^[5].

PARTIES’ POSITIONS AND CASES PRESENTED

DOE:

The DOE put on a case and called one witness, namely District’s Witness who was called to testify as to the program recommended for the Student for the 2019-2020 SY. The DOE also submitted 4 documents in support of the DOE’s case.

All the proposed exhibits were admitted to the record and are listed below, after confirming with the Parent’s representative 2 that there were no objections from the Parent to those documents being admitted into evidence (T. P67, L18-25; P68; P69, L1-2).

District’s representative made an opening statement asserting that (T. PP66-67, L1-10): the DOE offered the Student a FAPE; held the IEP with all mandated participants present; an appropriate recommendation for the SY was made; that if the Student was registered in the public school, the Student would have made meaningful progress; that since the Student was not registered, all the Parent’s complaints were highly speculative; the DOE fulfilled its obligations and the Parent’s request for tuition funding should not be warranted.

Parent:

Parent, through the Parent’s representatives, submitted 12 documents in support of the Parent’s case. All the proposed exhibits were admitted to the record and are listed below, after confirming with the District’s representative that there were no objections from the DOE to those documents being admitted into evidence, and after complying with my stated policy for the admission of testamentary evidence by affidavit (T. P13, L19-25; P14, L1-8; P69-71; P124, L2-25; P125, L1-14; P131, L18-25; P132, L1-16).

Parent’s Representative 1 waived the Parent’s oral opening and closing statements and submitted a Post-Hearing Closing Statement (T. P131, L4-6) (Exhibit IHO-II).

PREVAILING PARTY

Parent is the prevailing party, and an award or Order is granted in her favor.

GENERAL LEGAL FRAMEWORK

The claims in the DPC relate to the Student’s special education program and placement for the 2019-2020 SY, asserting that based on numerous procedural and substantive grounds, the DOE failed to offer the Student a FAPE.

Parent is seeking^[6] tuition funding for the cost of the Student’s placement at the Attending School for the 2019-2020 SY (Exhibit P-A-5).

A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits^[7].

If a procedural violation is alleged, an impartial hearing 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^[8].

The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE^[9], and default judgments are disfavored by the federal courts^[10]. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”^[11].

School districts are not required to “maximize” the potential of students with disabilities^[12], but must provide “an IEP that is ‘likely to produce progress, not regression,’ and... affords the student with an opportunity greater than mere ‘trivial advancement’”^[13]. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit”^[14].

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement, which exception applies in this case^[15]. The parties’ representatives confirmed their mutual understanding of the burden of proof at the prehearing conference on October 29, 2020 (T. P5, L25; P6, L1-18).

The DOE may be required to pay for educational services obtained for a student by the student’s parent(s), if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent(s) were appropriate, and equitable considerations support the parent(s)’ claim^[16].

FINDINGS OF FACT AND DECISION

Prong I - Denial of a FAPE:

The DOE presented the testimony of District’s Witness to substantiate a case that it offered the Student a FAPE for the 2019-2020 SY.

District’s Witness testified that she: Helped to review the updated psychoeducational that was conducted, explained that to the Parent; formulated a plan for the Student for the upcoming SY in making recommendations; served as a representative from the CSE; and together with her colleague, a special education teacher, they were able to formulate the most appropriate placement for the Student (T. P75, L9-20). She testified that: The CSE reviewed the psychoeducational and all the reports from the teacher; elaborated on what was assessed, discussed and explained; the Student’s goals that would address his delays were reviewed; they were thereafter able to make a proper recommendation for him to attend school (which recommendation was spelled out); they felt, based on the Student’s specific delays, that the most appropriate setting, under the classification of Multiple Disability, would be a smaller size classroom in a special education school, namely a District 75 school, in a 12:1+1 program and also recommended a lot of relates services, including counselling, occupational therapy, physical therapy, and speech and language therapy (T. P83, L16-25; P84; P85, 1-15).

District’s Witness presented as credible, and I accept her evidence. In assessing the District’s testimony and the Student’s IEP, I find that the DOE set out to fulfil its obligations under the IDEA for this Student for the 2019-2020 SY. It held an IEP meeting, with the mandated participants, and did provide the Parent an opportunity to participate in a meaningful way at the IEP, considering and noting her concerns in the IEP. I find that the contrary assertions in the DPC therefore have no merit (Exhibit P-A-4).

There are however several assertions in the DPC that are supported by the hearing record, and I address these in turn.

Assistive Technology:

It is asserted in the DPC that: the CSE did not recommend technology for the Student, being a student who has multiple physical issues that impact on his ability to easily read and write; the Parent repeatedly requested that her son be evaluated to determine if technology would assist him to learn; that it is the responsibility of the DOE to facilitate a request for an evaluation by the Parent and that the DOE created repeated obstacles that made it impossible for the Student to receive his much needed technology evaluation (Exhibit P-A-3). It is also asserted that the DOE failed to evaluate the Student thoroughly and appropriately and that it failed to evaluate him in all areas of suspected disability (Exhibit P-A-2 & -4).

District’s Witness testified that: The Student was not recommended during the meeting that any assistive technology device would be recommended, it was however discussed with the Parent and with the school and that they would move forward to making a recommendation to have that evaluation conducted; to the best of her knowledge – referencing Exhibit DOE-4 – the Student was evaluated for assistive technology during that SY; and to the best of her knowledge, he was later on offered the specific device for use in the Student’s educational setting; and that she could “see it here” – referencing Exhibit DOE-4 – that it would then be put onto “the following IEP” (T. P88, L25; P86; P87, L1).

District’s Witness testified during cross-examination that: It was noted on the IEP that the Parent expressed concerns regarding physical therapy mandates and an assistive technology evaluation; the Parent requested an assistive technology evaluation at the meeting and that following this meeting they recommended an assistive technology evaluation; the assistive technology evaluation was done after the meeting and the recommendation was, if there was an assistive technology recommendation made, that it would be placed on the subsequent IEP, not “this IEP” (referencing the IEP dated 05/09/2019) (T. P93, L8-25; P94, L1-14).

On the face of the document referenced by District’s Witness 4 during her testimony (Exhibit DOE-4), it appears that: An assistive technology evaluation was done on October 3, 2019; an apple iPad with various software recommendations was available in inventory for immediate delivery; it included both a portable word processor and portable reading device for individual daily use at school and home; and that this “equipment was delivered by the evaluators on November 19, 2019”. There was no testimony on record to confirm if this did in fact occur, as written, and if so, to whom and where it was delivered. Furthermore, by the time this matter went to hearing the SY in question was long over, yet the DOE did not produce a subsequent IEP that included the recommended assistive technology evaluation, that would have been in effect for all (highly improbable given the contents of Exhibit DOE-4) or some part of the 2019-2020 SY. I therefore am unable to find that there was any assistive technology provided for the Student for the 2019-2020 SY.

In a recent case^[17] that addressed a statute of limitations issue, the parent had relied upon the following failures by the DOE (the “Failures”): to hold an annual review for the student for the relevant SY; to provide the parent with prior written notice of a change, or lack thereof, to the student's IEP; to send a school location letter with a placement for the student for the relevant SY; and to produce an annual IEP by the first day of the relevant SY.

In that case, it was conceded by the DOE that the Failures had constituted the denial of a FAPE and, unlike in this case, the DOE did not contest that it had denied the student a FAPE in that case (in this case Prong I is being contested by the DOE). The IHO Decision, which was the decision being appealed, did not probe whether the denial of a FAPE was procedural, substantive, or both, but found that "the DOE's failure to present a case at the hearing is a concession that it denied the student FAPE....". The U.S. District Judge wrote, about the Failures, that in “any case, there were clearly both procedural and substantive violations of IDEA that amounted to the denial of a FAPE”.

In addressing the nature of the violation for failing to have a written IEP in effect by the first day of the school year (i.e., whether it is procedural or substantive), the U.S. District Judge wrote:

“Substantive violations of IDEA may include the failure to propose an IEP or deficiencies in the IEP itself. Id.; Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238-39, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). School districts are required to have a written IEP in effect for each child with a disability by the beginning of the school year, 20 U.S.C. § 1414(d)(2)(A), and, in New York State, the school year begins annually on the first day of July. See N.Y. Educ. Law § 2(15). Thus, failure to provide a written IEP by July 1 constitutes a substantive denial of FAPE. C.W.L. and E.L. v. Pelham Union Free Sch. Dist., 149 F. Supp. 3d 451, 465 (S.D.N.Y. 2015)” (my emphases).

A district cannot abdicate its responsibility to develop an IEP based upon the unique circumstances of the Student^[18]. If a district knows or has reason to believe that a student will require certain services, it must evaluate the student’s needs and offer appropriate supports in a timely manner^[19] (my emphasis). The district has an affirmative obligation to offer the student a FAPE^[20]. With certain exceptions, a student’s IEP is required to be reviewed periodically, but not less frequently than annually, and revised as appropriate^[21] (my emphasis).

The only IEP on record for the 2019-2020 SY, which the Parent has challenged and maintains “would not meet the student’s needs and is not reasonably calculated to enable the student to receive educational benefits … was procedurally improper and substantively incorrect and resulted in a defective program recommendation and a denial of FAPE”, clearly states that the Student does not need a particular device or service, or an assistive technology device and/or service, and does not recommend a device be used in the Student’s home (Exhibit P-A-3; DOE-4 & 15).

Based on the record, the school report, and the testimony of the Parent and the District’s Witness, I find that the Student did need an assistive technology for the 2019-2020 SY and that the failure to evaluate and provide it timeously, or at all, would have resulted in the deprivation of educational benefits (T. P146, L12-18). This is a student whom District’s Witness testified that she was familiar with, having “case managed” his case for three years and that she was “familiar with where he’s holding cognitively as well as academically and well as his physical delays”. The failure to conduct an assistive technology evaluation until after it was requested by the Parent at the IEP meeting on May 9, 2019 and then delaying it until October 03, 2019 (assuming it was in fact done on that day), long after the start of the SY, was not justified.

Accordingly, for this reason alone, I find that the DOE failed to provide the Student with a FAPE for the SY at issue, in that it failed to timeously offer the Student “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”^[22].

When the Parent was presented with the program offered by the DOE for the 2019-2020 SY, and no subsequent revised or updated program recommendation containing an assistive technology recommendation was forthcoming, the Parent was therefore justified in rejecting the program offered and retaining the Student in the private placement. In the circumstances, I find that there was a denial of a FAPE for the 2019-2020 SY.

Appropriateness of the Proposed Placement:

It is asserted in the DPC that: The DOE failed to recommend an appropriate program and placement for the Student for the 2019-2020 SY; the Parent will assert that the Student’s IEP cannot be appropriately implemented in the recommended program; and that the Parent reserves the right to challenge the appropriateness of any recommended placement (Exhibit P-A-4 & -5).

The DOE expressly raised as part of its case that “since the Student was not registered, all the Parent’s complaints are highly speculative”. Before addressing this assertion on the merits of this case, some relevant case authority bears mentioning:

There is district court authority indicating that a parent has a right to obtain information about an assigned public-school site^[23]. Parents generally do not have a procedural right in the specific locational placement of their child^[24].

At least one federal Circuit Court has ruled that a parent may challenge a proposed placement based on evidence that the assigned school is incapable of implementing the student's IEP^[25]. However, a parent cannot recover the cost of a unilateral private placement based on speculation that the chosen school will fail to implement the student's IEP despite having the ability to do so^[26]. A district can overcome a challenge to the appropriateness of a proposed placement by showing that the facility in question was ready, willing, and able to implement the student's IEP^[27]. That said, a district seeking to establish the appropriateness of a proposed placement cannot simply argue that it would have made the school compliant. The court will focus on the information available to the parents when they considered the placement offer^[28]. Even where the child has not yet set foot in the public school, a parent may challenge the district's proposed placement as failing to uphold the IEP. However, a parent's assertion that a district could not implement the IEP might be too speculative if the parent unilaterally places him at a private school before the district has a chance to implement the IEP^[29].

The DOE planned to call an additional witness, namely the school witness to testify regarding the Proposed School, and an adjournment was sought and granted to afford the DOE the opportunity to call its intended witness (T. P108, 22-25; P109, L1-2). On the date selected to hear the witness’s testimony, District representative informed me that the DOE had decided not to call that witness or any additional witnesses in support of the DOE’s case. The DOE however reserved the right to submit additional documents for admission to the record at the next hearing date that had been scheduled for presentation of the Parent’s case (T. P121, L4-10; L20-25; P122; P123, L1-12). On that date, District’s representative confirmed that no additional documents were being submitted and the DOE rested its case (T. P130, L18-25, P131, L1).

The DOE knew from the contents of the DPC, as well as the Parent’s 10-day notice that the Parent was asserting that the “placement recommendation cannot meet [the Student’s] needs and implement this IEP in an appropriate manner for the 2019-2020 school year” (Exhibit P-C). The DOE chose, despite efforts being made to accommodate its school witness, not to place any evidence on record to counter this assertion.

Parent on the other hand testified as to her school site visit and her observations, as well as her reason for rejecting it (T. P142, L8-13; P144, L11-25; P145, L1-7; P150, L4-25; P151; P151, 1-3; P153, L7-25; P154, L1-18). Whilst the reasons provided were more general in nature, than as to specifics of the program or school placement that she could specifically pointed to, it was not pure speculation in the sense that she had a site visit, observed the school and a classroom, and formed an opinion that the Student would regress as he needs a more focused learning program.

The DOE on the other hand, which could have overcome the challenge to the appropriateness of a proposed placement by showing that the facility in question was ready, willing, and able to implement the Student's IEP, chose not to provide any such evidence.

When considering the Student’s goals, which were placed in issue in the DPC, coupled with the Parent’s Witness 1 who testified that the goals were too expansive, and that the goals covered too much ground for the Student to reasonably master the stated goal within one school years’ time, called for an explanation as to how the Proposed Placement expected to help the Student achieve his stated goals. Another example would be the goal that calls for the Student to become more independent in areas of Gross Motor Skills, which, as a short-term objective, calls for the Student to “stand for 30 seconds while holding on to grab bar or table support” (Exhibit DOE-1-11). Parent’s Witness 1 testified that in addition to a wheelchair and walker, the Student requires a specialized chair to best meet his mobility needs (Exhibit P-L-3). Without any evidence proffered as to the Proposed School’s ability to provide such equipment, it is unclear whether the Student’s goals can effectively be addressed.

When considering that the burden is on the DOE, that the Parent offered evidence on this, and that the IEP calls for physical supports to be available to assist in the Student’s goals being met, without any evidence whatsoever the scales are tipped in favor of the Parent and the District has failed to overcome the Parent’s challenge to the appropriateness of a proposed placement by showing that the facility in question was ready, willing, and able to implement the Student's IEP.

Functional Behavior Assessment (“FBA”) and Reduction of Services:

It is asserted in the DPC that: The DOE failed to develop an FBA to determine how to best address the Student’s off task behaviors, distractibility, lack of compliance, and poor self-esteem with Parent and staff participation; Parent was not in agreement with the reduction of the Student’s physical therapy mandate from five times per week to four times per week, which was unwarranted and not supported by the reports available to the team on the date of the review meeting (Exhibit P-A-3).

District’s Witness conceded under cross-examination that the physical therapy mandate was indeed reduced to four times a week (T. P93, L15-16). No explanation was provided as to the reason for this reduction or what evaluative data the team relied to support the decision to reduce services. The evidence on record does not support it.

During cross-examination, Parent’s representative asked District’s Witness if there was a discussion about an FBA at the IEP meeting. In response, District’s Witness stated that in “general, when there’s a student in a smaller classroom, we discuss his behaviors and if he requires his own functional behavior assessment and behavior plan. Typically, a smaller size classroom has its own class-wide behavior plan. For [the Student] specifically, there was no extreme behavior that he required his own” (T. P94, L15-24).

The purpose of an FBA is to isolate a target behavior and develop a hypothesis regarding the function of the target behavior. A target behavior is one that interferes with a student's ability to progress in the curriculum and to achieve the student's IEP goals. Once the target behavior is identified and the hypothesis developed, a positive behavior intervention plan can be prepared to address the target behavior with strategies and interventions, if necessary, or the target behavior can be addressed using a more informal approach^[30].

Aside from the specific circumstances in which either the IDEA or state law requires an FBA, which are not applicable here, IEP teams have a discretion whether to conduct one. Because IEP teams have an obligation to provide FAPE to students with disabilities, they must conduct an FBA if they determine that doing so is necessary to develop an appropriate IEP^[31].

Besides avoiding Parent’s representative’s 2 question if there was a discussion about an FBA at the IEP meeting, District’s Witness’s reliance on “extreme” behaviors as a test to determine if the Student needs his own is misplaced.

The Student’s IEP does document that the Student “can become non-compliant when presented with non-preferred or challenging tasks. At times, he has exhibited aggression (in the form of pushing or hitting), screaming and inappropriate language when directed or when a demand is placed” (Exhibit DOE-1-2; Exhibit P-G-1).

Whilst these behaviors may or may not rise to the level of “extreme” according to District’s Witness’s definition, they certainly would have, at the very least, called for a conversation by IEP team to determine if an FBA was warranted, or whether the team should exercise its discretion not to conduct one. I am unable to find, based on the record before me, that any such a conversation took place.

For all the above reasons, I find that the DOE has not discharged its burden in these proceedings to establish that it provided the Student a FAPE for the 2019-2020 SY. The Parent has accordingly met the first criterion of the test set out in Burlington/Carter for tuition funding.

Prong II - Appropriateness of the Parent’s Placement:

Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student”^[32]. The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements”^[33].

The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. The standard to apply is whether “[the] unilateral private placement... provides educational instruction specifically designed to meet the unique needs of a handicapped child”^[34].

The Judges in the Gagliardo case wrote that “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”^[35] (my emphases).

In both instances highlighted above, the focus is on the needs of the child, which are individual and unique, and that the placement must reasonably serve those needs to an extent that permits the child to benefit from the instruction.

Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private placement need not provide certified special education teachers or an IEP.

Evidence:

Parent’s representative 1 presented detailed testimony by Parent’s Witness 1, and the Parent, and submitted documentary evidence in support of the Parent’s position that the Attending School placement was appropriate. As to the Attending School in general, Parent’s Witness 1 testified (Exhibit P-L-1 through -5): As to her background, experience and education; her duties and responsibilities at the Attending School; the admission process and the wide range of students to which the school caters; the chronological age of students and the typical enrolment; the school’s supervisory structure; that the teachers the school employ hold special education NYS certification; the team includes NYS licensed therapists in six domains; the related and vocational services the school offers; the classroom ratios the school caters to; the training and professional development offered to staff; the curriculum offered; the professionals on staff, including the relates service providers (and their licenses – NYS); the manner in which the school measures progress; and the communication and engagement practices with parents.

As to the Student specifically, Parent’s Witness 1 testified (Exhibit P-L-3 through -5): As to the Student’s teacher and make up of his class (6 students, with 6 paraprofessionals), all being similar to the student on a parallel level academically, socially, behaviorally, and within their life skills; his physical needs and the equipment required to physically support the Student throughout the school day; the growth and progress the Student had made in ELA; her personal observations and encounters with the Student; her assessment of the Student’s impediments and the impacts these had on his learning, as well as the supports and strategies the school employed in response to the impediments; the related and vocational services the Student received; the community-based experiences provided; and stated that in her opinion the Attending School offered the Student an appropriate special education program for the 2019-2020 SY.

Parent testified (T. P142-147): As to the Student’s physical condition; the specialized equipment he required during the school day; her experience with the Attending School; that it was able to accommodate the Student’s physical needs; provided the health paraprofessional that was recommended in the Student’s IEP, and what the professional did for the Student; that they provided the Student with assistive technology, which she believes he needs 100%; that he was provided with opportunities to associate with other students that were similar to him; that he maintained social and emotional progress and excelled in many ways; that he made progress, albeit small steps, but that she saw progress; and that the staff at the Attending School made themselves available to her.

District representative did not cross-examine Parent’s Witness, although I had a few clarification questions for her.

I find that the Student’s program is specifically designed to cater to students of varying diagnoses, which includes those with severe or classification of Multiple Disabilities. A significant focus of the program, including the learning methodologies and the supports provided, are designed to meet the needs of a student such as the Student. Based on the evaluating psychologist’s (“Psychologist”) evaluation and findings, the Student falls in this class or category (Exhibit DOE-3-5).

Additionally, there is detailed uncontested evidence presented by Parent’s Witness 1 substantiating how the Student’s teachers specifically tailored the already specialized program – for this class or category of student – even further for this Student’s unique and individual needs (Exhibit P-L-4).

The evidence on record, which was not disputed through any testimony, let alone any expert testimony contradicting the clear recommendations of the Parent’s Witness 1, supports the Parent’s representative 1’s assertion that the Attending School is an appropriate placement for the Student.

The testimony of the Parent and Parent’s Witness 1, and the Parent’s documentary evidence (Exhibits P-D through P-L) establishes that the Attending School was appropriate and provided the Student with educational instruction that was specifically designed to meet the Student’s unique special education needs, supported by such services that were necessary to permit him to benefit from instruction for the 2019-2020 SY.

I also find that, based on the Student’s attendance at the Attending School for the SY in question, as testified to by the Parent and Parents’ Witness 1, the Student made progress during the 2019-2020 SY, (T. P). This is also supported by the contents of the Attending School’s progress report (Exhibit P-G), as well as the testimony of District’s Witness (T. P95, L6-15; P97, L23-25; P98, L1; P106, L1-15).

The Parent has therefore met the second criterion of the test set out in Burlington/Carter for tuition funding.

Prong III - Equitable Factors:

Equitable considerations are relevant to fashioning relief under the IDEA^[36].

The IDEA also provides that reimbursement may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents^[37].

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice 10 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”^[38].

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”^[39].

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^[40].

The hearing record reflects that the Parent, through Parent’s representative’s firm, notified the CSE, through their representatives, by letter dated June 17, 2019 of the Parent’s intention to place the Student at the Attending School and seek public funding for the 2019-2020 SY (Exhibit P-C).

I find in this letter the Parent offered sufficient information to put the DOE on notice about the Parent’s concern regarding the CSE’s failure to make an appropriate program and placement recommendation and informed of the Parent’s intention to place the Student at the Attending School for the 2019-2020 SY, giving the District an opportunity to cure any deficiencies, which is the intent underlying the 10-day notice requirement^[41].

Although it is apparent from the record that the Parent signed a contract enrolling the Student in the Attending School prior to the start of the 2019-2020 SY, namely on June 20, 2019 (Exhibit P-J-6), the Second Circuit has explained that, so long as parents cooperate with the CSE, “their pursuit of a private placement [i]s not a basis for denying their [request for] tuition reimbursement, even assuming... that the parents never intended to keep [the student] in public school”^[42].

No evidence was presented that demonstrated that the Parent did not cooperate with the DOE or failed to challenge the appropriateness of an IEP in a timely manner or failed to make their child available for evaluation by the District or had undertaken some or other unreasonable actions or conduct. In fact the District’s Witness testified that the Parent was requesting a public-school placement (T. P81, PL17-18).

Parent has therefore met the third criterion of the test set out in Burlington/Carter for tuition funding. Having met all three criteria of the Burlington/Carter test, the Parent is entitled to funding for the cost of the Student’s placement at the Attending School for the 2019-2020 SY.

Amounts Claimed:

Parent filed an affidavit by the Parent’s Witness 2, the Attending School’s Director of Financial Management, wherein Parent’s Witness 2 confirmed the total annual tuition rate of $79, 500.00 owing to the Attending School for the 2019-2020 tuition for the Student’s enrolment, and that no part of any reimbursement of tuition is considered a charitable contribution by the Parent and/or the private school placement nor is it in consideration of support of the Student's religious studies (Exhibit P-K-1, par. 4).

Parent’s Witness 2 also states in his affidavit that the following related services were provided for the Student for the SY (September 3, 2019 through June 22, 2020) “in accordance with the NYC IEP mandate”: Occupational therapy (3 x 30) (1:1) in the amount of $3,685.00 at a rate of $55.00/session; Speech therapy (2 x 30) (1:1) and (1 x 30) (3:1) in the amount of $3,190.00 at a rate of $55.00/session and $27.50/session, respectively; Counseling services (2 x 30) (1:1) and (1 x 30) (3:1) in the amount of $2,915.00 at a rate of $55.00/session and $27.50/session, respectively; Physical therapy (5 x 30) (1:1) in the amount of $3,382.00 at a rate of $55.00/session; a health paraprofessional (5 x 100%) (1: 1) in the amount of $18,200.00 (Exhibit P-K-1 & -2, par. 4-9).

The total owing for the related services amounts to $31,372.00, which is reflected in the Attending School’s invoice dated July 1, 2020 (Exhibit P-I). Accordingly, Parent’s Witness 2 confirms the balance due to the Attending School in his affidavit in the amount of $110,872.00, of which $0.00 had been received as of November 12, 2020 (Exhibit P-K-2).

I do not find that the aforesaid tuition rate excessive or unreasonable, given what is offered by the Attending School as part of the program^[43], specifically for students with a classification of Multiple Disabilities.

As the Parent is seeking tuition funding in the form of direct funding, a case for direct funding based upon need must be supported by the record. Parent testified as to her financial hardship, which I find warrants direct funding being awarded (T. P148, L1-16; P150, L2-8).

Other than the relief set out in my Order below, I find that no basis and/or evidence in the record supports any additional relief.

ORDER

Based upon the above Findings of Fact, it is hereby ORDERED that, the DOE shall directly fund the Student’s placement at the Attending School for the 2019-2020 school year in the sum of $110,872.00 (One Hundred and Ten Thousand, Eight Hundred and Seventy-Two Dollars), minus any payments already made by the DOE to the Attending School for the Student’s tuition or related services for the 2019-2020 school year under or in terms of an Order on Pendency (if applicable).

SO ORDERED.

DATED: June 10, 2022

__H.A.C._(Signed Electronically)___

Impartial Hearing Officer

Harry A. Christodoulou

NOTICE OF RIGHT TO APPEAL

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

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

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

DISTRICT EVIDENCE

Exhibit

Title

Date

Pages

DOE-1

IEP

05/09/2019

22

DOE-2

Prior Written Notice with Location Letter

06/12/2019

6

DOE-3

Psychological evaluation

01/07/2018^[44]

5

DOE-4

D75 Assistive Technology Equipment form

11/19/2019

3

PARENT EVIDENCE – PENDENCY HEARING

Exhibit

Title

Date

Pages

A.

Impartial hearing request

05/28/2020

7

B.

Advocacy Contract

05/16/2019

1

C.

Fact and Finding of Decision

02/06/2020

5

PARENT EVIDENCE – DUE PROCESS HEARING

Exhibit

Title

Date

Pages

P-A.

Impartial hearing request

05/28/2020

7

P-B.

Individualized Education Program

05/09/2019

13

P-C.

Ten Day Notice

06/17/2019

1

P-D.

Program Description

Undated

1

P-E.

Class Schedule

2019-2020

1

P-F.

Class Profile

2019-2020

1

P-G.

Progress Report

2019-2020

9

P-H.

Retainer Agreement

05/16/2019

1

P-I.

Related Services Invoice

2019-2020

1

P-J.

Enrollment Contract

06/02/2019

6

P-K.

School Affidavit

11/12/2020

2

P-L.

Affidavit of Testimony

03/22/2022

6

IHO EVIDENCE

Exhibit

Title

Date

Pages

IHO-I

Order on Pendency

11/08/2020

8

IHO-II

Parent’s representative’s Post-Hearing Closing Statement

05/25/2022

7

APPENDIX

REDACTED

Footnotes

[1] At the start of the SY, turning REDACTED years old before the end of the 2019-2020 SY.

[2] U.S.C. § 1400 et seq.

[3] C.F.R. § 300 et seq.

[4] Educ. Law Art. 89 § 4404 et seq.

[5] NYCRR § Part 200.

[6] The DPC contains other relief, but this was neither pursued at the IH nor requested in the Parent’s representative’s Post-Hearing Closing Statement (Exhibit IHO-II).

[7] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].

[8] U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].

[9] U.S.C. § 1415[f][3][E][i].

[10] See Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005]; G.M. v. Dry Creek Joint Elementary Sch. Dist., 595 F. App'x 698, 699 [9th Cir. 2014]; Jalloh v. Dist. of Columbia, 535 F. Supp. 2d 13, 19-20 [D.D.C. 2008]; and Sykes v. Dist. of Columbia, 518 F. Supp. 2d 261, 267 [D.D.C. 2007], as well as Application of a Student with a Disability, Appeal Nos. 20-167; 20-203 and 21-032.

[11] Rowley, 458 U.S. at 203.

[12] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.

[13] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.

[14] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.

[15] NYS Educ. Law § 4404(1)(c).

[16] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007],

[17] In L.B., ex rel. E.B., v. New York City Dep’t of Educ. (122 LRP 8348) (U.S. District Court, Southern District of New York) (21-CV-1033 (VEC)) (03/08/22).

[18] In re: Student with a Disability New York State Educational Agency (51 IDELR 295) 08-026 (108 LRP 34384) (2008).

[19] In re: Student with a Disability New York State Educational Agency.

[20] (20 U.S.C. § 1400[d][1][A]; Schaffer, 546 U.S. at 51; Rowley, 458 U.S. at 180-81; Frank G., 459 F.3d at 371).

[21] (20 U.S.C. § 1414[d][4][A]; 34 C.F.R. § 300.324[b][1][i]; see also Educ. Law § 4402[2]; 8 NYCRR 200.4[f].

[22] Rowley, 458 U.S. at 203.

[23] See H.L. v. New York City Dep't of Educ., 2019 WL 181307 [S.D.N.Y. Jan. 11, 2019] [noting that "[i]n light of M.O., courts have found that parents have the right to obtain timely and relevant information regarding school placement, in order to evaluate whether the IEP can be implemented at the proposed location"]; F.B. v New York City Dep't of Educ., 2015 WL 5564446 [S.D.N.Y. Sept. 21, 2015] [finding that the parents "had at least a procedural right to inquire whether the proposed school location had the resources set forth in the IEP"]; V.S. v New York City Dep't of Educ., 25 F. Supp. 3d 295, 299-301 [E.D.N.Y. 2014] [finding that the "parent's right to meaningfully participate in the school selection process" should be considered rather than the "parent's right to determine the actual school selection"]; C.U. v. New York City Dep't of Educ., 2014 WL 2207997 [S.D.N.Y. May 27, 2014] [holding that "parents have the procedural right to evaluate the school assignment" and "acquire relevant information about" it].

[24] See Luo v. Baldwin Union Free Sch. Dist., 2013 WL 1182232 [E.D.N.Y. Mar. 21, 2013], aff'd, 556 Fed. App'x. 1, 2013 WL 6726899 [2d Cir Dec. 23, 2013]; J.L. v. City Sch. Dist. of New York, 2013 WL 625064 [S.D.N.Y. Feb. 20, 2013]; See also; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 191-92 [2d Cir. 2012] [finding that a district may select a specific public-school site without the advice of the parents]; F.L. v. New York City Dep't of Educ., 2012 WL 4891748 [S.D.N.Y. Oct. 16, 2012] [noting that parents are not procedurally entitled to participate in decisions regarding public school site selection].

[25] See M.O. and G.O. v. New York City Dep't of Educ., 65 IDELR 283 (2d Cir. 2015).

[26] See R.E. v. New York City Department of Education, 59 IDELR 241 (2d Cir. 2012).

[27] See, e.g., Jusino v. New York City Dep't of Educ., 70 IDELR 87 (2d Cir. 2017, unpublished) (Evidence that a student with a disability could use a set of model steps and an outdoor staircase to work on one of his physical therapy benchmarks undercut the parents' claim that a one-story school building was an inappropriate placement.); and M.E. and T.E. v. New York City Dep't of Educ., 71 IDELR 125 (S.D.N.Y. 2018) (Testimony that a public school possessed sensory equipment and had the ability to meet the sensory needs of a 5-year-old boy with autism undercut the parents' claim that the proposed placement was inappropriate.).

[28] See, e.g., D.C. v. New York City Dep't of Educ., 61 IDELR 25 (S.D.N.Y. 2013) (Because a public special education school was not clearly a seafood-free environment when the parent of a 10-year-old boy with a life-threatening seafood allergy toured the facility, the proposed placement amounted to a denial of FAPE.).

[29] H.L. v. New York City Dep't of Educ., 69 IDELR 60 (S.D.N.Y. 2016)

[30] Broward County Sch. Bd., 110 LRP 38160 (SEA FL 05/07/10).

[31] C.F. v. New York City Dep't of Educ., 62 IDELR 281 (2d Cir. 2014).

[32] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007].

[33] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006].

[34] Gagliardo, 489 F.3d at 115.

[35] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).

[36] Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 [2d Cir., 2014]; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; 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"].

[37] U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 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, 192 Fed. App'x 62, 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 69 n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001].

[38] U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].

[39] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004].

[40] 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].

[41] Greenland Sch. Dist., 358 F.3d at 160.

[42] C.L., 744 F.3d at 840.

[43] Florence County School District Four v. Carter, 20 IDELR 532 (U.S. 1993).

[44] District’s representative corrected the typographical error regarding this date on the Record (T. P81, L20-25).