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Special Education Law
DECISIONParent PrevailedIHO Case No. 194888

New York City Department of Education, Impartial Hearing Decision

August 5, 2022·Jeffrey J. Schiro·03

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

NYSED # 538158 / NYC # 194888

FINDINGS OF FACT & DECISION

Case Number: 194888

Student Name: [REDACTED]

(hereinafter referred to as the “Student”)

Date of Birth: [REDACTED]

District: 03

Hearing Requested By: Parents

Date of Hearing: June 4, 2021

Actual Record Close Date: July 22, 2022

Hearing Officer: Jeffrey J. Schiro, Esq.

Date of Decision: August 5, 2022

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 4, 2021

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Director, [Private School]

For the District:

[REDACTED], District Representative

I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the attorneys for student and the parent in a due process complaint dated June 30, 2020. The primary issue to be determined at this hearing is whether the New York City Department of Education (the “DOE”) offered the student a free appropriate public education (“FAPE”) for the 2020/21 school year (Ex. P-A).[1]

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1).

An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii).

The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration of the resolution session period. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).

II. PROCEDURAL HISTORY

On July 6, 2020, the DOE appointed the undersigned to serve as the IHO in this matter. See 8 NYCRR § 200.5(j)(3)(i). On July 15, 2020, the parties entered into a pendency agreement, see 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m), providing for the student’s receipt of private programming at public expense for the duration of this proceeding (Ex. P-E). The parent filed an amended due process complaint on November 16, 2020, and again on January 7, 2021 (Exs. P-B, P-C). See 8 NYCRR § 200.5(i)(7). A hearing on the merits of the matter was held on June 4, 2021.[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

III. FACTUAL BACKGROUND

At the time of the January 7, 2021 amended due process complaint, the student was [REDACTED] years old and has been diagnosed with autism (Ex. P-C at 1-2). For the 2020/21 school year, the student received specialized instruction and related services in-school and at home from the [REDACTED] (hereinafter referred to as the “Private School”) and the [REDACTED] (hereinafter referred to as the “Private Program”) (Exs. P-E, P-L, P-M, P-N, P-O, P-P, P-Q, P-R, P-S, P-T, P-U). The Private School and the Private Program have not been approved by the Commissioner of Education as independent schools with which public school districts may contract to provide special education and related services to student with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with autism is not in dispute in this hearing (Ex. P-A at 2). See 34 C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1).[3]

Due to his autism, the student displays a variety of interfering behaviors and delays in the academic, behavioral, communication, social, and adaptive domains. He has a short attention span and struggles with generalization of skills. The student also exhibits significant delays in the areas of expressive and receptive language (Ex. P-C at 2).

The parties’ familiarity with the student’s educational history prior to the 2020/21 school year, as fully set forth in my Findings of Fact and Decision of March 30, 2020 (Case No. 166731) and my Findings of Fact and Decision of February 5, 2021 (Case No. 183817), is assumed and will not be restated here.

On June 14, 2020, the parent (through counsel) advised the DOE in writing that it had not offered the student a FAPE and that she would have no choice but to keep the student in a private program at public expense (Ex. P-F). The DOE did not respond to the parent’s ten day notice letter (Ex. P-V at 2).

Instead, on October 9, 2020, the CSE convened to develop an IEP for the student through October 2021. The CSE recommended that the student receive the majority of his instruction in an 8:1+1 special class in a specialized (District 75) school on a twelve month basis. The CSE also recommended that the student receive the following related services: specialized transportation; individual occupational therapy, two (2) times per week for thirty (30) minutes per session; group (2:1) occupational therapy, one time per week for thirty (30) minutes per session; group parent counseling and training for sixty (60) minutes per session; individual speech/language therapy, two (2) times per week for thirty (30) minutes per session; and group (2:1) speech/language therapy, two (2) times per week for thirty (30) minutes per session (Exs. SD-1 at 27-29, 31). On October 15, 2020, the DOE mailed the IEP to the parent along with a school location letter, indicating that the student’s recommended program would be implemented at P.S. [REDACTED] (Exs. SD-2, SD-3).

The parent objects to the October 9, 2020 IEP on a number of procedural and substantive grounds (Ex. P-C at 11-14). This hearing ensued.

IV. POSITIONS OF THE PARTIES

A. The DOE The DOE declined to make an opening statement or offer the testimony of any witnesses in support of recommended program. The DOE rested on its direct case following the admission into the hearing record of four of its proposed exhibits (R. 26-34).

B. The Parent The DOE denied the student a FAPE during the 2020/21 school year. The DOE should be ordered to reimburse the parent, and/or directly pay, for the student’s unilateral placements at the Private School and the Private Program for the 2020/21 school years on a twelve (12) month basis. The student made significant progress while placed at the Private School and the Private Program. There are no equitable reasons to withhold or reduce reimbursement and/or direct payment for private educational instruction and services (R. 48-57; Ex. P-C).

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Applicable Legal Standards

Two purposes of the IDEA, see 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, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).[4]

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. See Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); 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). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 2017). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); 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. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 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. See 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." See Rowley, 458 U.S. at 203. The "IDEA, [however,] does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 137 S. Ct. at 1001. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379.

Additionally, school districts are not required to "maximize" the potential of students with disabilities. See 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.'" See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also 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" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Endrew F., 137 S. Ct. at 1001 (holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”); Rowley, 458 U.S. at 192.

The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also 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. Board 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 C.F.R. § 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), 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 C.F.R. §§ 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 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).[5]

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. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. See Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).

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. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).

B. Recommended Public Programs The evidence contained in the hearing record demonstrates that the DOE failed to timely develop an IEP or recommend specific educational placement for the student for the 2020/21 school year.

In general, the IDEA and State regulations require that a school district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability. See 34 C.F.R. § 300.323(a); 8 NYCRR § 200.4(e)(1)(ii); Cerra, 427 F.3d at 194; K.L. v. New York City Dep't of Educ., 2012 WL 4017822, at *13 (S.D.N.Y. Aug. 23, 2012), aff'd, 530 Fed. App'x 81, 2013 WL 3814669 (2d Cir. July 24, 2013); B.P. v. New York City Dep't of Educ., 841 F. Supp. 2d 605, 614 (E.D.N.Y. 2012).[6] Once an IEP is developed and a parent consents to a school district's provision of special education services, the IDEA is clear such services must be provided to the student by the school district in conformity with the student's IEP. See 20 U.S.C. §§ 1401(9)(D), 1414(d); 34 C.F.R. §§ 300.17(d), 300.320. Implicit in a school district's obligation to implement an IEP is the requirement that, at some point prior to or contemporaneous with the date of initiation of services under an IEP, a school district must notify parents of the bricks and mortar location of the special education program and related services in a student's IEP. See Application of the New York City Dep’t of Educ., Appeal No. 14-083 at 13 (SRO Jan. 8, 2015).

Three months after the (twelve month) 2020/21 school year began, the CSE convened to develop an IEP for the student (Ex. SD-2). Without any reevaluation (since 2013) or explanation, the CSE terminated most of the student’s then-current educational program, his 1:1 and 2:1 services, his ABA, as well as his extended school day program of 1:1 instruction and speech/language therapy services (Exs. SD-2 at 27-29, 31; SD-3, P-V at 3). Based the limited presentation made by the DOE, I find that it failed to timely develop an IEP or recommend a specific educational placement for the student for the 2020/21 school year which would offer him a FAPE for that school year. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).

C. Appropriateness of the Private School and the Private Program

Given my finding that the DOE failed to timely offer the student a FAPE for the 2020/21 school year, I turn to the appropriateness of the private program and services secured by the parent for the student during that school year. With respect to the second criterion for an award of reimbursement, parents must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.

In order to meet that burden, a private placement must be “proper under the Act,” see 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. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize a student’s potential. See Frank G., 459 F.3d at 364-65. When determining whether the parent’s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV-692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).

Based on the evidence entered into the hearing record, including the credible testimony of [REDACTED], Director of the Private School; [REDACTED], the student’s BCBA Case Manager at the Private Program; [REDACTED], the student’s speech/language pathologist at the Private Program; and the parent, I find that the Private School and the Private Program provided to the student with specifically designed, individualized instruction to meet his unique educational needs during the 2020/21 school year (Exs. P-G, P-H, P-I, P-J, P-K, P-L, P-M, P-N, P-O, P-P, P-Q, P-R, P-S, P-T, P-U).

D. Relevant Equities The final criterion for a reimbursement/direct payment award is that a parent's claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. See 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). “Courts fashioning discretionary equitable relief under [the] 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 placement was unreasonable.” Carter, 510 U.S. at 16.

The IDEA provides that reimbursement and/or direct payment 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. See 20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 300.148(d); 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. Appx. 62, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-661 (S.D.N.Y. 2005).

The IDEA also provides that reimbursement and/or direct payment 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 ten (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.” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 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. See

Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger, 348 F.3d at 523-24; Rafferty, 315 F.3d at 27; see also Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68.

The relevant equities support an award of tuition reimbursement and/or direct payment for the student’s unilateral placement at the Private School and the Private Program during the 2020/21 school year. In a letter dated June 14, 2020, the parent provided the DOE with adequate prior written notice of her intent to make unilateral placements of the student at public expense during the disputed school year (Ex. P-F). There is also no evidence indicating that the parent was uncooperative with the CSE (Exs. SD-1, SD-3, SD-5), see 20 U.S.C. § 1412(a)(10)(C)(iii), nor was the tuition and related services costs for the Private School and the Private Program unreasonable given the severity of the student’s educational needs, see Carter, 510 U.S. at 16.

VI. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS

HEREBY ORDERED THAT:

1. The parent’s claim that the student was denied a free appropriate public education (FAPE) for the 2020/21 school year is SUSTAINED;

2. The following program and services were appropriate for the student for the 2020/21 twelve-month extended school year:

a. the [REDACTED] program at the Private School; b. individual (1:1) after-school speech/language therapy, three (3) times per week for sixty (60) minutes; c. ten (10) hours per week of 1:1 instructional services after-school; d. one hour per week of ABA supervision; and e. air conditioned transportation;

3. To the extent that the DOE has not funded any of tuition or services that were required under pendency, including, but not limited to, tuition at the Private School, ten (10) hours per week of 1:1 instruction, and individual speech/language therapy services (3x60) after school, the DOE shall reimburse the Parent, and/or fund or satisfy the Parent’s debt for any of those services that were provided; and

4. If the student did not receive the full pendency mandate of ten (10) hours per week of 1:1 instruction or individual speech/language therapy (3x60) after school during the pendency of this case, then the DOE shall award compensatory banks equal to any services mandated under the DOE’s July 15, 2020 Pendency Agreement but not provided to the Student.

Dated: August 5, 2022

/s/ Jeffrey J. Schiro

Jeffrey J. Schiro, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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 plan 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.

DOCUMENTATION ENTERED INTO THE HEARING RECORD

PARENTS

  • • Due Process Complaint/Impartial Hearing Request, 6/30/20, 16 pgs.
  • • Amended Due Process Complaint/Impartial Hearing Request, 11/16/20, 16 pgs.
  • • Second Amended Due Process Complaint/Impartial Hearing Request, 1/7/21, 16 pgs.
  • • Findings of Fact & Decision (Case No. 166731), 3/30/20, 20 pgs.
  • • Pendency Agreement, 7/15/20, 2 pgs.
  • • Ten Day Notice, 6/14/20, 3 pgs.
  • • FBA & BIP, 3/2020, 6 pgs.
  • • Classroom Goals, 2020/21, 6 pgs.
  • • Speech/Language Therapy Goals, 2020/21, 2 pgs.
  • • Occupational Therapy Goals, 2020/21, 3 pgs.
  • • Interim FBA & BIP, 9/2020, 3 pgs.
  • • Classroom Progress Report, 7/2020 – 12/2020, 6 pgs.
  • • Occupational Therapy Progress Report, 7/2020 – 12/2020, 6 pgs.
  • • Physical Therapy Progress Report, 7/2020 – 12/2020, 4 pgs.
  • • ABA Progress Report, 12/2020, 6 pgs.
  • • Speech/Language Therapy Progress Report, 3/2021, 4 pgs.
  • • Affidavit of [REDACTED], 5/27/21, 14 pgs.
  • • Affidavit of [REDACTED], 5/21/21, 6 pgs.
  • • Affidavit of [REDACTED], 5/28/21, 5 pgs.
  • • Affidavit of Parent, 5/26/21, 8 pgs.
  • • Amended Affidavit of [REDACTED], 6/4/21, 5 pgs.
  • • Parent’s Closing Statement, 1/12/22, 12 pgs.

SCHOOL DISTRICT

  • • Individualized Education Program (IEP), 10/09/20, 34 pgs.
  • • School Location Letter, 10/15/20, 3 pgs.
  • • Prior Written Notice, 10/15/20, 5 pgs.
  • • [Reserved]
  • • IEP Attendance Page, 10/9/20, 1 pg.

IMPARTIAL HEARING OFFICER

  • • Extension Order, 3/28/21, 1 pg.
  • • Extension Order, 4/27/21, 1 pg.
  • • Extension Order, 5/27/21, 1 pg.
  • • Extension Order, 6/26/21, 1 pg.
  • • Extension Order, 7/26/21, 1 pg.
  • • Extension Order, 8/25/21, 1 pg.
  • • Extension Order, 9/24/21, 1 pg.
  • • Extension Order, 10/24/21, 1 pg.
  • • Extension Order, 11/23/21, 1 pg.
  • • Extension Order, 12/23/21, 1 pg.
  • • Extension Order, 1/22/22, 1 pg.
  • • Extension Order, 2/21/22, 1 pg.
  • • Extension Order, 3/23/22, 1 pg.
  • • Extension Order, 4/22/22, 1 pg.
  • • Extension Order, 5/22/22, 1 pg.
  • • Extension Order, 6/21/22, 1 pg.
  • • Extension Order, 7/21/22, 1 pg.

Footnotes

[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”

[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ respective witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 10-11, 77-79; Exs. IHO-I – IHO-XVII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).

[3] Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student’s educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied. 8 NYCRR § 200.1(zz)(1).

[4] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

[5] 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." See Endrew F., 137 S. Ct. at 1000.

[6] In New York State, the school year is defined as the "period commencing on the first day of July in each year and ending on the thirtieth day of June next following." See N.Y. Educ. Law § 2(15).