New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 538415 - NYC: 195144

FINDINGS OF FACT AND DECISION

Case Number: 538415 - NYC: 195144

Student’s Name:^[1] REDACTED (“the student”)^[2]

Date of Birth: REDACTED

School District: New York City Department of Education Hearing Requested by: REDACTED (collectively referred to as “Parent”)

Request Date: July 1, 2020 (amended May 10, 2021); July 1, 2021 (consolidated July 12, 2021)

Date(s) of Hearing: July 13, 2022; September 13, 2022

Actual Record Closed Date: April 28, 2023

Date of Decision: May 12, 2023

Date of Distribution if Different than Decision Date:

Hearing Officer: Amy Lynne Itzla, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 13, 2022

For the Parent:

REDACTED, Attorney For the DOE:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 13, 2022

For the Parent:

REDACTED Attorney For the DOE:

REDACTED, District Representative

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on the Parent’s Due Process Complaint (“DPC") filed on or about July 1, 2020 (amended May 10, 2021). (Parent Exhibit A)^[3] Parent filed another DPC on or about July 1, 2021. (Parent Exhibit B) The undersigned IHO was initially appointed to this matter on July 9, 2020, by the New York City Department of Education (“DOE”), which was designated as case number 195144. The IHO was appointed to the subsequent DPC on July 2, 2021, which was designated as case number 209679. An Order of Consolidation was issued by the IHO on July 12, 2021, consolidating the two matters.

A hearing was held on July 13, 2022, and September 13, 2022. It was a closed hearing, conducted by video/teleconference, with the presence of a court reporter to create a written transcript. The Parent was represented by REDACTED. The DOE was represented by REDACTED, District Representative. A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision. The record was closed on April 28, 2023.

In scheduling the hearing date, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]

JURISDICTION

The due process hearing was held and the Findings of Fact and Decision in this matter is being issued pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

The student was REDACTED years old at the beginning of the 2020-2021 school year and REDACTED years old at the end of the 2021-2022 school year. They have been classified by the DOE, through its Committee on Special Education (“CSE”), with Emotional Disturbance. On April 28, 2020, the CSE convened to develop an Individualized Education Program (“IEP”) for the student for the 2020-2021 school year. The CSE recommended an approved non-public residential program for the student. The Parent agreed with the recommended program, since the student was attending REDACTED (“REDACTED”) at the time, for the 2019-2020 school year, which is an approved non-public residential program. The DOE funded the student’s placement at REDACTED during the 2019-2020 school year. The CSE reconvened on June 22, 2020 and reissued an IEP for the student for the 2020-2021 school year. (DOE Exhibit 1) In a Prior Written Notice (Notice of Recommendation), dated June 29, 2020, the DOE proposed a twelve-month placement in a special class in a “NYSED-Approved Non Public School - Residential.” (DOE Exhibit 2) In addition, the DOE recommended related services and a one-to-one paraprofessional. The behavior paraprofessional was recommended for the period from July 1, 2020, through September 30, 2020, with continuation to be determined prior to the end date. The paraprofessional was provided for Monday through Friday (six hours school, ten hours maintenance) and Saturday and Sunday (sixteen hours maintenance). The CSE reconvened on September 30, 2020 and determined that it was necessary to continue the paraprofessional, which was reflected in the IEP of that date and the Prior Written Notice (Notice of Recommendation), dated October 5, 2020. (DOE Exhibits 3, 4)

Since the DOE did not locate a placement for the student for the 2020-2021 school year, the Parent unilaterally placed student at REDACTED for the twelve-month 2020-2021 school year. In December 2020, the Parent communicated to the DOE that the student was deteriorating and refusing to return to REDACTED. On January 4, 2021, the CSE convened and changed the recommendation for the student to a 12:1:1 District 75 program. (DOE Exhibits 6, 7) The Parent disagreed, since that program, with far less support than the setting in which the student was struggling, was completely inappropriate. In February 2021, the student was hospitalized at REDACTED. The Parent notified the DOE at the time of the hospitalization and, thereafter, shared a neuropsychological assessment evaluation, dated March 22, 2021. (Parent Exhibit N) The student was diagnosed with REDACTED.

The CSE convened on March 26, 2021 and developed an IEP for the student for the twelve-month 2021-2022 school year, with a recommendation for a residential non-public school program, related services, and a paraprofessional. (DOE Exhibit 8, 9) This represented a change from the January 4, 2021, public school recommendation. Upon the student’s discharge from REDACTED, the student required residential placement for the remainder of the 2020-2021 school year. The Parent maintained that the January 4, 2021, IEP was clearly inappropriate, as the CSE recognized by changing its recommendation in the March 26, 2021, IEP. However, the March 26, 2021, IEP was not to be implemented until July 1, 2021. For the period from the student’s release from REDACTED to the end of the 2020-2021 school year, there was not an appropriate IEP in place, or a placement provided by the DOE. The Parent asserts that it was a failure for the DOE to delay the student’s return to a residential program.

By letter to the DOE dated April 22, 2021, through counsel, the Parent notified the DOE that, since the March 26, 2021, IEP, which recommended an 8:1:1 special class with a 1:1 paraprofessional, would not be in effect until July 1, 2021, the Parent would be unilaterally placing the student at REDACTED (“REDACTED”) and seeking funding from the DOE, for the remainder of the 2020-2021 school year. (Parent Exhibit C)

The IEP created on March 26, 2021, was to be implemented effective July 1, 2021. The Parent presented its objections to the IEP and cited the DOE’s failure to locate an appropriate residential placement for the student for the 2021-2022 school year. By letter to the DOE dated June 16, 2021, through counsel, the Parent notified the DOE that, they had contact with REDACTED, a state-approved non-public school. (Parent Exhibit D) Based on the Parent’s discussions with the school’s intake office and the Head of School, on May 19, 2021, and May 28, 2021, respectively, it was determined by the Parent and the school that the program was not appropriate for the student. The program only offered 12:1:1 classes. The Parent believed, and the CSE’s March 26, 2021, IEP recommendation confirmed, that the student required an 8:1:1 special class. Even with the support of an 8:1:1 class, the CSE had also recommended a full-time one-to-one paraprofessional. Therefore, the Parent notified the DOE that, they would be unilaterally placing the student at REDACTED and seeking funding from the DOE, for the twelve-month 2021-2022 school year.

The Parent’s position is that: the DOE failed to offer a Free Appropriate Public Education (“FAPE”) to the student for the twelve-month 2020-2021 and 2021-2022 school years; REDACTED was an appropriate placement for the beginning of the 2020-2021 school year; REDACTED was an appropriate placement for the end of the 2020-2021 school year; REDACTED was an appropriate placement for the twelve-month 2021-2022 school year; and the equities favor the Parent.

The remedy sought by the Parent had initially included, among other things, funding for the student’s placement at REDACTED for the portion of the twelve-month 2020-2021 school that they attended. The Parent had maintained that “The funding of REDACTED should have been resolved under a pendency agreement and/or STAC Funding. Thus, assuming that the funds have been paid to REDACTED as due under the law, the only issue is to resolve the Parents’ funding for REDACTED for the April 2021 – June 2021 timeframe.” (Parent’s Exhibit A) The DOE’s documents show that there was approval for the funding of the student’s placement at REDACTED for the 2020-2021 school year. (DOE Exhibit 5) The Parent’s testimony did not include any reference to tuition owed to REDACTED and the Parent’s closing argument included a statement confirming that, “The Department of Education has paid for the student's placement at REDACTED during the 2020 to 2021 academic year.” (T. 59) Therefore, the remaining remedy being requested by the Parent is funding for tuition at REDACTED during the 2020-2021 and 2021-2022 school years.

POSITIONS OF THE PARTIES

THE DOE’S CASE

On the first day of hearing, July 13, 2022, the DOE offered documents that were admitted into evidence and stated that the DOE was “waiving Prong 1 in this case, but it’s challenging the appropriateness of the student’s unilateral placements.” (T. 47)^[4] The DOE chose not to cross-examine the witnesses for the Parent, although they were available for that purpose. The DOE waived the opportunity to present a closing argument. The DOE did not present any specific challenge to the Parent’s placements, as there was nothing in the record explaining or elaborating on what was meant by the DOE “challenging the appropriateness of the student’s unilateral placements.” THE PARENT’S CASE The Parent presented the testimony of two witnesses: REDACTED, Director of REDACTED; and REDACTED the student’s mother. The direct testimony of each witness was presented through a sworn affidavit. The witnesses were available to appear for the hearing for the DOE's cross-examination. However, the DOE chose not to question the witnesses.

REDACTED is the Director at REDACTED. He provided his direct testimony through a sworn affidavit, which is fully considered part of this decision although not included in its entirety. (Parent Exhibit BB) REDACTED oversees the residential treatment program, which includes a middle school, a high school, the staff and the students. REDACTED described REDACTED as follows:

REDACTED is a REDACTED State Education Department Approved Residential Treatment Facility. We serve male, female, transgender, and gender non-conforming students between the ages of 12 and 21. Our focus is to create an environment that helps students heal and develop necessary skills to have a successful future. To do this, we provide inclusive, nondiscriminatory health and mental health care to youth with diverse gender, sexual identities and expressions. Our mission at REDACTED is to build a community-centered around respect for each other and for our environment. Through sophisticated clinical leadership and individualized care, we create opportunities for our students to experience success daily. We support a culture where students embrace their resiliency and develop internal capacities that allow their future to be greater than their past. We provide comprehensive clinical, educational, vocational, and medical services for Lesbian, Gay, Bisexual, Transgender, Questioning, Intersex (LGBTQI), and allied youth.

We specialize in working with students who have experienced significant challenges in life resulting in difficulties regulating their emotional and physiological responses. At REDACTED students have the opportunity to live in a safe and supportive community where they can develop their capacities for self-regulation to improve their relationships and maximize their strengths. Through this approach, we prepare our students to navigate the complexities of everyday life.

REDACTED stated that, during the 2020-2021 school year, there were 57 students at REDACTED from ages 12 to 20 and approximately 80 faculty members. During the 2021-2022 school year, there were 57 students from ages 12 to 20 and approximately 80 faculty members.

REDACTED explained that:

Our class size is limited to eight students and ensures personal interactions with teachers through group and differentiated learning curricula. Subsequently, teachers and staff are able to meet our students' individual needs while keeping pace with the home school’s requirements. We strive to be as current as possible and in doing so employ most of our curriculum-based learning with the support of Chrome Books and Google apps.

He also described the “trauma-informed milieu and milieu counselors.” He further explained:

Clinical Interventions are guided by the Attachment, Self-Regulation, and Competency (“ARC”) treatment framework, which focuses on supporting our students in safely managing their overwhelming emotions in order to work on improving their relationships with those around them. We help our students explore their sense of self separate from their past experiences by fostering and developing their skills and interests, so they form a positive identity. We offer community-based services as students prepare to transition, which focuses on life skills development in order to support students for living independently or with their families. A clinical treatment plan is designed for each student based on their individual strengths and needs, which is implemented in individual, group, and family therapy as well as in the milieu and classroom. Specific trauma-informed interventions include trauma-sensitive yoga, Neurofeedback, Trauma Drama, and SMART (Sensory Motor Arousal Regulation Treatment), which is an evidence-based practice.

REDACTED described the documents reviewed for the student during the admission process. They included an evaluation from Child Mind Institute, the REDACTED School Review and progress reports, and the assessment from REDACTED. (Parent Exhibits J, M, N) Based on the interview with the student and the information in the documents, the admissions process concluded in a determination that the student required a therapeutic residential program and REDACTED accepted them into the program. They began as a student at REDACTED on April 28, 2021, presenting with “significant challenges surrounding self-regulating, especially when faced with overwhelming emotions, as well as executive functioning deficits, which were evident in the inability to autonomously organize, plan and maintaining [sic] a routine.” REDACTED testified regarding the informal vocational and educational assessments conducted to determine the student’s areas of need. He also explained, in detail, their areas of academic difficulty and their needs in each academic area. REDACTED described the student’s social-emotional needs, which required “a residential program with consistent access to therapeutic supports throughout his day in order to meet his ever-changing moods and needs.” REDACTED explained the many strategies utilized to address the student’s complex needs in this area. Daily living skills were also an area requiring significant support, as were behavioral needs. REDACTED also testified with regard to the extensive transition skills program provided to the student. REDACTED confirmed the student’s schedules for the 2020-2021 and 2021-2022 school years. (Parent Exhibit L) In his testimony, REDACTED described the student’s progress from the latter part of the 2020-2021 school year, when they enrolled, and throughout the 2021-2022 school year. Regarding the appropriateness of the student’s placement at REDACTED, REDACTED testified that:

I believe that REDACTED was appropriate for [the student]—both in terms of its academic instruction and residential programming—for both the 2020-2021 and 12-month 2022-2023 school years. [The student] was supported with and made progress in his ability to self-regulate and autonomously manage his routine. He was amenable to staff support and also showed growth in his ability to advocate for his needs in a realistic manner. [The student] progressed in his academic courses, improved his social-emotional and behavioral skills, and improved his daily living needs. [The student] was able to set himself up for a successful transition to adulthood, including the ability to live in his community and attend college. [The student] was discharged from REDACTED on June 24, 2022 after successfully completing our program and meeting his goals.

I believe that [the student] benefitted from a residential setting with small classes, small student to teacher ratios where [the student] could be academically challenged but socially and emotionally supported throughout the day and night. I believe we at REDACTED provided this to [the student] during the 2020-2021 and 2021-2022 school years and that REDACTED was reasonably calculated to confer a benefit to [the student]. I firmly believe that [the student] made appropriate progress in light of his unique needs within REDACTED’s structured and specialized setting, and that REDACTED was appropriate for [the student] for both the 2020-2021 and 2021-2022 school years.

REDACTED is the student’s mother. She provided her direct testimony through a sworn affidavit, which is fully considered part of this decision although not included in its entirety. (Parent Exhibit CC) REDACTED described the student as “a very creative and caring individual.” She stated that, “They have special talents as a visual artist and as a storyteller. They care about friends and family. However, they struggle with emotional regulation and boundaries. They can be triggered quickly to anger, sometimes as a form of self-defense, and may become physically aggressive.” REDACTED described the student’s educational history. The student required special education supports, including paraprofessionals and related services beginning in pre-school. At age five, the student transferred from a DOE public school to a non-public school in REDACTED New York, in a 6:2:1 setting. At age eight, for the 2011-2021 school year, the student began attending the REDACTED, through a DOE placement. The student was having progressively more difficult years while at REDACTED. In November 2017, REDACTED informed the Parent that the school could no longer meet the student’s needs and that they required a residential placement “due to aggression, mood disorder, and regression of hygiene, toileting, and daily living activities.” REDACTED testified that from March 2018 through August 2018, the student attended a residential treatment center called REDACTED. After a hospitalization in August/September 2018, the student attended REDACTED at until January 2019. The student was then hospitalized at REDACTED from January through March 2019. In March 2019, the student began attending REDACTED and continued through the remainder of the 2018-2019 school year. The student continued in REDACTED residential program for the twelve-month 2019-2020 school year, which was funded by the DOE through a P-1 Nickerson letter. It was at the IEP meeting in April 2020 that the CSE classified the student with Emotional Disturbance and recommended deferral to the Central Based Support Team (“CBST”) for a 12:1:1 special class at an approved non-public residential program. REDACTED confirmed the events following that meeting that are included above. When the student was re-evaluated by REDACTED, it was recommended that they continue hospitalization and transfer to a residential treatment center post-hospitalization. In the REDACTED report, dated March 22, 2021, the Parent was advised of the multiple diagnoses given to the student and that the student had chosen a new name and identified as male. The Parent shared the evaluation with the DOE. When the CSE convened on March 26, 2021, the recommendation changed from the program the student attended at REDACTED, a 12:1:1, to an 8:1:1 special class with a one-to-one paraprofessional in a residential non-public school and the CSE deferred the case to the CBST for placement. However, the recommendation was not to go into effect immediately, although the student would need an immediate placement. It was, instead, effective July 1, 2021. REDACTED testified that the DOE was notified that, if there was not an appropriate placement provided, the Parent would unilaterally place the student at REDACTED. REDACTED explained that “We chose the REDACTED, part of REDACTED, because it has a special program for LGBT youth. It is a very small program with an emphasis on anti-bullying. Most of all, the school was able to meet REDACTED’s academic and emotional needs to help them to finish their last year-and-half of high school.” She also stated that, “REDACTED made considerable progress within a few weeks of arriving at REDACTED, in part because of counseling that focused on LGBT and trans issues. The school gave REDACTED a ‘job’ as the campus artist, paying them for designing posters for school activities and this boosted self-esteem. REDACTED participated in sports teams as well.” REDACTED explained the communications that transpired involving REDACTED and the CSE and the determination that REDACTED could not provide an appropriate program to the student. There was no response to REDACTED correspondence to the CSE, which, therefore, resulted in the unilateral placement of the student at REDACTED for the twelve-month 2021-2022 school year. REDACTED described the progress the student made during the 2021-2022 school year. She stated that the student was provided with a transition program, which gave the student confidence in themself to complete high school. REDACTED explained that “The structured support, modeling of appropriate skills, and solid relationships really prepared [the student] to enter college and adulthood with skills that [the student] would not otherwise have had it not been for REDACTED.” She further stated that, REDACTED’s program was reasonably calculated to provide the student with an educational benefit and the decision to unilaterally place them there in April 2021, and again for the twelve-month 2021-2022 school year, was a “thoughtful and well considered decision.” REDACTED testified that the Parent had paid the student’s tuition for the period of the 2020-2021 school year that they attended REDACTED, from April 28, 2021, through June 30, 2021, in the amount of $39,625.60. REDACTED also testified that the Parent paid the tuition for the twelve-month 2021-2022 school year to REDACTED, in the amount of $231,098.13.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The DOE has the burden of establishing that it offered a FAPE to REDACTED. (R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-185 [2d Cir. 2012]; Educ. Law § 4404[1][c]). 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; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E., 694 F.3d at 189-190; 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. Fla. 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 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. 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]). 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 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 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" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations 5 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]). 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 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) (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).

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]), 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]).

The DOE did not attempt to claim that it had met any of its obligations to the student and, instead, waived Prong I and chose not to present a case. The DOE effectively conceded its failure to offer a FAPE to the student for the 2020-2021 and 2021-2022 school years. The DOE barely participated in the impartial hearing. The DOE briefly noted it was “challenging the appropriateness of the student’s unilateral placements” with no further mention of it, waived its opportunity to cross-examine the Parent’s witnesses, and waived a closing argument. The DOE clearly and unanimously failed to offer a FAPE to the student for the 2020-2021 and 2021-2022 school years.

The Parent has the burden of establishing the appropriateness of the program they provided to student. (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, they must demonstrate that the services offer an educational program which meets the student’s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29; Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363; Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105 [2d Cir. 2007]) The standard used to measure the appropriateness of the parent’s placement is “not perfection.” (M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 [2d Cir. 2000]) “The issue turns on whether a placement - public or private- is reasonably calculated to enable the child to receive educational benefits.” (Gagliardo, 489 F. 3d at 112)

I find that the Parent has prevailed with respect to the appropriateness of the student’s placement at REDACTED in the 2020-2021 and 2021-2022 school years. Those who know the student strongly agreed that the student’s placement at REDACTED was appropriate for them. REDACTED provided the therapeutic residential program and academic setting for which the student was recommended. The small classroom setting, transition programming, environment mindful and able to address gender identity concerns, self-care supports, and strategies used to increase self-esteem and confidence, were only some of the aspects demonstrating the program’s appropriateness for the student. The program was able to address the student’s complex profile and provide individualized instruction, including one-to-one support, as needed. REDACTED was able to support the student academically, socially, emotionally, and behaviorally. REDACTED was equipped to prepare the student for life after high school, which for the student meant attending college. The student made progress in all domains at REDACTED. REDACTED and REDACTED provided persuasive and unrefuted testimony and supporting evidence to this effect. The witnesses strongly affirmed the appropriateness of the program to address the students’s individual and complex needs. It was the consensus of the witnesses that the program was reasonably calculated to allow the student to receive educational benefits in all areas and make meaningful progress. REDACTED and REDACTED both described the progress the student made during the 2020-2021 and 2021-2022 school years.

It must be emphasized that the DOE did not express any specific challenge to the appropriateness of REDACTED or take any steps to assert a position in that regard. I find that the Parent has prevailed with respect to the appropriateness of the student’s placement at REDACTED for the 2020-2021 school year, from April 28, 2021, through June 20, 2021, and for the twelve-month 2021-2022 school year.

The final criterion for an award is whether the Parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; 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"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). An award may be impacted by a parent’s failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026).  In the absence of evidence demonstrating that a parent failed to cooperate in the development of the IEP, or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support an award in favor of the parent. (Application of a Child with a Disability, Appeal No. 04-049).

There were no assertions made by the DOE with regard to any equitable consideration that would preclude or adversely affect an order in favor of the Parent. The record clearly established that the Parent actively participated in every aspect of the process in good faith. The Parent cooperated and communicated extensively with the DOE at every step during an extremely difficult time for the student and the Parent. There is absolutely no basis on which to reduce or modify the remedy for the Parent.

ORDER

1. The DOE failed to provide a FAPE to the student for the 2020-2021 and 2021-2022 school years;

2. The Parent’s unilateral placement of the student at REDACTED for the period of the twelve-month 2020-2021 school year, from April 28, 2021, through June 30, 2021, was appropriate;

3. The Parent’s unilateral placement of the student at REDACTED for the twelve-month 2021-2022 school year was appropriate;

4. There are no equitable considerations which would reduce or bar an award of reimbursement; and, therefore,

A. The DOE shall immediately reimburse the Parent for the tuition paid to REDACTED for the period of the twelve-month 2020-2021 school year during which the student attended, from April 28, 2021, through June 30, 2021, in the amount of $39,625.60. Proof of the amount paid by the Parent to REDACTED for tuition for that period has already been established (see Parent Exhibits U, Y); and,

B. The DOE shall reimburse the Parent for the tuition paid to REDACTED for the twelve-month 2021-2022 school year immediately upon the submission of proof of payment by the Parent to the DOE.

SO ORDERED.

DATED: May 12, 2023 Amy Lynne Itzla, Esq.

Amy Lynne Itzla Esq.

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 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.

APPENDIX A – REDACTION IDENTIFICATION PAGE

SUBMIT THIS PAGE TO THE PARENT AND SCHOOL DISTRICT ONLY. DO NOT SUBMIT TO THE NYSED.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

DOE Exhibits

Number Date Name of Document # of Pages

1 6/22/20 IEP 32

2 6/29/20 Prior Written Notice 4 (Notice of Recommendation)

3 9/30/20 IEP 33

4 10/5/2020 Prior Written Notice 4 (Notice of Recommendation)

5. 11/19/2020 STAC 4

6 1/4/2021 IEP 32

7 1/11/2021 Prior Written Notice 4 (Notice of Recommendation)

8 3/26/2021 IEP 32

9 4/1/2021 Prior Written Notice 4 (Notice of Recommendation)

Parent Exhibits

Letter Date Name of Document # of Pages

A 5/10/21 Impartial Hearing Request 7

B 7/1/21 Impartial Hearing Request 8

C 4/22/21 Ten Day Notice 6

D 6/16/21 Ten Day Notice 3

E 1/12/21 Email from CSE re Discharge 1

F 5/11/21 Email to CBST 1

G 5/17/21 Email with CBST 14

H 5/18/21 CBST Email 2

I 6/14/21 Email with CBST 4

J 4/27/20 Evaluation 3

K 2020-2021 & Program Description 3 2021-2022

L 2020-2021 & Schedules 3 2021-2022

M January 2021 School Review Information 17

N 2/2/21 Evaluation 10

O 4/26/21 Contract 5

P 4/26/21 Vocational Assessment 2

Q 5/1/21 Educational Assessment 4

R 6/1/21 June 2021 Invoice 1

S 6/11/21 Progress Report 6

T 6/28/21 Treatment Plan 4

U 6/28/21 Tuition Affidavit 2

V 8/2/21 Treatment Planning Conference 60

W 8/20/21 Progress Report 6

X 10/5/21 Attendance 2

Y 10/14/21 Letter Confirming Payments 1

Z 10/28/21 Tuition Affidavit 2

AA April-October 2021 Proof of Payments 9

BB 9/7/22 Affidavit, REDACTED 13

CC 9/12/22 Affidavit, REDACTED 6

Footnotes

[1] Personally identifiable information is attached to this decision as Appendix A, “Redaction Identification Page,” and must be removed prior to public distribution.

[2] As described by the Parent, REDACTED has “gender identity concerns” and was, therefore, referred to primarily as “REDACTED” with the pronouns they/them/their, during the course of the impartial hearing. Within this decision, REDACTED will be referred to as “the student,” since either “the student” or initials are typically used in these decisions.

[3] A more detailed list of the admitted exhibits is attached to this decision as Appendix B, “Documentation Entered Into the Record.”

[4] References to the transcript are indicated by “T.” followed by the page number(s).