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NYSED # 540496 / NYC # 197174
FINDINGS OF FACT AND DECISION
Case Number: 197174
Student’s Name: STUDENT
School District: SCHOOL DISTRICT
Impartial Hearing Officer: Michele Host
Date of Filing: 08/28/2020
Hearing Requested by: PARENTS
Dates of Hearing: 8/9/2021
9/24/2021
10/1/2021
11/1/2021
Record Close Date: 5/9/2022
Date of Decision: 5/11/2022
NAMES AND TITLES OF PERSONS WHO APPEARED:
ON AUGUST 9, 2021
For the Student:
REDACTED (hereinafter referred to as the “Parents’ Attorney”)
REDACTED (hereinafter referred to as the “Principal of the Attending School”)
REDACTED (hereinafter referred to as the “Mother”)
For the New York City Department of Education (the “District”)
REDACTED (hereinafter referred to as “District Representative”)
REDACTED (hereinafater referred to as “Certified Special Education Teacher 1”)
REDACTED (hereinafter referred to as “Certified Special Education Teacher 2”)
ON SEPTEMBER 24, 2021
For the Student:
The Parents’ Attorney The Mother
For the District
The District Representative
ON OCTOBER 1, 2021
For the Student:
The Parent’s Attorney The Mother
For the District
The District Representative
REDACTED (hereinafter referred to as “Unit Coordinator-Proposed School 1”)
ON NOVEMBER 1, 2021
For the Student:
The Parent’s Attorney
For the District
The District Representative
INTRODUCTION
This matter concerns the Student, a REDACTED-year-old school student 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 is not in dispute.
PROCEDURAL HISTORY
This matter comes before me on the Parents’ due process complaint, filed on or about August 28, 2020, concerning the 2019-2020 and 2020-2021 school years. (P.-A.) Hearing Officer Frank Bruno was appointed on April 9, 2021. A hearing was held on August 9, 2021; September 24, 2021; October 1, 2021; and November 1, 2021.
During the hearing, the New York City Department of Education (the “District”) entered into evidence exhibits 1-8, and the Parents entered into evidence exhibits A-LL.[1] The District presented two witnesses on August 9, 2021: the certified special education teacher who participated in the April 8, 2019 IEP meeting, and the certified special education teacher who participated in the April 30, 2020 IEP meeting. The Student’s mother testified via affidavit and was cross-examined by the District on August 9, 2021. The Principal of the Attending School also testified via affidavit and was cross-examined on August 9, 2021. A certified special education teacher who served as a unit coordinator at Proposed School 1 in 2019-2020 testified for the District on October 1, 2021, and was cross-examined by the Parents’ attorney. (Tr. 162-177) The Parents submitted a closing brief on October 29, 2021, and the District presented an oral closing argument on November 1, 2021. (Tr. 182)
On March 22, 2022, Hearing Officer Bruno resigned and his appointment was rescinded. I was appointed to this matter on April 8, 2022. On April 12, 2022, and April 13, 2022, I held a status conference in which the Parents’ attorney and representatives from the District participated. (IHO-I.) During the status conference, I noted that during my review of the record, I discovered that one of the Parents’ exhibits was missing several pages. The District did not object to the Parents’ attorney providing me with the missing pages, which the Parents’ attorney did on April 13, 2022. (IHO-I.; P.-Y.2) On that same date, I issued a status conference summary and order, as well as several orders extending the compliance date in this matter. (IHO-I.) The record in this matter closed on May 9, 2022.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered, 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 Art 89 § 4404 et seq., and its implementing regulations, 8 NYCRR Part 200.
BACKGROUND
The Student is an REDACTED-year-old child with multiple disabilities, including REDACTED Syndrome and REDACTED Syndrome. The Student attended the Attending School, a small, private school serving children on the Autism spectrum or who exhibit similar symptoms, during the 2019-2020 and 2020-2021 school years.
ISSUES
The claims in the Parents’ due process complaint relate to the District’s proposed special education program and placement for the Student for the 2019-2020 and 2020-2021 school years. The Parents asserted seventeen separate bases to support their argument that the District denied the Student a free and appropriate public education (“FAPE”) during the 2019-2020 school year, and nineteen separate bases supporting their argument that the District denied the Student a FAPE during the 2020-2021 school year. Some of the bases provided by the Parents in support of their arguments are procedural and some are substantive.
The Parents seek tuition reimbursement and direct tuition funding for the cost of the Student’s placement at the Attending School. The Parents are also seeking compensatory educational services and authorizations to allow the Parents to have the Student evaluated using evaluators of their choosing.
In addition, the Parents seek relief regarding to the Student’s transportation to and from the Attending School, and any interest, late fees, loans, or any other expenses they were forced to incur because of the District’s failure to provide the Student with a FAPE. The Parents also included a notice of claim for attorneys’ fees and related costs in their due process complaint.
The District argued during its opening statement that it created a FAPE for the Student regarding both the 2019-2020 and 2020-2021 school years, citing evidence that will be discussed in detail below. As a result, the District contended that the Parents’ claims for tuition reimbursement or direct payment to the Attending School for the 2019-2020 and 2020-2021 school years, in addition to any other requests for relief, should be denied. (Tr. 25.)
FINDINGS OF FACT
After considering all the evidence, as well as the closing arguments of both parties, my findings of fact are as follows:
Early in his life, the Student was diagnosed with REDACTED Syndrome and REDACTED Syndrome. (P.-Y.; LL.) REDACTED Syndrome is a rare genetic condition that usually causes cognitive impairment, delayed development, and feeding difficulties, among other symptoms. (P.-M.; Y.; LL.) REDACTED-REDACTED Syndrome is a congenital brain malformation that causes slow motor development, among other symptoms. (P.-N.; LL.) The Student is frail, has severe cognitive delays, and poor safety awareness. (P.-Y.; LL.) His verbal abilities are extremely limited, and he communicates mostly through an alternative augmentative communication device. (P.-LL.)
In September 2013, the Student was placed in a full-time special education classroom in a private preschool. (P.-Z.; LL.) He was initially placed in a classroom with a 9:1:2 staff to child ratio, and he had significant difficulties functioning in a group of that size. (P.-Z. at p. 3) The Student was later moved to a classroom with six children and four adults that used the Developmental, Individual Differences, Relationship-Based Model (“DIR/Floortime”) method to help him interact with other people. The educators who worked with the Student reported that the smaller class size and use of DIR/Floortime were a positive change for the Student, and they recommended that in the future, the Student should be placed in a 1:1 setting and continue using DIR/Floortime. (P.-Z. at p. 2)
In February 2016, while the Student was still attending the special education preschool program, the District conducted a psychoeducational reevaluation of the Student. (P.-Y2.) The evaluator found that the Student’s “overall intellectual capacity is in the extremely low range,” and also found that the Student’s “speech and language skills are seriously delayed.” (P.-Y2.) At the time of the evaluation, the Student was not yet toilet trained, and the Student was not able to walk up and down stairs with both feet. (Id.) The Student’s mother (“Mother”) participated in the evaluation and said that the Student was making progress, which the Mother attributed to the Student’s school program. (Id.)
In September 2016, the Student’s parents placed the Student at the Attending School. (P.-DD.; LL.) The Attending School is a small, private, full-time special education school that had 40 children enrolled during the 2019-2020 school year and 44 children enrolled during the 2020-21 school year. (P.-KK.) Most of the students enrolled at the school are on the autism spectrum, but the school also serves students who are not on the autism spectrum but have similar developmental challenges and educational needs. (P.-P.; KK.) The environment at the Attending School is highly structured, and each class has at least a 1:1 ratio of students to teachers, instructors, and therapists. (P.-DD; KK ¶ 40.) The Attending School uses Applied Behavioral Analysis (“ABA”) therapy to address behavior challenges and the DIR/Floortime method to promote social interaction. (P-P. pp. 4-6; LL; KK)
The Student attended the Attending School continuously from his placement there in 2016 until April 2019. (P.-KK. ¶ 58) The District paid for the Student’s tuition at the Attending School for the 2016-17 and 2017-2018 school years pursuant to settlement agreements with the Parents. (P.-LL. ¶ 21) The Student showed gradual improvement during this time, but his teachers continued to report that he needed 1:1 instruction. (P.-BB. p. 13)
On April 8, 2019, the CSE met to develop the Student’s IEP for the 2019-2020 school year. (Tr. 31; D.-1) The CSE consisted of: (1) the Student’s Mother; (2) a certified special education teacher (“Certified Special Education Teacher 1”); (3) a District psychologist who also functioned as the district representative; (4) the Student’s classroom teacher from the Attending School, and (5) and the Principal of the Attending School (the “Principal”). (D.-1; IHO-II.) The Student’s classroom teacher and the Principal both participated in the meeting by telephone. The Student’s Mother, Certified Special Education Teacher 1, and the District’s representative were present in person. (Tr. 30-32.)
The main source of information that the CSE relied on during the meeting was a set of progress reports from the Attending School, which contained a description of the Student’s academic and social functioning levels and goals, as well as a behavior plan. (D.-4; 5; Tr. 33-34.) The 2019-2020 IEP describes the Student as delayed “across all global areas including receptive and expressive language, academic tasks as well as social emotional development.” (D.-1. p. 1) The IEP also discusses the Student’s academic programs, reporting that throughout the day, the Student worked on “labeling items, requesting for desired items, motor imitation, color identification, and reading skills.” (Id. at p. 2) The Student received speech therapy three times a week for forty-five minutes, twice a week individually and once a week in a group of peers and additional staff members; occupational therapy twice a week for forty-five minutes on a one-to-one basis; and physical therapy three times a week on a one-to-one basis. (D.-4.) The Student often exhibited behavioral problems that the Attending School’s staff addressed by ignoring the behaviors and redirecting the Student and using a token economy system. (D.-1; 4.; 5.)
In general, the 2019-2020 IEP showed a significant focus on the Student’s activities of daily living skills. (D.-1.) Many of the measurable annual goals focused on activities of daily living, such as teaching the Student to remove the Student’s coat, notebook, and lunch box from the Student’s bag in the morning; teaching the Student to brush the Student’s teeth and wash the Student’s hands; teaching the Student to initiate the need for the bathroom; and teaching the Student to set up for meals. (D.-1.) The IEP also described the occupational therapy services provided by the Attending School, during which the Student worked on “improving gross and fine motor coordination, visual perceptual skills, sensory processing, and self-care skills” through exercises like carrying weighted objects for 5-8 feet, wheelbarrow walking, finger dexterity activities, and beading. (D.-1 p. 4) In physical therapy, the Student participated in strengthening exercises and walked on a treadmill, but the Student had low muscle tone, weakness, and poor endurance and “require[d] supervision on stairs and outside at all times.” (D.-1 p. 4)
The IEP also references an assistive technology evaluation that was conducted by the District in January 2017, but that evaluation was not included in the IEP itself, and it is unclear from the record whether the Parents ever received a copy of the evaluation. (D.-1.; Tr. 51)
When choosing the Student’s program recommendation, the CSE considered and rejected a staff ratio of 8:1:1 (i.e., 8 children, 1 teacher, and 1 assistant) as insufficiently intensive, but did not consider a 1:1 program. (D.-1. p. 36) The CSE ultimately recommended that the Student be placed in a 6:1:1 District 75 program, with adapted physical education 5 times per week, as well as related services, namely occupational therapy 3 times a week for 45 minutes; physical therapy 3 times a week for 45 minutes; and speech language therapy 3 times a week for 45 minutes. (Tr. 32-33, 34; D.-1. p. 29) The CSE also recommended monthly counseling and training for the Parents and door-to-door bus service using a minibus and a car service for the Student. (P.-1. p. 29; Tr. 36-37)
During the meeting, the Mother and the representatives from the Attending School expressed concern about the 6:1:1 recommendation. The Mother and the representatives from the Attending School stated that the Student needed 1:1 instruction. (D.-3.) The progress reports provided by the Attending School also state that the goals and objectives contained therein “have been developed for implementation in a 1:1 setting.” (D.-4. p. 3) The Principal of the Attending School stressed the need for the student to attend a “small school in which he would be exposed to a minimal number of other children so he would not be sensorially overwhelmed,” and the District responded that a class of six was the smallest available class in the District’s system for a student like the Student. (P.-KK. ¶ 88) The Principal of the Attending School also expressed concern about the amount of ABA, DIR/Floortime, and mental health services the Student would receive in a District 75 6:1:1 program, and the District-employed CSE members replied that the Student would not receive DIR/Floortime therapy because the District did not have a school using that methodology in the District 75 program. (P.-KK. ¶ 87) The District also said that particular methodologies could not be specified in an IEP. (P.-KK. ¶ 87)
On May 14, 2019, the Parents received a Prior Written Notice (“PWN”) from the District advising them that the Student would be placed at Proposed School 1 for the 2019-2020 school year. (D.-2.) The PWN further advised that the student would be placed in a special class with a staffing ratio of 6:1:1 and would receive adapted physical education. The PWN also stated that the Student would receive individual occupational therapy, physical therapy, and speech language therapy, on an individual basis, and that the parents would receive counseling and training. (D.-2.) The PWN also stated that the Student would use a dynamic display speech generating device. The only evaluation conducted by the District that was used in the choice of Proposed School 1 was the 2017 Assistive Technology evaluation, and the only other option considered by the District beside a 6:1:1 placement was a special class in an 8:1:1 specialized school. (D.-2.)
On June 11, 2019, the Parents sent a letter to the District expressing concern about the Student’s assignment to a 6:1:1 program at Proposed School 1. (P.-C.) In their letter, the Parents posed a series of detailed questions regarding the Student’s placement at the school, including but not limited to logistical questions about the school building, as well as questions regarding how Proposed School 1 would provide the Student with all of his related services in an integrated manner. (P.-C.) The Parents also expressed concern about the District’s refusal to even consider a school with a 1:1 ratio. (P.-C. p. 2). Nevertheless, the Parents wrote that they wanted to “seriously explore” placing the Student at Proposed School 1 and asked for answers to their questions and assistance with scheduling an appointment to visit the school. (P.-C. p. 3)
The Parents did not receive any response to their letter dated June 11, 2019. (P.-LL. ¶ 33)
On July 13, 2019, the Mother and the Principal of the Attending School visited Proposed School 1. (P.-LL. p. 34; KK ¶ 91) A unit coordinator at Proposed School 1 gave them a tour, and informed them that there were 125 students in the program the Student would attend. (P.-KK; LL.) Proposed School 1’s classrooms were located on the fifth floor of the building, which lacked elevators. (P.-KK.; LL.) The cafeteria and the gym were both located on the first floor, and the Student would have had to go up and down five flights of stairs to eat lunch or go to the gym. (P.-KK.; LL.) The unit coordinator told the Mother and the Principal that the school provided “some” related services, but they were usually provided as push-ins into the classrooms, and if students met individually with providers, they would do so in a room with other providers and students. (P.-KK ¶ 92) Proposed School 1 had no sensory gym, only a standard gym. (P.-KK.; LL.) Another unit coordinator from Proposed School 1 (“Unit Coordinator Proposed School 1”) during 2019-2020 testified at the hearing and stated that Proposed School 1 does not offer adaptive physical education. (Tr. 165; P.-KK ¶ 91.)
On August 16, 2019, the Parents sent the District a letter alleging that the District failed to provide the Student with a FAPE for the 2019-2020 school year and stating that the Parents would place the Student at the Attending School in September unless the District acknowledged and addressed the Parents’ concerns with the Student’s proposed placement. (P.-D.)
The Student began the 2019-2020 school year at the Attending School on or about September 3, 2019. (P.-V.) Tuition at the Attending School for the 2019-2020 school year was $107,000, which the Parents were unable to pay and have not paid. (P.-O.; V.; LL. at ¶ 47).
On April 30, 2020, the CSE met to develop the Student’s IEP for the 2020-2021 school year. (Tr. 69; D.-6.) The CSE consisted of: (1) the Mother; (2) a certified special education teacher (“Certified Special Education Teacher 2”); (3) a District psychologist who also functioned as the district representative; (4) the Student’s classroom teacher from the Attending School; and (5) the Principal of the Attending School. (P.-KK. ¶ 96-97; Tr. 68-69) The meeting was conducted remotely because of the COVID-19 pandemic. (P.-KK ¶ 96; Tr. 68-69)
The CSE made the same program recommendation for the Student that it had made for the 2019-2020 school year: a 6:1:1 special education program in a District 75 school. (D.-6.; Tr. 71) The IEP states that the CSE considered 8:1:1 and 12:1:1 placements as well, but rejected them as insufficiently supportive. (D.-6. p. 31) The CSE also changed the Student’s classification from “multiple disabilities” to “Autism” and reduced the recommendation for adaptive physical education from 5 times per week to 3 times per week. (D.-6. pp. 1, 24)
The program recommendation was based on the “comprehensive teacher report from the school in addition to a behavior report.” (Tr. 71) The 2020-2021 IEP noted “a lot of progress” with the Student, and also reported that the Mother “has seen growth in maturity and have [sic] seen an increase in attention span and interest in doing new activities.” (D.-6. p. 2) The description of the Student’s learning characteristics, social development, physical development, and managerial needs is less thorough than the description contained in the earlier IEP, although the section discussing the Student’s physical development contains a detailed discussion of the Student’s “improvement with balance and safety awareness” and his improvement in negotiating stairs. (D.-6.) The annual goals contained in the IEP show progress from the prior year, in that there is less focus on activities of daily living and more focus on independent play, peer social engagement, and communication, both with and without the Student’s communication device. (D.-6.)
The District did not conduct any psychological, psychoeducational, educational, or neuropsychological testing of the Student before the CSE meeting to determine whether he was prepared to move to a 6:1:1 setting, or to determine whether he should be reclassified as Autistic rather than a child with Multiple Disabilities. (Tr. 76-77)
On May 29, 2020, the Parents received a letter from the District assigning the Student to Proposed School 2. (D.-7.)
On June 16, 2020, the Parents sent a letter to the District stating that they believed the Student’s April 30, 2020, IEP was substantially inappropriate and the school placement was inadequate. (P.-E.) The Parents stated that unless the District addressed their concerns before the beginning of the school year, they would place the Student at the Attending School.
Because of the COVID-19 pandemic, Proposed School 2 was not giving tours to prospective families. (P.-LL. ¶ 65) The Mother called Proposed School 2 to learn more about it, but she received no response to her phone calls. (Tr. 133) On August 17, 2020, the Parents sent the District another letter stating, again, that the April 30, 2020, IEP was inadequate and denied the Student a FAPE, and reiterating their plan to enroll the Student at the Attending School for the 2020-2021 school year if the District did not address their concerns and offer the Student a FAPE. (P.-G.; LL. at ¶ 69) The District acknowledged receipt of the August 17, 2020, letter in writing, and informed the Parents that their unilateral placement claim was not appropriate for settlement. (P.-H.)
The Student began the 2020-2021 school year at the Attending School on or about September 9, 2020. (P.-S.) The Student’s tuition at the Attending School for 2020-2021 was $112,000. (P.-S.; LL.) The Parents have not made any payments to the school for the Student’s 2020-2021 tuition and cannot afford to pay it. (P.-LL. ¶¶ 84-85)
CONCLUSIONS OF LAW AND ANALYSIS
The IDEA establishes a “substantive right to a ‘free appropriate public education’” for children with disabilities. Endrew F. v. Douglas Co. School Dist, 137 S. Ct. 988, 993 (2017) (quoting Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982)).
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 CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). “Not every procedural error will render an IEP legally inadequate.” M.H. v. New York City Dep’t of Educ., 685 F. 3d 217, 245 (2d Cir. 2012) (citation omitted). If a procedural violation is 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 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).
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. 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. School districts are not required to “maximize” the potential of students with disabilities, 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.’” Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.
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. N.Y. Educ. Law § 4404(1)(c) (2002). The standard required is a preponderance of the evidence. 20 U.S.C. 1415(i)(2)(C)(iii); see also Walczak, 142 F.3d 119. This case involves a unilateral placement and tuition funding/reimbursement claim, but there was no dispute regarding the burden in this matter.
Under the three-prong test established by the Supreme Court in Sch. Comm. of Burlington, Mass, v. Dep’t of Educ. of Mass, 471 U.S. 359 (1985) and Florence County. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), parents who unilaterally place their children in private school are entitled to reimbursement from the District if the services offered by the District were inadequate or inappropriate, the services selected by the parent(s) were appropriate, and equitable considerations support the parent’s claim. See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert. denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 U.S. LEXIS 11520 (Oct. 15, 2007). The first prong of the Burlington-Carter test encompasses whether the student’s IEP provided a FAPE. Brock v. Dutton, 2015 U.S. Dist. LEXIS 44254, *14 (S.D.N.Y. March 31, 2015).
The Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007) (quoting Frank G. v. Bd. of Educ., 459 F.3d at 364-65). The private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.” Frank G. v. Bd. of Educ., 459 F.3d at 364.
Burlington-Carter Test Prong One: Procedural Violations
At the time of the hearing conducted in this matter, the last substantive evaluation conducted of the Student by the District was performed in February 2016.[2] (P.-Y.; Tr. 76-77) The fact that the District incorporated progress reports from the Attending School into the 2019-2020 and 2020-2021 IEP documents does not absolve the District of its responsibility under the IDEA to reevaluate the student every three years unless the parents and the District agree that such an evaluation is unnecessary. See 20 U.S.C. § 1414(a)(2)(B)(ii); see also 34 CFR § 300.303-300.311; 8 NYCRR § 200.4(b)(4) (in New York, any agreement to forego the triennial reevaluation must be documented in writing). Moreover, federal regulations also require “that a child with a disability must be evaluated before there is any significant change in the child’s placement.” Application of a Student with a Disability, Appeal No. 94-002 (Feb. 28, 1994) (citing 34 C.F.R. § 104.35(a)).
Although “not every procedural error will render an IEP legally inadequate,” M.H., 685 F.3d at 245, the District’s failure to conduct a triennial reevaluation produced two IEPs that did not contain sufficient evaluative data to support the District’s program recommendations. In this case, the CSE proposed to change the Student’s program from a 1:1 classroom in a small school to a 6:1:1 classroom in a larger school based entirely on evaluative information that was generated in support of the Student’s continuation in a 1:1 program. The District provided no personalized evaluative data from its personnel or any other source that supported such a change in the Student’s program. I find that the District’s failure to re-evaluate the student was a substantial procedural inadequacy that denied the student a FAPE for both the 2019-2020 and 2020-2021 school years.
The District also violated the Parents’ procedural rights by failing to respond to the Mother’s inquiries about Proposed School 2 before the commencement of the 2020-2021 school year. Given the COVID-19 pandemic, it is understandable that the Parents were unable to tour Proposed School 2 in person between April 20, 2020, and the beginning of the 2020-2021 school year. However, the United States Department of Education: Office of Special Education and Rehabilitative Services (“OSEP”) has made it very clear that “regardless of the COVID-19 pandemic, or the mode of instruction, children with disabilities are entitled to FAPE,” Return to School Roadmap: Development and Implementation of Individualized Education Programs in the Least Restrictive Environment under the Individuals with Disabilities Education Act, OSEP QA 21-06 (September 30, 2021), and it was incumbent upon the District to provide the Parents with some information about the Student’s placement. See C.U. & N.U. v. N.Y. City Dep’t of Educ., 23 F. Supp. 3d 210, 227 (S.D.N.Y. 2014) (recognizing “parents have a procedural right to evaluate the school assignment, i.e., the right to acquire relevant and timely information as to the proposed school”).
In this case, the District provided the Parents with no information about Proposed School 2, and when the Mother called the school, the school did not respond to her phone calls. As an initial matter, someone at Proposed School 2 obviously should have responded to the Mother’s phone calls. Moreover, the District should have found a way to provide the Parents with some information about Proposed School 2, given that an in-person tour was not possible. As OSEP stated in regard to providing FAPE during the COVID pandemic, “federal disability law allows for flexibility in determining how to meet the individual needs of students with disabilities.” Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities, OSEP (March 21, 2020). The District could have provided the Parents with a virtual tour of Proposed School 2, or showed the Parents photos of the school’s facilities over the internet, or facilitated a phone call between the Parents and a teacher or unit coordinator or the principal. Instead, the District did nothing. As a result of the District’s failure to pursue alternative ways to inform the Parents about Proposed School 2, the District’s 2020-2021 placement denied the Student a FAPE.
Burlington-Carter Test Prong One: Substantive Violations The Supreme Court has found a reviewing court may expect school district staff “to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S.Ct. 988, 1002 (2017). As set forth in detail below, the District offered no cogent and responsive explanation for its decision to recommend a 6:1:1 program for the Student during the 2019-2020 and 2020-2021 school years when the underlying evaluative data from the Attending School recommended a 1:1 program. Therefore, the IEPs were not reasonably calculated to allow the Student to make individualized progress and denied the Student a FAPE. The District also failed to recommend an appropriate placement for the Student during the 2019-2020 school year.
The DOE Denied the Student a FAPE for the 2019-2020 School Year by Failing to Offer the Student an IEP Reasonably Calculated to Confer Educational Benefit
At the time of the 2019 CSE meeting, the Student had been enrolled in a 1:1 program since 2016. The District proposed a change to a 6:1:1 program without offering any personalized explanation for why such a change would be appropriate. Certified Special Education Teacher 1, who had never met the Student, testified that the CSE team’s recommendation that the student would be able to make progress in a District 75 6:1:1 class was based on what was discussed at the CSE meeting and the fact that the Student was “functioning on a – as a four-or-five year old, and the child, I believe, was eight or ten,” which meant the Student necessarily fit the criteria for a District 75 program. (Tr. 39)
The IEP document contains nuance and detail regarding the four factors that the CSE team was required to consider, namely, the Student’s: (1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs. See M.H. v. NYC Dep’t of Educ., 685 F. 3d 217, 224 (2d Cir. 2012). The IEP also contains personalized annual goals for the student. But the information in the IEP was copied verbatim from the progress reports provided by the Attending School, which stated repeatedly that the Student needed services provided on a 1:1 basis.
The very first paragraph of the Attending School’s progress report states that the Student “requires direct, individualized one-to-one instruction in a highly structured environment in order to make progress.” (D.-4.) The sections of the progress report addressing the Student’s academic programs, activities of daily living skills, speech and language therapy, occupational therapy, and physical therapy all state that the Student’s goals have been developed for implementation in a 1:1 setting. (D.-4.)
In addition, the IEP and the minutes from the CSE meeting are clear that the school and the Parent both advocated for a 1:1 program at the meeting. (D.-1. p. 2 [“The school and the parent feel that the 1:1 learning environment has helped his development and progress this year.”]; D.-3., p.2 [Handwritten notes state that parent and school agree the Student needs “one-to-one instruction at all times. Cannot be left alone.”]) The Principal and the Parent also testified at length regarding their advocacy for a 1:1 program for the Student’s 2019-2020 school year during the meeting. The Principal testified:
... I advised the DOE-employed members of the April 4, 2019 CSE team that an IEP that did not call for the provision of 1:1 ABA, DIR, and Music Therapy to [The Student] throughout [the Student’s] school day would not be appropriate and would not allow [the Student] to learn. [The Student’s] parents and I emphasized that [the Student] needed a small school in which [the Student] would be exposed to a minimal number of other children so [the Student] would not be sensorially overwhelmed.
(P.-KK. ¶ 87)
Similarly, the Mother testified that during the meeting, she asked the District to consider providing the Student with a one-to-one instructor or paraprofessional and placing the Student in a small school with a small school building. (P.-LL ¶ 26.)
The sole justification provided by the District for the 6:1:1 recommendation, besides the Attending School’s progress reports that were all predicated on 1:1 placement, was Certified Special Education Teacher 1’s general familiarity with District 75 6:1:1 programs.
“A school district fulfills its substantive obligations under the IDEA if it provides an IEP that is ‘likely to produce progress, not regression,’ and if the IEP affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra, 427 F.3d 186, quoting Walczak, 142 F.3d at 130 (citations omitted). All of the individualized evidence provided to the CSE for the Student’s April 8, 2019 IEP meeting showed that the Student needed a 1:1 program to make educational progress, but the CSE team disregarded that evidence. “When the reports and evaluative materials present at the CSE meeting yield a clear consensus, an IEP formulated for the child that fails to provide services consistent with that consensus is not ‘reasonably calculated to enable the child to receive educational benefits.’ A.M. v. N.Y. City Dep’t of Educ., 845 F.3d 523 (2d Cir. 2017) (quoting Rowley, 458 U.S. at 207); see also C.F., 746 F.3d at 81 (holding that an IEP’s failure to provide a 1:1 classroom when testimony and reports indicated a 1:1 placement was necessary constituted a denial of a FAPE).
Accordingly, the April 8, 2019, IEP was not reasonably calculated to confer educational benefit on the Student in light of the Student’s particular circumstances, and the Student was denied a FAPE for the 2019-2020 school year.
The District Also Denied the Student A FAPE by Recommending an Inappropriate Placement for the 2019-2020 School Year The District’s ultimate placement recommendation for the Student in Proposed School 1 also constituted a denial of a FAPE. First, although the 2019-2020 IEP recommended that the Student receive 5 sessions of adaptive physical education a week, the Unit Coordinator-Proposed School 1 testified that Proposed School 1 does not even offer adaptive physical education. (Tr. 165)
Second, Proposed School 1 is on the fifth floor of a building that lacks an elevator. (P.-KK. at ¶ 91) In the Student’s 2019-2020 progress reports submitted by the Attending School, the Student’s physical therapist described the student as having low muscle tone and presenting “with weakness and poor endurance.” (D.-4. p. 12) The Student’s physical therapist specifically discussed the Student’s ability to use stairs, reporting that the Student:
... can ascend one flight of stairs alternating feet for each step with handrail support 70% of the time, but he needs contact guard/close supervision as he often loses his balance. He often needs cues to alternate his feet and walk with an upright posture. When descending, he has a harder time alternating his feet, but he often alternates with contact guard and some cues behind his knees for 4 steps.
(D.-4. p. 12)
At Proposed School 1, the Student would need to go up and down five flights of stairs multiple times each day, because although the proposed classroom was on the fifth floor, the gym and cafeteria were on the first floor. (P.-KK. ¶ 91) The Principal of the Attending School testified “[t]his would be extremely difficult and exhausting for [the Student]; he has poor stamina, mobility challenges, safety concerns, and tires easily.” (Id. at ¶ 92) The Student’s Mother also felt Proposed School 1 would be inappropriate for the Student because of the lack of an elevator. (P.-LL. ¶ 34)
In light of the IEP’s requirement for adaptive physical education, which Placement School 1 unequivocally could not provide, as well as Placement School 1’s location on the fifth floor of a building without an elevator, the District’s proposed placement for the Student’s 2019-2020 school year was inappropriate and denied him a FAPE.
The District Denied the Student a FAPE for the 2020-2021 School Year by Failing to Offer the Student an IEP Reasonably Calculated to Confer Educational Benefit
I also find that the District failed to offer the Student an IEP reasonably calculated to confer educational benefit for the 2020-2021 school year. When the CSE convened to draft the Student’s 2020-2021 IEP on April 30, 2020, the District once again recommended a 6:1:1 program in a District 75 school. (D.-6.; 7.) The certified special education teacher (“Certified Special Education Teacher 2”) who participated in the 2020-2021 CSE meeting acknowledged that the Parent and participants from the Attending School disagreed with the 6:1:1 recommendation, testifying, “They recommended a more restrictive environment of a private school, specifically being [the Attending School]. They felt that the specialized school in a 6:1:1 would not be able to support [the Student’s] needs.” (Tr. 74)
Yet again, the District’s evidence regarding the basis for its contrary recommendation was insufficient. Certified Special Education Teacher 2, who had not met the student, testified that the CSE’s recommendation for the 6:1:1 program was an “appropriate recommendation” based on: “The school’s report and based on the discussions that were conducted at the meeting in addition to previous documents that were held at other meetings, and we felt that [the Student] required a very supportive environment and felt that the 6:1:1, taking into account the teacher reports and everything, was an appropriate recommendation.” (Tr. 74-75, 84)
The District did not introduce the April 20, 2020, reports referenced in the PWN into evidence, and did not provide minutes of the April 30, 2020, CSE meeting, but given the testimony of Certified Special Education Teacher 2, it is clear that the language contained in the IEP is drawn from the Attending School’s reports. (D.-7. p. 2) The IEP notes the Student’s general progress, and states that he is “able to sustain attention for up to 30 minutes in 1:1 academic sessions.” (D. 5 at p. 2 ) Elsewhere in the IEP, the team notes that the Student is “very small for his age and does well in a 1:1 setting.” (D. 5. at p. 3)
During the meeting, the Principal told the CSE team that the Student needed “one-to-one support throughout his entire school day across various settings for his safety and so that he could make meaningful progress.” (P.-KK. ¶ 97) The Mother testified that during the April 30, 2020 meeting, she said that the Student continued to “need one-to-one instruction for his safety and to address his other learning issues.” (P.-LL ¶ 56)
The Mother testified that the District-employed members of the 2020-2021 CSE team said that a 6:1:1 placement was the “smallest available class that was available within the [District]’s system and that the team could not consider smaller alternatives because there were none.” (P.-LL. ¶ 59;) Similarly, the Principal testified that the District’s team members said “a class of six students was the smallest class they had and that they could not consider smaller alternatives.” (P.-KK. ¶ 98)
Given the references to 1:1 support in the IEP, and the Principal and the Mother’s advocacy for a 1:1 program, as well as the absence of any countervailing data or evaluations from the District showing that the Student was prepared for a 6:1:1 placement, I conclude that the 2020-2021 IEP was not reasonably calculated to create an educational benefit for the Student and denied him a FAPE. See R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 194 (2d Cir. 2012).[3]
Burlington-Carter Test Prong Two: The Appropriateness of the Parents’ Unilateral Placement
A unilateral 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 relevant standard to apply is whether “the unilateral private placement... provides educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo, 489 F.3d at 115 (quotations omitted). No single factor is dispositive in this analysis. Id. The private placement does not necessarily need to provide certified special education teachers or every special service that could assist in maximizing the Student’s potential. Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 2020 U.S. Dist. LEXIS 16007 (S.D.N.Y. 2020), aff’d 2020 U.S. App. LEXIS 39739 (2d Cir. 2020) (citation omitted). Moreover, parental placements are not subject to the same mainstreaming requirements as a school district placement. Frank G. v. Bd. of Educ., 459 F. 3d at 364.
In this case, the Parents submitted ample documentary and testimonial evidence establishing that the teachers and providers at the Attending School are sufficiently qualified, certified, and trained to meet the Student’s unique needs. (P.-P., Q, AA-LL) The Principal of the Attending School testified that the Student’s classroom teacher for 2019-2020 and 2021-2021 had degrees in general and special education, as well as a special education license. (Tr. 113) The school requires that its classroom teachers have at least master’s of science degrees in special education. (P.-KK. at ¶ 41) The Attending School also utilizes one-to-one assistants to support the teachers and provide sensory breaks for the students. (P.-KK. at ¶ 42-44) The Student received speech therapy, occupational therapy, and physical therapy at the Attending School, where he had access to two sensory gyms (Tr. at 121; P.-KK. ¶ 93) All of his instruction was provided on a 1:1 basis. (P.-KK. ¶¶ 65-66.)
The Parents’ evidence also demonstrated that the Attending School enabled the Student to make progress during the 2019-2020 and 2020-2021 school year. The Principal of the Attending School testified in detail about the progress the Student made in literacy, math, and expressive language skills over the relevant school years. (Tr. 121; P.-KK.) The Principal described the Student’s reading and math skills as on the pre-kindergarten level at the beginning of the 2019-2020 school year. By the end of the year, although the Student’s math skills had not improved, the Student’s reading skills had improved to just starting kindergarten level. At the beginning of the 2020-21 school year, the Student’s reading skills were at a kindergarten level, but the Student advanced by the end of the year, and in math, the Student “made nice progress” and entered the kindergarten level. (Tr. 121-122) The Principal also discussed the Student’s progress more generally, noting that in 2019-2020, the Attending School focused on the Student’s ready to learn skills such as “being able to sit, to attend, learning to learn,” whereas in 2020-2021, “Now that we got [the Student] to a point where we were learning... [the Student] needed a lot of structure and repetition, structure and repetition.” (Tr. 121-122)
The Student’s Mother also testified regarding the progress the Student made at the Attending School. She testified that during 2019-2020 school year, the Attending School worked to get the Student “a little more settled,” and then in 2020-2021 the Student started really using the Student’s assistive technology device, learned the alphabet, and learned the Student’s colors. The Mother found it “easier to interact” with the Student in 2020-2021, and thought the Student was making progress with “real learning.” (Tr. 136)
The testimony of the Parents’ witnesses and the documentary evidence submitted by the Parents establishes that the Attending School is appropriate and has provided the Student with educational instruction that is specifically designed to meet the Student’s unique educational needs, supported by services that are necessary to permit the Student to benefit from that instruction, for both the 2019-2020 and 2020-2021 school years. The Parents have, therefore, met the second criterion of the three-prong Burlington/Carter test for tuition reimbursement.
Burlington-Carter Test Prong Three: Equitable Factors
Equitable factors are relevant to fashioning relief under the IDEA. Burlington, 471 U.S. at 374; 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) (citations omitted); see also 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”). Reimbursement of private school tuition 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. 20 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 U.S. Dist. LEXIS 11354 (S.D.N.Y. Feb. 4, 2008); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 (S.D.N.Y. 2005).
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 ten business days before such removal, “that they were rejecting the placement proposed by the public agency to provide [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” 20 U.S.C. § 1412(a)(10)(C)(iii)(I); see 34 CFR § 300.148(d)(1). This statutory requirement “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).
In this case, it is clear from the record that for both the 2019-2020 and 2020-2021 school years, the Parents adhered to the statutory requirement by notifying the District that they were rejecting the District’s placement recommendation, stating their concerns, and indicating their intent to enroll the Student in private school at public expense. 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 CFR § 300.148(d)(1).
Regarding the 2019-2020 school year, the hearing record reflects that the Parents initially expressed concerns about the proposed placement of the Student at Proposed School 1 by letter dated June 11, 2019. (P.- C.) When they received no response from the District, they notified the District by letter dated August 16, 2019, of their intention to place the Student at the Attending School and seek public funding for the placement for the 2019-2020 school year. (P.- D.) The Student then enrolled in the Attending School on or about September 3, 2019. (P.-V.)
I find that by their letters dated June 11, 2019, and September 3, 2019, the Parents offered sufficient information to put the District on notice about the Parents’ concern regarding the lack of an appropriate school program and placement offer from the District and their intention to place the Student at the Attending School for the 2019-2020 school year, giving the District an opportunity to cure any deficiencies, which is the intent underlying the 10-day notice requirement.
Regarding the 2020-2021 school year, on June 16, 2020, the Parents submitted a letter to the District describing their concerns with the 2020-2021 IEP and stating that unless their concerns were addressed, they would place the student at the Attending School for the 2020-2021 school year and seek tuition reimbursement. (P.-E.) On August 17, 2020, the Parents submitted another letter to the District reiterating their intention to place the Student at the Attending School and seek funding for the placement for the 2020-2021 school year because the 2020-2021 IEP denied the Student a FAPE. The District acknowledged receipt of the August 17, 2020, letter in writing, and informed the Parents that their unilateral placement claim was not appropriate for settlement. (P.-H.) The Student then enrolled at the Attending School on or about September 9, 2020. (P.-S.)
I find that the Parents’ letters dated June 16, 2020, and August 17, 2020, provided the District with sufficient notice of their concerns about the Student’s placement and their intent to enroll the Student at the Attending School to give the District the opportunity to correct any deficiencies.
Because the Parents provided the District with timely, sufficient notice of their concerns with the District’s proposed placements for the Student in both 2019-2020 and 2020-2021, the Parents have met the third criterion of the three Burlington/Carter criteria for tuition funding. Having met all three criteria of the Burlington/Carter test, I find that the Parents are entitled to funding for the cost of the Student’s placement at the Attending School for the 2019-2020 and 2020-2021 school years.
AMOUNTS CLAIMED
The Parents submitted affidavits regarding tuition at the Attending School from an executive associate at the Attending School, along with the Student’s enrollment agreements, for both the 2019-2020 and 2020-2021 school years. (P.-S.; V)
The executive assistant confirmed under oath that the amount payable to the Attending School for the Student’s attendance there during the 2019-2020 school year was $107,000, and the amount payable to the Attending School for the Student’s attendance there during the 2020-2021 school year was $112,000.[4] As of the dates of the affidavits, the Parents had paid none of the Student’s tuition for either the 2019-2020 or 2020-2021 school years.
While the amount of tuition at the Attending School is not insignificant, I do not find that the tuition costs are excessive or unreasonable, given the Attending School’s educational program for the Student. Carter, 510 U.S. 7, 15-16.
The Parents asserted in their due process complaint that they are financially unable to pay the Student’s tuition at the attending school for the two school years at issue. The Parents also provided their Form 1040 from 2018 in support of their claim, and there has been no material changes to their income since that time. (P.-O.; LL at ¶ 47) The Mother testified that her family could not afford to pay the Student’s tuition for either the 2019-2020 or 2020-21 school years. (P.-LL.) She also acknowledged that she recognized that if the Parents did not prevail in this matter, they would be responsible for paying the Attending School the Student’s tuition for the years at issue. (P.-LL. at ¶ 48)
The record clearly establishes that the Parents incurred an obligation to pay the Attending School the aggregate tuition sums of $107,000 and $112,000 for the Student’s enrollment in the Attending School during the 2019-2020 and 2020-2021 school years. The record also establishes that the Parents have not paid any of the Student’s tuition for either school year, and that they are unable to pay the sum owed. Given my findings, the Student is entitled to an award for tuition funding the Student’s attendance at the Attending School for the 2019-2020 and 2020-2021 school years, to be paid directly to the Attending School. See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453-54 (2d Cir. 2013) (“direct payment fits comfortably within the Burlington-Carter framework: like reimbursement, direct payment to the private school that provided the required educational program ‘merely requires [the school district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.’”) (quoting Burlington, 471 U.S. at 370-71).
OTHER RELIEF SOUGHT
In addition to tuition reimbursement for the Student’s attendance at the Attending School during 2019-2020 and 2020-2021, the Parents sought additional forms of relief, which I will discuss below.
Compensatory Services
As discussed above, the Parents included a request for compensatory education or compensatory services in their due process complaint. (P.-A.) A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE. P. v. Newington Bd. Of Educ., 546 F.3d 111, 123 (2d. Cir. 2008). An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA. P. v. Newington Bd., 546 F.3d at 123; see also Reid v. Dist. of Columbia, 401 F.3d 516 (D.C. Cir. 2005). The Third Circuit has held that compensatory education is not available as an additional remedy when reimbursement for the cost of a unilateral private school placement is at issue for the same time period. Application of a Student with a Disability, Appeal No. 21-118 (July 12, 2021) (citing D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 498 (3d Cir. 2012) (further citations omitted). Although the Second Circuit has not explicitly addressed this question, “it would be the rare case where a unilateral placement is deemed to provide instruction specially designed to meeting the student’s unique needs but the student is also deemed entitled to compensatory education to fill gaps in the services provided by such unilateral placement.” Application of a Student with a Disability, Appeal No. 21-118.
In this case, although the Student was denied a FAPE for the 2019-2020 and 2020-2021 school years, the Student received appropriate services from the Attending School. The record is replete with evidence that the Attending School addressed the Student’s needs in an individualized manner and provided the Student with the necessary services that would enable the Student to make progress. Moreover, the Parents did not provide any testimony or other evidence regarding what compensatory services the Student supposedly needs, how much those services would cost, or how many hours of services would be necessary to remedy any past deprivations. Accordingly, I deny the Parents’ request for compensatory services.
Evaluations The Student was denied a FAPE because the District failed to conduct the Student’s triennial evaluation. This does not mean that the Parents are entitled to an order for independent evaluators conducted by evaluators of their choosing, however, and I deny their request for such relief. Under New York regulations, the parent only has a right to obtain an independent educational evaluation at public expense “[i]f the parent disagrees with an evaluation obtained by the school district.” 8 NYCRR § 200.5(g)(1). Once the District conducts the Student’s triennial re-evaluation, as discussed above and below, the Parents can review it and determine whether they want to avail themselves of the relief described in 8 NYCRR § 200.5(g)(1).
Transportation The Parents also sought an order “requiring the DOE to provide [the Student] with appropriate round-trip special education transportation,” and “reimbursing the parents for any amounts expended or incurred in getting [the Student] to and from [the Attending School] prior to the initiation of appropriate special education transportation by the DOE during the 2019-2020 and 2020-2021 school years.” (P.-A.) The IDEA does require transportation if that service is necessary for a child with a disability to benefit from public education. Donald B. v. Board of Sch. Comm’rs, 117 F.3d 1371, 1374 (11th Cir. 1997) (citing 20 U.S.C. § 1401(a)(17); see also N.Y. Educ. Law §§ 4401(4), 4402(4)(d). In this case, however, the Parents’ first request is now moot because the 2019-2020 and 2020-2021 school years have concluded. Regarding the Parents’ request for reimbursement, the Parents presented no evidence regarding any specific amounts expended or incurred on the Student’s transportation to and from the Attending School. There are no receipts or bills in the record regarding amounts spent by the Parents on the Student’s transportation, and the Mother’s affidavit does not refer to any transportation issues. (P.-LL.) Accordingly, I deny the Parents’ requests for transportation-related relief.
Attorneys’ Fees The Parents also included a notice of claim for attorneys’ fees in their due process complaint. (P.-A.) The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction. 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006). Only a court can determine if a party is entitled to attorneys’ fees and I would be exceeding the scope of my authority by determining that the Parent is the prevailing party entitled to costs. Therefore, to the extent that the Parents are seeking reimbursement and/or payment of attorneys’ fees and costs, their request is denied.
ORDER
Based above the above Findings of Fact, it is hereby:
- • ORDERED that, within 30 (thirty) days of this decision, the District shall directly fund the Student’s placement at the Attending School for:
- • The 2019-2020 school year in the sum of $107,000; and
- • The 2020-2021 school year in the sum of $112,000 Minus any payments already made by the District to the Attending School for the Student’s tuition for the 2019-20 and/or 2020-21 school year.
- • ORDERED that, the CSE shall convene a review meeting within 14 (fourteen) days of this decision with a view to commencing a reevaluation of the Student in accordance with subsections (b) and (c) of 20 U.S.C. § 1414, if the CSE has not already done so since November 1, 2021.
SO ORDERED.
DATED: May 11, 2022
Michele Host (signed electronically)
Impartial Hearing Officer
Michele Host
APPENDIX A -- 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 B – ADMITTED EXHIBITS
DISTRICT’S EVIDENCE
Exhibit
Title
Date
Pages
1.
IEP
04/08/2019
37
2.
Prior Written Notice and School Location Letter 2019-2020 SY
05/14/2019
8
3.
CSE Meeting Minutes
04/8/2019
2
4.
Progress Reports
03/28/2019
14
5.
Behavior Plan
04/01/2019
4
6.
IEP
4/30/2020
32
7.
Prior Written Notice and School Location Letter 2020-2021 SY
05/29/2020
8
8.
Behavior Plan
04/14/2020
4
PARENTS’ EVIDENCE
Exhibit
Title
Date
Pages
A.
Impartial hearing request
8/27/20
32
B.
DOE acknowledgment of receiving the impartial hearing request
8/28/20
2
C.
Letter from Parents to Chairperson, NYC DOE Committee on Special Education REDACTED, 2016
6/11/19
4
D.
10-day letter
8/16/19
4
E.
10-day letter
6/16/20
5
F
DOE response to document E
7/8/20
1
G.
10-day letter
8/17/20
4
H.
DOE response to document G
9/9/20
1
I.
E-mail correspondence regarding the scheduling of a resolution meeting and a request to waive the same
9/21/20
2
J
E-mail correspondence regarding the timeliness and sufficiency of the DOE’s response to the hearing request with the response
11/23/20
7
K.
NYC DOE impartial hearing – case assignment sheet
3/31/21
2
L.
Emails from the DOE impartial hearing office regarding hearing officer recusals and appointments.
4/6/21-4/9/21
3
M.
Learning About REDACTED Syndrome
4/18/16
2
N.
REDACTED Syndrome information page
4/18/16
3
O.
Form 1040
2018
2
P.
8/31/20 Attending School Web Page
8/31/20
26
Q.
Attending School remote protocols
2020-2021
3
R.
Weekly schedule
2020-2021
1
S.
Affidavit regarding tuition with attached enrollment agreement
5/12/21
4
T.
Attendance card
9/17/2020
1
U.
Weekly schedule
2019-2020
1
V.
Affidavit regarding tuition with attached enrollment agreement
5/12/21
4
W.
Attendance card
6/18/20
1
X.
Turning 5 addendum to progress report
10/31/15
21
Y.
Psychoeducational evaluation
2/1/2016
2
Z.
Letter to Chairperson, NYC DOE Committee on Special Education REDACTED, 2016, with attached reports
6/23/16
4
AA.
Progress report
8/2/16
30
BB.
Progress report
6/2017
32
CC.
Progress report
6/2018
9
DD.
Annual review
4/2/17
20
EE
Progress report
June 2019
10
FF.
Annual review
4/9/2018
14
GG.
Progress report
June 2020
11
HH.
Annual review
3/18/19
14
II.
March 2021 Progress report
3/2021
13
JJ.
Annual review
3/17/21
20
KK.
Principal’s Affidavit
7/6/21
23
LL.
Mother’s Affidavit
7/8/21
13
Y.2
Psychoeducational evaluation with all pages (provided to IHO on 4/13/2022)
2/1/2016
6
IMPARTIAL HEARING OFFICER’S EVIDENCE
Exhibit
Title
Date
Pages
I.
Status Conference Summary & Order
4/13/2022
3
II.
Emails Regarding IHO Record Questions
4/28/2022
3
III.
Parents’ Closing Brief
10/29/2021
28
Footnotes
[1] Neither party objected to the admission of the other party’s exhibits. (Tr. at 20-21) IHO Bruno admitted into evidence the District’s exhibits 1-8, inclusive, and Parents’ exhibits A-LL, inclusive. (Tr. at 21) The District’s exhibits will be cited as D- followed by a number, and the Parents’ exhibits will be cited to as P.- followed by a letter. The Hearing Officer’s Exhibits will be cited as IHO- followed by a roman numeral. References to the hearing transcript will be cited as Tr. followed by page numbers. The version of P.-Y. originally submitted was missing several pages. The District did not object to the Parents’ attorney providing me with a complete version of that exhibit, which I added to the record as P.-Y.2. (IHO-I.)
[2] Both the 2019-2020 and 2020-2021 IEPs for the Student refer to a January 25, 2017, Assistive Technology Evaluation. While this evaluation is obviously relevant to the Student’s use of an assistive technology device, its importance beyond that issue is minimal, especially since both IEPs note that the student “was absent the day of the evaluation,” and the evaluation was based on interviews with school staff. (D.-1.; 6.)
[3] As noted above, in their due process complaint, the Parents provided multiple bases for their argument that the Student was denied a FAPE for the 2019-2020 and 2020-2021 school years. Although I have reviewed all of the bases for the Parents’ argument, since I have already determined that the Student was denied a FAPE for both school years both procedurally and substantively, I do not find it necessary to address most of the Parents’ remaining contentions in detail. I did want to address the Parents’ argument regarding the District’s failure to note the Student’s need for DIR/Floortime therapy in both the 2019-2020 and 2020-2021 IEPs, however. Generally, the IDEA does not require IEPs to identify specific methodologies that a district will use to provide a student with educational benefits. N.B. and C.V. v. New York City Dep’t of Ed., 2017 U.S.App. LEXIS 19879, **7 (2d Cir. Oct. 10, 2017). And yet, a CSE cannot ignore a “clear consensus” of materials showing that a child needs a methodology to receive FAPE. A.M., 845 F.3d at, 543. In this case, the underlying evaluative data shows that the Student’s educational program at the Attending School incorporated DIR/Floortime throughout the Student’s school day, and the Principal testified both that she believed DIR/Floortime was necessary for the student to learn, and that she informed the CSE team about her position during both IEP meetings. (D.-4.; P.-KK. ¶¶ 83-98) The District incorporated all of the progress reports provided by the Attending School into the 2019-2020 IEP except, conveniently, the progress report provided by the Student’s DIR/Floortime therapist. (D.-1.; 4) The District did not provide any evaluative materials or testimony suggesting that DIR/Floortime did not play a major role in the Student’s educational program, or that the Student could be educated using some alternative methodology. See A.M., 845 F.3d at 544. Accordingly, when combined with the DOE’s recommendation of a 1:1 program without any individualized evidence in support of its recommendation, the District’s failure to explicitly consider DIR/Floortime in the Student’s 2019-2020 and 2020-2021 IEPs denied the Student a FAPE.
[4] The enrollment contract for the 2020/2021 school year states that the tuition amount is $124,000, not $112,000 as the affidavit states. This apparent discrepancy arises from the fact that the enrollment contract is for a twelve-month school year, whereas the affidavit only relates to the Student’s attendance between September 9, 2020, and June 17, 2021. (P.-S.; IHO-II.) The Mother’s testimony confirms that the Parents seek $112,000 in tuition funding. (P.-LL.)