New York City Department of Education, Impartial Hearing Decision

HEARING OFFICER’S FINDINGS OF FACT, DECISION AND ORDER

Case Number: 197523

Student’s Name: REDACTED

(hereinafter known as “Student”)

Student’s Date of Birth: REDACTED

Complaint Filed by: REDACTED

(hereinafter known as “Parent”)

Date Complaint Filed: 9/2/20

District: REDACTED

Dates of Appearances: 7/15/21, 8/2/21, 9/9/21, 10/12/21, 11/10/21,

12/2/21, 1/18/22, 1/20/22, 2/16/22, 2/24/22, 3/10/22

3/28/22

Impartial Hearing Officer: Barbara Jeanne Caravello, Esq.

Date Record Closed: 8/23/22

Hearing Officer, Finding of Fact, Decision and Order

____________________________________________

NAMES AND TITLES OF THE PERSONS WHO APPEARED:

On July 15, 2021

Appearing for the Parent: REDACTED

Appearing for the District: REDACTED

On August 2, 2021

Appearing for the Parent: REDACTED

Appearing for the District: REDACTED

On September 9, 2021

Appearing for the Parent: REDACTED

Appearing for the District: REDACTED

On October 12, 2021

Appearing for the Parent: REDACTED

Appearing for the District: REDACTED

On November 10, 2021

Appearing for the Parent: REDACTED

Appearing for the District: REDACTED

On December 2, 2021

Appearing for the Parent: REDACTED

Appearing for the District: REDACTED

On January 18, 2022

Appearing for the Parent: REDACTED

Appearing for the District: REDACTED

On January 20, 2022

Appearing for the Parent: REDACTED

Appearing for the District: REDACTED

________________________________________________

On February 16, 2022

Appearing for the Parent: REDACTED

Appearing for the District: REDACTED

On February 24, 2022

Appearing for the Parent: REDACTED

Appearing for the District: REDACTED

On March 10, 2022

Appearing for the Parent: REDACTED

Appearing for the District: REDACTED

On March 28, 2022

Appearing for the Parent: REDACTED

Appearing for the District: REDACTED

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INTRODUCTION AND PROCEDURAL BACKGROUND

On June 30, 2021, the undersigned impartial hearing officer was assigned to this matter pursuant to appointment by the New York City Department of Education (hereinafter also referred to as the “DOE” or the “District”) under the Individuals with Disabilities in Education Act (hereinafter also referred to as “IDEA”), 20 United States Code §1415(f)(1) and Section 504 of the Rehabilitation Act of 1973 to officiate over a due process hearing requested by the Parent by way of a due process complaint (hereinafter also referred to as a “DPC”) filed against the DOE on September 2, 2020.

The DPC alleged a denial by the DOE of free and appropriate public education (hereinafter also referred to as “FAPE”), to the Student and that the Department caused unreasonable delay in failing to immediately appoint a hearing officer. It also alleged that unilateral placement made by the Parent was appropriate and that the equities favor the Parent.

The Parent essentially seeks findings that the Student was denied a free and appropriate public education, (“FAPE”), that the current placement is appropriate, orders for the funding or reimbursing the Student’s tuition at the current placement, reimbursement for related costs, including transportation, reimbursement for private evaluations, for the academic year of 2020-2021. The due process complaint also requests costs and fees and any further relief as the IHO finds appropriate.

Appearances took place on July 15, 2021, August 2, 2021, September 9, 2021, October 12, 2021, November 10, 2021, December 2, 2021, January 18, 2022, January 20, 2022, February 16, 2022, February 24, 2022, March 10, 20022, March 28, 2022. Extensions were requested and granted.

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ISSUES PRESENTED

• • Did the DOE meet its burden to show that it provided a free and appropriate public education (“FAPE”) for the school year 2020-2021?
• • Did the Parent meet the burden of showing that REDACTED (“REDACTED”) and REDACTED, (“REDACTED”), were appropriate placements?
• • With which party does the equity lie, with respect to a decision to direct funding for tuition for the 2020-2021 school year?

THE DISTRICT’S CASE The DOE concedes to the failure to provide the Student a FAPE for the 2020-2021 school year. It argues that both programs are inappropriate for the Student and that the equities favor the DOE and presents documentary evidence intended to support this, (Appendix A).

The DOE asserts that the burden to demonstrate that the unilateral placement was appropriate, even if the IEP was inappropriate, and that such a burden entails proof that the placement is reasonably calculated to enable the child to receive educational benefits.

Further, educational instruction specifically designed to meet the unique needs of a handicapped child.

The DOE posits that academic and instructive elements must be more than merely incidental. The DOE points to reasoning used in the opinion that the hearing record must contain adequate specificity about the frequency, length and content of the discussions between the student and tactical officer, or the methodology and interventions employed.

________________________________________________ The DOE posited that the cross-examinations of the three witnesses who were employed by both REDACTED and REDACTED demonstrated that the nature of the programs while therapeutic, could not be deemed adequate as academic programs. The DOE offers an opinion that to justify reimbursement, there must be shown, “reasonable qualifications” by “objective evidence” and that this standard was not met here.

The testimony of the REDACTED principal, REDACTED was that there were no certified teachers, but instead, “academic mentors.” The DOE opines that both programs attended by the Student are better described as a residential therapeutic program than a special education school and reimbursement is not justified for either.

THE PARENT’S CASE The Parent asserts that the DOE has failed to provide a free and appropriate public education for this REDACTED -year-old Student who is diagnosed with Specific Learning Disorders with Impairments in REDACTED, REDACTED and REDACTED, Attention Deficit Hyperactivity Disorder, Combined Presentation and REDACTED Disorder with REDACTED and REDACTED.

The Parent asserts that the DOE has denied the Student a FAPE during the 2020-2021 school year and the DOE concedes to this allegation. The only other matters in contention are whether the unilateral placement is appropriate, (Prong II) and which party the equities favor, (Prong III). Witness and documentary evidence was submitted, Appendix B.

The Parent submitted documentary evidence -- through --, (See Appendix A). The Parent also offered three witnesses for live testimony.

________________________________________________ The Parent presents a history of a Student who, since sixth grade has been struggling, academically, socially and emotionally. The Student’s academic issues began in elementary school and in 6th grade, the Student was placed in the REDACTED school. The CSE team recommended services that the Parent’s did not agree with. The Student remained in the unilateral placement.

In the 2018-2019 school year, the Student became emotionally regulated and did not attend school on a regular basis which caused her to repeat the year. When the emotional issues did not subside, the Parents placed the Student in a residential school for students with executive functioning needs, Attention Deficit Hyperactivity Disorder, (“ADHD”) and learning disabilities. The placement was determined to be appropriate by a previous IHO for the school year, 2019-2020.

The Student was asked to leave the placement when the Student’s dysregulated behavior increased, causing an unsafe situation. The Parent’s then unilaterally placed the Student in REDACTED. The enrollment began in October 2020, and she was discharged directly to REDACTED, a residential therapeutic school for girls. It was for the 2020-2021 enrollments at REDACTED and REDACTED that the instant due process complaint was filed.

The Appropriateness of the REDACTED program:

Upon the Student’s entry into the program at REDACTED in October of 2020, an intake assessment was conducted by the witness. At the time, the Student was troubled by suicidal ideation and had on one occasion, deliberately ingested a very high dose of her medication. The Student had a history which placed her at moderate risk of continued self-harm with a high risk

________________________________________________ of impulsivity and risk-taking behavior. She additionally presented as suffering from depression and anxiety. The witness believed that the placement at REDACTED was appropriate, for these reasons. The witness conducted a more comprehensive evaluation of the Student’s needs at Parent’s request. The District had not done such an evaluation.

The Student’s treating therapist at REDACTED, REDACTED testified that the Student’s emotional needs directly affected her academic performance, and the serious nature of the Student’s psychological concerns must be first adequately addressed. Academic work is introduced based on the Student’s ability to maintain a safe level of emotional stability. As the Student became able to function in an academic environment, work was introduced and there would be an expectation that the Student would earn two high school credits.

The methods utilized to treat the Student included therapy groups, peer feedback, survival skills, staff and therapist feedback and therapeutic assignments. The Student needed to learn more about social skills so that she would not unnecessarily misread social cues, leading to unsafe behavior. The therapist worked with the family and taught the Student to manage and understand her diagnoses. The Student was first diagnosed with non-verbal learning disability while at the treatment center.

The Parent testified that the Student was at a critical stage when enrolled in REDACTED and expressed his view that the Student’s safety and ability to regulate her behavior had to take priority before academic success of any kind could be expected. The Parent believed that without the REDACTED program, future academic success was unlikely.

________________________________________________ The therapist, REDACTED, testified that during the Student’s enrollment at REDACTED, the Student learned to regulate her behavior, even when there were anxiety provoking events. The Student became engaged in the therapeutic process and learned an understanding of her emotional responses such that she was able to work on academic assignments. Negative peer influences became less of an issue for the Student.

The Appropriateness of the REDACTED Academy:

As for REDACTED, the REDACTED as well as REDACTED, shared the conviction that it would be necessary for this high-risk Student to transition to a residential, therapeutic placement to prevent relapse and to build on the emotional skills she learned in the crisis placement.

There was affidavit testimony by the REDACTED principal, REDACTED. The placement was described as an all-girls therapeutic boarding high school, providing a college preparatory curriculum in a therapeutic atmosphere. Students with issues such as Anxiety/Depression, Focus/Motivational Issues, Self-Harm and Social Challenges are among those that the school is prepared for and dedicated to helping. The school is fully accredited and licensed by the REDACTED Behavioral Health system. The curriculum includes core subjects, nutritional programming, arts and humanities. There is one-to-one tutoring offered, ACT/SAT prep studies and college counseling. The curriculum has room to prepare the students for college-level courses while assisting those who, due to their individual challenges need assistance getting and staying on track for graduation.

The placement tailors each student’s program to meet all educational, emotional and social needs. To this end, each student is assigned an academic mentor who monitors the

________________________________________________ student’s progress, meeting weekly with the student, communicates with the treatment team and the Parent’s about the student’s progress, and follow up with any support needed. Classes are no larger than 12 students.

The students receive at least 90 minutes per week of individual or family therapy. At least six times per month, group therapy sessions are held. The program is highly structured, and the students have a schedule that begins at 6:00 am and ends at 9:00 pm.

In addition to the academic mentor, the students are assigned a clinician and a community life director. Each student is provided with a master treatment plan which is guided by the student’s diagnoses and recommended treatment.

Mr. REDACTED testified to what he felt was significant progress by the Student. She was, in his opinion, better able to stay organized, improve academic focus, follow an organizational plan, improved ability to ask for help and gained insight into her tendency to over-analyze and internalize in social situations. The Student learned to manage restlessness and anxiety by identifying her need for breaks or making use of relaxation techniques or deep-breathing exercises, for example.

Equities:

The Parent posits that the equities favor the Parent for reimbursement. The Parent points out that the DOE has conceded that it has denied the Student a FAPE and should therefore be precluded from presenting a case for equities, The Parent additionally, makes the argument that the Parents here did not behave unreasonably and that the hearing officer enjoys broad discretion in considering equitable factors and that both parties conduct and interest must be balanced.

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FINDINGS OF FACT

I find that the Parent’s witnesses were all credible and have no reason to suspect that the testimony as set forth above was anything but factual, candid and truthful.

I find that the Student is an REDACTED-year-old with a diagnosis of Specific Learning Disorders with Impairments in REDACTED, REDACTED and REDACTED, ADHD, Combined Presentation and Adjustment Disorder with REDACTED and REDACTED.

The DOE conceded that in the year 2020-2021, it failed to provide the Student with a FAPE. The decision and order must therefore analyze only the appropriateness of the program and the balance of equities.

I find that immediately prior to entrance to the REDACTED program, that the Student was subject to suicidal ideation and dysregulation of her behavior that made academic progress unavailable to her and was potentially damaging to her physical well-being. The Student did in fact, attempt to take her own life by ingesting a larger than proscribed dose of her own medication. She ultimately changed her mind and induced vomiting. I do not have information before me as to whether the dose would have been lethal or whether the Student would have attempted such an act in the future. These issues were not specifically raised at hearing, but I find that the implication of the Student’s act of self-harm is one of several issues at the core of the Parent’s actions and of my decision. I find that this Student has been, as her therapist testified, a risk-taker. That is a dangerous situation for her, and it is essential that she learn what triggers this impulse and why her self-worth is not positive enough to foster an impulse instead, for self-protection.

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I find that, the Student was not attending school with enough regularity to succeed and was regressing, academically, emotionally and socially. This behavior was also a function of an impulse for self-harm as well as a “cry for help,” telegraphing to her parents and educators that she needed intervention.

As a result of her severely compromised emotional state, the Student was placed in a therapeutic program, REDACTED, which stabilized the Student, so that she could gain the insight, motivation and confidence to study and learn more efficiently and successfully.

I find that the Student was in need of a learning environment that had a strong therapeutic component and that upon completion of the REDACTED program the need for such therapeutic support was still prevalent. Both REDACTED and REDACTED have programs which were reasonably calculated to address the individual needs of this Student and allow her to access learning while addressing the Student’s significant emotional needs which were preventing her academic success in the 2020-2021 school year.

CONCLUSIONS OF LAW AND DISCUSSION

Free and appropriate public education (“FAPE”):

The IDEA was legislated in order to “ensure that all children with disabilities have available to them, a free appropriate public education that emphasizes special education and related services designed to meet their unique needs,” Board of Education of Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982).

The hallmark of a FAPE is educational instruction that is designed to “meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction,” id.

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It is the responsibility of the DOE to provide the Student with the services and/or placement that will bring him or her up to a level of learning that is not only sufficient to confer some educational benefit upon the ‘handicapped’ child, Rowley, supra, but emphasizes special education and related services designed to meet the Student’s unique needs and prepare him for further education, employment and independent living as well as ensure that the rights of students with disabilities and parents of such students are protected, (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S.Ct. 2484, 2491 [2009]; Rowley, at 206-07.

A district may be found liable for a denial of FAPE when it places a student with a disability in a school or program that cannot provide the services and supports he needs to receive FAPE, D.L.v. St. Louis City Sch. Dist., 76 IDELR 31 (8th Cir. 2020).

In the instant matter, the DOE has conceded that it did not provide the Student with a FAPE and no further analysis is necessary.

Appropriateness of the Placement:

A court or a hearing officer may order a district to reimburse the parents of a student with a disability for the student’s unilateral private placement if the district failed to make a FAPE available in a timely manner and the unilateral private placement is appropriate, 34 CFR 300, 148 (c); Florence County Sch. Dist. Four v. Carter, 20 IDELR 532 (US 1993).

With the DOE’s concession that the Student has been denied a FAPE the analysis of whether the placement is appropriate is the next consideration.

The IDEA authorizes a hearing officer to make this reimbursement order if the unilateral placement was ultimately determined to be more proper than the IEP, Sch. Comm. of Burlington

________________________________________________ v. Dep’t of Educ., 471 U.S. 359, (4/29/85), Florence County Sch. Dist. Four v. Carter, 510.S. 7, (11/9/93).

This Student’s IEP did not recognize the need for the Student to be emotionally stable before any meaningful academic progress could take place. The DOE’s position that the agency is not responsible for the Student’s therapeutic treatment, a consideration that has some merit. If the Student were instead, committed to the care of a psychiatric facility, the Student’s medical insurance or family finances would be expected to pay the cost. However, if the Student were in such a facility, as soon as the medical professionals saw that a student could manage academic responsibility, the DOE would likely be responsible to provide the Student with some form of support if the care was long-term. If the Student remained in a public school during a period of emotional crisis, it would not be unusual to expect the DOE to provide counseling and evaluations. The former example was not considered by the Parents or apparently by any mental health professionals to be appropriate or the least restrictive alternative. The latter example did not provide the Student with a program that was restrictive enough.

A therapeutic program such as the REDACTED program, that addressed the crisis that the Student was experiencing and introduced an academic program as the Student could manage such responsibility is neither exclusively therapeutic nor exclusively academic. This Student needed therapeutic intervention in order to access learning. The academic lessons were introduced in tandem with the therapy. The goal of the therapeutic intervention was so that the Student could safely resume her studies. That goal is credibly testified to have been achieved by REDACTED. An associative goal of the REDACTED program was to transition the Student to a program that could continue the Student’s education after the crisis period was over in such a

________________________________________________ way as to prevent the Student from regressing and using the tools learned in the crisis program as a day-to-day, more permanently integrated strategy to address the Student’s individual needs.

A unilateral private placement does not need to meet state standards for public education programs to be “appropriate” for reimbursement services if it is in substantial compliance with the substantive requirements of IDEA, Burlington, supra, Carter, supra, 34 CFR 200.148 (c). A unilateral private placement is appropriate for reimbursement purposes if it offers instruction that is specially designed to meet the student’s unique needs as well as the support services the student requires to benefit from that instruction, id, (see also, M.N. v. State of Hawaii, Dep’t of Educ., 60 IELR 181 (9th ir. 2013, unpublished); Ward v. Board of Education of the Enlarged City Sch. Dist. Of Middletown, NY, 63 IDELR 121 (2d Cir. 2014, unpublished).

There is adequate caselaw that expands on the concept that an appropriate placement does not need to mimic the education offered by the school district as long as it meets the needs of the individual student. As the Parent posits, a unilateral placement need not offer the child an IEP, or employ “certified” special education teachers, citing Frank G. v. Bd. of Educ., 459 F. 3d 356, 364 (2d Cir. 2006). Also opined by the Parent is the idea that an “appropriate” private placement provides “educational instruction specifically designed to meet the unique needs of the student,” Gagliardo v. Arlingron Cent. Sch. Dist., 489 F. 3d 105, 112 (2d Cir. 2007), yet it “need not meet state education standards or requirements” of the [IDEA] definition of a free and appropriate public education,” Frank G., supra.

I agree with the above and with the following, also presented as part of the Parent’s brief:

The test for a parent’s placement is not perfection, citing, M.S. ex re S.S. v. Bd. of Educ., 231 F.3d 96 (2d Cir. 2000). Rather, the inquiry must focus on whether the placement is an

________________________________________________ appropriate school designed to address the child’s special education needs, citing Gagliardo, supra. This specifically addresses the concern of the DOE that the “academic mentors” provided by REDACTED who are not “traditional teachers,” Tr.201, pp. 5-22, as well as the therapists at Blue Ridge who offer “self-directed” instruction, Tr. 308, pp. 1-8.

It may be that a crisis intervention program that not only had a strong therapeutic component with special education teachers standing by to deliver a more traditional approach to instruction as the Student was ready to participate would have been ideal, but that is not certain. The REDACTED program was geared towards instruction by introducing “self-directed” instruction as this Student was able to address the nature of her individual learning issues and learn regulate her behavior in order to accept help, develop greater focus and gain insight so that the Student would be able to learn in a safe environment. This was part of a learning plan. The testimony of all three of the Parent’s witnesses made that clear. Of course, it would have been wonderful, if this therapeutic intervention were not necessary in order for the Student to receive an education, but it was, and the Student’s individual needs required it. To equate this program to one that is merely therapeutic in nature and has no connection to the Student’s education is not, in my view accurate. There was no inquiry as to how much if any of this stay would have been covered by the Student’s medical coverage so that consideration is not before me. What is clear, is that the program or one like it appears to have been necessary for this Student’s academic success.

The DOE asserts that the burden to demonstrate that the unilateral placement was appropriate, even if the IEP was inappropriate, citing Gagliardo, supra, see also M.S. v. d. of Educ., supra, and that such a burden entails proof that the placement is reasonably calculated to

________________________________________________ enable the child to receive educational benefits, citing Frank G., 459 F. 3d. Educational instruction specifically designed to meet the unique needs of a handicapped child must be included, citing Gagliardo, at 115, supra.

The academic and instructive elements, the DOE continues, must be more than merely incidental, citing, Appeal No. 20-062. The DOE points to reasoning used in the opinion that the hearing record must contain adequate specificity about the frequency, length and content of the discussions between the student and tactical officer, or the methodology and interventions employed, id.

The DOE implies that there is paucity of the specificity of REDACTED’s program. It asks in its closing brief, whether REDACTED is a residential program, an academic program, one that is instructional, or merely therapeutic.

It cannot be denied that REDACTED’s testimony describes a program with a considerable non-traditional approach to learning.

As the DOE points out, the principal describes his school as having a “differentiated instructional approach, oftentimes experiential and collaborative instruction.” He goes on to say that “We’re here to learn from students, to understand what their strengths and weaknesses are” and that “all students are there to connect, based on their strengths and weaknesses and however instruction is delivered,” Tr. 201, pp. 5-22. The fact that there does not appear to be any instructional staff that have any teaching certification cannot be ignored. At the same time, neither can the Gagliardo and Frank G. standards, supra.

The DOE’s responsibility under IDEA is to educate the Student. If the public school is unable to do so, it is the DOE’s responsibility to find the programs and supports that will achieve

________________________________________________ this goal. An argument could be made that the informal assessment process at REDACTED does not make it easy to determine whether the students are achieving the curriculum goals that they are entitled to but in the case of this Student, the public schools were definitely unable to, which is likely what the DOE is conceding at the Prong I portion of the instant hearing.

When the DOE asks whether the REDACTED program is academic in nature, instructional or if it is therapeutic, the answer may well be all three, as per the direct and the cross-examination testimony.

I will note that the academic and instructional portion does not at all closely resemble the public-school model. At the same time, the student population does not resemble the typical public school student population, even that of the special education population, who are able to thrive in the public schools.

At REDACTED, REDACTED testified that the Student was able to learn skills in order to stay organized, improve academic focus, follow an organizational plan, and improve ability to ask for help. The Student was able to gain insight into her tendency to over-analyze and internalize in social situations. The Student further learned to manage restlessness and anxiety by identifying her need for breaks or making use of relaxation techniques or deep-breathing exercises. These are skills that allow for educational instruction to take place. The non-traditional nature of the instruction provided at the school does not take away from the apparent ability of the Student to access learning that she was unable to succeed with in a traditional setting.

I think the testimony adequately showed that a residential setting was necessary for this Student. The curriculum itself, appears to be so individually tailored to the Student’s needs that

________________________________________________ to call it highly structured, would be difficult to prove, here. The routine that the students follow at the school however, does appear to provide a great deal of structure. The students reportedly have supports, educational instruction interspersed throughout their day in a way that keeps them engaged from their 6:00 am rising time until their 9:00 pm bed time. For students who have issues with self-regulation, this routine would offer a sense of predictability that in itself is therapeutic.

Essentially, there is sufficient testimony and documented evidence that each unilateral placement is able to address the Student’s individual needs in a way that will make learning accessible and academic success possible for this Student. Both REDACTED and REDACTED are therefore, appropriate for this Student’s needs.

Equity:

The balancing of equities is the final consideration in determining whether the cost of reimbursement should be borne by the District for a unilateral placement, J.T. v. Dep’t of Educ., State of Hawaii, 72 IDELR 95 (D. Haw. 2018). The factors that must be considered consist of:

• • Whether the parents failed to provide the school district with timely notice of their rejection of the proposed public placement, including their concerns and intent to enroll the student in a private school at public expense. This notice is timely if it is made either at the most recent IEP team meeting or at least l0 business days prior to removal of the student from the public school, 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148 (d)(3).

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• • Whether prior to the student’s removal, the school district informed the parents of its intent to evaluate the student, but the parents did not make the student available for the evaluation, 20 U.S.C. § 1412(a)(10)(C)(iii)(II); 34 C.F.R. § 300.148 (d)(1).
• • Whether the parents actions were unreasonable, 20 U.S.C. § 1412(a)(10)(C)(iii)(III); 34 C.F.R. § 300.148 (d)(3).
• • Whether the cost of the private placement is unreasonable, Carter, supra.
• • Whether there was a lack of parental cooperation with the school district, ^[1]
• • The Parent did not agree with the IEP recommendations but received no response. She sent timely notice that she intended the Student to be placed in a more appropriate setting and that he would unilaterally be enrolled in the REDACTED.

There is no indication that the Parent failed to produce the Student to an evaluation planned by the District or otherwise failed to cooperate with the District, as the Student was struggling in the program provided by the District, the Parent expressed dissatisfaction with the IEP as written, the District failed to provide the Student with FAPE and the Parent’s found a more suitable program, it cannot be said that the Parent’s actions were unreasonable.

The DOE appears to be implying that the Student’s emotional difficulty with school should have been addressed in a program covered under her medical insurance and once the immediate crisis period was over, returned to a more traditional program. If such a program could not be found, the financial responsibility for a “therapeutic program” would then fall to the Parents. There is no evidence that there is a better program that could have assisted the Student. The DOE did not file its own due process complaint making this claim and asking as its relief, that enrollment in an alternative program be ordered. Neither is there evidence that the DOE offered a more appropriate program to the Student.

I agree with the Parent that where the DOE has conceded that it has denied the Student a FAPE it should be precluded from presenting a case for equities. The Parent cites as support, N.R. v. Department of Educ. Of City of New York, 2009 U.S. Dist. LEXIS 27273 *20-21 (S.D.N.Y. 2009) (holding that, where DOE abdicates its well-settled duty to provide FAPE, the equities will favor the Parents); also citing, Gabel v. Bd. of Educ. of Hyde Park Cent. Sch. Dist., 368 F. Supp. 2d 313, 329 (S.D.N.Y. 2005).

For all reasons stated herein the District offered no adequate defense to equities lying with the Parent.

Transportation:

I agree with the DOE that the necessity or specificity of the cost of transportation to and from either program was supported in the evidence. I am declining to grant an order of transportation reimbursement to the Parent.

Reimbursement for evaluation of Dr. REDACTED:

I find that the DOE should have investigated the areas of suspected disability, which would have included an evaluation such as that conducted by Dr. REDACTED. The reimbursement of this evaluation is therefore appropriate.

DECISION AND ORDER:

Based on the Findings of Fact and Conclusions of Law and all evidence before the IHO, it is hereby ordered that:

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• • The DOE has denied the Student a FAPE for the school year 2020-2021.
• • Both REDACTED and REDACTED are found to be appropriate placements.
• • The equities favor the Parent in this matter with respect to reimbursement of the tuition and the reimbursement for the evaluation by Dr. REDACTED.
• • The DOE shall reimburse the tuition for REDACTED for the school year 2020-2021.
• • The DOE shall reimburse the tuition for REDACTED for the school year 2020-2021.
• • The DOE shall reimburse the out-of-pocket expense incurred by the Parent for an evaluation and report conducted on behalf of the Student by Dr. REDACTED for the school year 2020-2021.
• • The Implementation Unit is to authorize any services within 14 days and that payment must be made within 30 days of receipt of invoices.
• • The district must immediately upon receipt, enter this order on a system that is used to keep track of such orders.

SO ORDERED:

Dated: September 5, 2022

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Barbara J. Caravello, Impartial Hearing Officer Finding of Fact, Conclusions of Law, Decision and Order

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APPEAL RIGHTS

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.

Footnotes

[1] Neither Burlington, Carter nor the IDEA mentions this equitable consideration, but other courts have weighed parental cooperation in deciding whether to award reimbursement, See e.g., Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656 (S.D.N.Y. 2005), Glendale Unified Sch. Dist. v. Almasi, 122 F. Supp. 2d 1093, (C.D. Cal. 2000), 20 U.S.C. §1412(a)(10)(C).