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Special Education Law
DECISIONParent PrevailedIHO Case No. 203656

New York City Department of Education, Impartial Hearing Decision

February 21, 2022·must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See: Application of Child with a Disability, Appeal No.. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See: Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

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

SED # 547127 NYC # 203656

NEW YORK CITY DEPARTMENT OF EDUCATION

______________________________________________________________________________

STUDENT, a minor, by and through

Parent(s),[1]

Petitioners,

FINDINGS OF FACT AND DECISION

Case No: 203656

-against-

NEW YORK CITY DOE, CSE REGION REDACTED Jennifer Mazzei, Esq.

Respondent. Hearing Officer

______________________________________________________________________________

INTRODUCTION

This matter comes before your undersigned Hearing Officer on Petitioner’s Due Process Complaint, filed on or about November 6, 2020 (hereinafter, “DPC”) P-Ex: A.[2] Your undersigned Impartial Hearing Officer was appointed on October 18, 2021, IHO-Ex: I. It is not known if the Respondent ever filed a response to the DPC, but none was entered into evidence. A pre-hearing conference was held on October 26, 2021, and a prehearing conference summary and Order was issued on October 26, 2021.

Petitioner was represented by the REDACTED, by REDACTED., and Respondent was represented by Agency Attorney, REDACTED. A hearing was held on January 20, 2022, and testimony concluded that same day. Said hearing was conducted via Escribers. Exhibits were pre-marked, and Petitioner entered evidence Exhibits A-H. This IHO entered evidence one exhibit, Exhibit I. Respondent did not enter any exhibits into evidence. Petitioner called two (2) witnesses, the Private School Chair of Learning Support and Student’s Parent. Respondent did not call any witnesses. Closing briefs were submitted on February 09, 2022 and a final status conference was held on February 10, 2022. The record was closed on February 10, 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”),[3] 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.

ISSUES

The issues to be determined are as follows:

  • • Whether the Respondent failed to provide Student with a Free Appropriate Public Education for the 2019/2020 school year,
  • • Whether Petitioner’s unilateral placement of Student in the Private School was appropriate,
  • • Whether balancing of the equities in this matter warrants a finding in favor of Petitioner,
  • • Whether Student is entitled to special education transportation at public expense,

RELIEF REQUESTED:

For the 2019/2020 School Year, Petitioner seeks the following relief:

  • • A finding that the Respondent failed to provide Student a Free Appropriate Public Education for the 2019/2020 School Year and
  • • A finding that Petitioner’s Unilateral Placement at the Private School was appropriate and
  • • A finding that equitable considerations support the Parent’s claim for reimbursement and
  • • An Order reimbursing Petitioner for tuition, related services, and transportation at the Private School.

FINDINGS OF FACT

After considering all the evidence, as well as the arguments of both parties, the Findings of Fact are as Follows:

  • • According to the Due Process Complaint, during the 2019/2020 school year, Student was REDACTED years old and attending the Private School. (P-Ex: A). Student was found to be eligible for special educational services. (P-Ex: A).
  • • The Chair of Learning Support for the Private School testified that the school has a residential program and is generally a college preparatory school but also maintains a strong learning support program (T.44). There is also a day program at the school and thus the school is not solely residential in nature (T.80).
  • • Parent testified that Student was not offered a program at all from the Department of Education (T.101) and that Student had been previously enrolled in the private school in years past (T.101). Parent testified that this school was chosen due to what they felt was a small, homey, and nurturing environment (T.110). Ten Day Notice was provided to the Respondent prior to the unilateral placement in the 2019/2020 school year (P-Ex: D).
  • • Parent further testified that Student was enrolled in the Private School since the 2017-2018 (T.102) school year and that he remained there as a student for subsequent years as that it was felt that he was making progress and “excelling” (T.103).
  • • A residential program was chosen for Student after a psychological evaluation was completed (T.106) through another program in which Student was enrolled. It should be noted that no psychological evaluation of Student was offered into evidence.
  • • During the 2019/2020 School Year, the Private School had approximately 120 students enrolled throughout the entire school (T.48). The average class size was eight (8) students (T.48). For the school year in question, Student was in a group of four (4) students to one (1) teacher (T.52).
  • • Around thirty-five (35%) percent of students at the school were learning support students who also engaged in college preparatory classes (T.44). Many of the students enrolled at the Private School are college, trade school or higher education bound (T.45). The school educates students from grade nine through twelve with a post graduate program as well (T.46). The program is co-educational (T.46).
  • • The Private School is a general educational setting and the diplomas conferred upon graduation are general education diplomas. (T.72).
  • • On direct examination, the Chair of Learning Support testified that she is familiar with Student because his group met in her office and she was a substitute in his class when needed and so therefore worked directly with Student, on occasion (T.47). Additionally, Student and the Chair were involved in the hiking club together (T.47). However, on cross examination the Chair testified that she only had interacted with Student three to four times in an academic setting that entire school year (T.70) and the rest of their interaction was in a social extracurricular setting of the hiking club, which was approximately five afternoons each week (T.70).
  • • The Chair further testified that Student was challenged when it came to the balance of his social and educational life (T.49). She categorized student very social person who needed to be held accountable to complete his work (T.49). She attributed this to challenges that Student faced as it pertained to attention and executive functioning (T.50). Though, she did not know what, if any, diagnosis the student had (T.77, 78, 79), she did testify that she observed his anxiety (T.95) and that after meeting with the school’s Psychologist, he was better for having done so (T.96).
  • • Parent testified that Student was diagnosed with ADHD (T.100).
  • • Student was engaged in the Learning Support Center where he would go to review his homework and reading and math (T.52, 53). The support was tailored to Student’s needs (T.53).
  • • The Private School has a psychologist on staff for which Student went to for therapeutic support when he felt he needed it (T.51). The Psychologist was always available (T.55), though they are not a therapeutic school (T.75)
  • • Student had difficulty with multi-step instruction and those tasks needed to be modified so that Student could complete them (T.50). Student was given extended time and his examinations were spread out (T.50). Additionally, the timeline of the school day appears to be very regimented and highly structured with nearly every hour of the day accounted for (T.53-54).
  • • Though engaged in this highly structured environment Student’s grades began to drop during the second term (T.60). Parent testified that Student started at the beginning of the school year and was doing well, but as is typical for Student, he began to lose focus when given too much to handle (T.155).
  • • In March 2020 due to the COVID-19 Pandemic, Student was no longer in person at the Private School and instead was engaged in distance learning (T.36) with virtual meetings three (3) times per week and weekly assignments (T.57). Teachers still had dial in office hours on certain evenings (T.57).
  • • The Chair of Learning Support testified that this was challenging for Student as that he needed prompting and interaction to complete his tasks. Not having that, and the lack of homework support made it difficult for Student (T.63).
  • • In determining progress, the Chair indicated that they look to assessments as well as completion and quality of homework (T.64). Since Student was given modifications, his progress determination is based upon the quality and not the quantity of work. The Chair of Learning Support indicated that Student academically progressed (T.64). She testified that this assessment was based on the fact that his teachers did not have to modify him as strongly as previously (T.64, 65).
  • • Socially, the Chair of Learning Support testified that Student made and kept friends and didn’t push people away and was a very good person (T.65).
  • • Petitioner’s Exhibit G shows that Parent paid the Private School a total of $67,475.07 for the 2019/2020 school year.
  • • Petitioner’s Exhibit H is the enrollment contract for the Private School for the 2019/2020 School Year, which was executed by Parent. The enrollment contract called for a total amount due of $63,500.00.
  • • It should be noted that all the witnesses who testified were credible and honest and gave consistent testimony.

CONCLUSIONS OF LAW AND DISCUSSIONS

Based upon the above Findings of Fact, the arguments of counsel, as well as this Hearing Officer’s own legal research, the Conclusions of Law are as follows:

RESPONDENT’S BURDEN:

Whether Student was provided a Free Appropriate Public Education for the 2019/2020 School Year.

The Individuals with Disability Education Act (“IDEA”) is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See: 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of 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.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). To demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See: Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See: Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (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).

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See: Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress must be meaningful, i.e., more than mere trivial advancement. Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.” The Court in Endrew further stated that, “[t]he IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that, “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade... is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982). A Student’s “IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom but is satisfied with barely more than de minimis progress for those who cannot.” Id.

Here, Respondent did not officially concede a denial of FAPE for the 2019/2020 school year. However, the burden of production and persuasion rests with Respondent to show that they have provided a FAPE to Student. See: N.Y. Educ. Law Art 89 Sec. 4404(c). In the instant case, Respondent failed to put forth any documentary or testimonial evidence to support a fining of FAPE, though did cross examine both of Petitioner’s witnesses.

The Supreme Court has found that “[a] reviewing court may fairly expect those authorities 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. at 1002 (2017). Here, Respondent failed to meet their burden as that there was no evidence, in any form, to support a finding of FAPE.

Based upon the lack of evidence above, I must find that Respondent failed to provide Student with a FAPE for the 2019/2020 school year.

PARENT’S BURDEN:

Appropriateness of the Private School

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” Gagliardo, at 112; see M.S. v. Bd. Of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents’ placement…’” Gagliardo, at 112, quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, ultimately, the issue turns on whether that placement is “reasonably calculated to enable the child to receive educational benefits” (Frank G., 459 F.3d at 364; Gagliardo, 489 F.3d at 115). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89).

A Private School placement must be “proper under the Act” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the Private School must provide an educational program which meets the student's special education needs. See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The Private School need not employ certified special education teachers or have its own IEP for the student (id. at 14). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

“Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

Finding that Respondent did not provide a FAPE to Student during the 2019/2020 school year, the burden now shifts to Petitioner to prove the appropriateness of the Private School.

In determining whether Petitioner has met their burden of showing appropriateness of the Private school, it is helpful to have as much information about Student’s needs as possible. Here, the hearing record includes a class schedule, report cards with both grades and statements from Student’s various teachers. There was testimony by the Chair of Learning Support at the Private School that Student appeared to be anxious at times (T.95), and testimony from the Parent, that Student was diagnosed with ADHD (T.100). There was, however, no reports of any psychologist or social worker or any other professional placed into evidence to support said testimony.

However, there was also no evidence that the CSE ever met to develop an Individualized Education Plan (IEP) for Student for the 2019/2020 school year, and in fact, Parent complained of this to Respondent in a letter, Petitioner’s Ten-Day Notice, dated 08/20/2019 (P Ex: D).

In A.D. v. Bd. Of Educ. Of City Sch. Dist. of New York, 690 F. Supp.2d 193, 206 [S.D.N.Y 2010], the Court held that when there is a lack of required evaluative information, and the IEP is deficient as a result, when analyzing whether a unilateral placement addresses a student's needs, the district, rather than the parent is held accountable for any lack of information regarding student’s needs because the IDEA places the responsibility for evaluation procedures upon the district in the first instance. (id. at p. 207; see Application of the Bd. Of Educ., Appeal No. 08-056).

In the instant case, Respondent did not offer any evidence in support of a finding that a FAPE was offered to Student and there was no testimony as to the development of any IEP for the 2019/2020 school year, nor any attempt at a development of an IEP for the 2019/2020 school year. Therefore, the responsibility for any deficiencies in that regard are borne by Respondent and not Petitioner. (see A.D., 690 F. Supp. 2d at 208; Application of the Dep't of Educ, Appeal No. 18-125, Application of a Student with a Disability, Appeal No. 15-076; Application of a Student Suspected of Having a Disability, Appeal No. 15-038; Application of a Student with a Disability, Appeal No. 14-033; Application of a Student with a Disability, Appeal No. 14-028; Application of a Student Suspected of Having a Disability, Appeal No. 14-003; Application of the Dep't of Educ., Appeal No. 13-198; Application of the Dep't of Educ., Appeal No. 13-072; Application of a Student with a Disability, Appeal No. 12-027).

The evidence as to Student’s needs that exists in this hearing record exist solely from the testimony of Petitioner’s witnesses and documentary evidence in the form of report cards with evaluations from teachers and a letter, not affidavit, from the Private School Chair of Learning Support. It should be noted that this person was also one of Petitioner’s witnesses.

The Chair of Learning Support testified that the Private School was a college preparatory school with a “very strong learning support program” (T.44) There is both a residential and a day program at the school, but most students at the Private School are residential students (T.53). That the program is a general education program, and that Students are working towards a general education diploma (T.72) and that all the Students at the Private School are potentially college bound (T.73) with an IQ above 83 (T.73). She further testified that the school does not accept any one with extreme behavioral issues (T.73)

Regarding this Student, the Chair of Learning Support testified that Student was in a Learning Support class (T.52), which met four or five times per week (T.53). In that class, Student’s homework would be reviewed and any modifications that Student would need going forward could be addressed at that time (T.52). There was much testimony about the very structured nature of the school day (T.54, 55). The testimony indicated that nearly every hour of the day was accounted for with either an educational, social, or free time activity, all at set times throughout the day.

The Chair of Learning Support testified that this routine was extremely helpful for Student (T.55). It allowed him to know where he needed to be at all times and to whom he could go to for help, and what was expected of him (T.55). She further testified that there was a psychologist on staff who was always accessible to Student (T.55) and that much of the staff also resides on the same campus as Student (T.56). Student was observed to be anxious (T.95) at times did take advantage of the available school psychologist, and that after meeting with the school psychologist, he was better for having done so (T.96).

During the 2019/2020 School Year, in March of 2020, the COVID-19 pandemic resulted in a shut down of the residential and in person instructional portion of the Private School (T.57) Student was also no longer in the Learning Support Class but did access remote instruction for three hours per day, three days per week (T.57).

Although the Private School was closed to in person instruction, the teachers still maintained office hours in the evenings where Student had access to their assistance on certain nights of the week (T.57). This continued until School ended, the first weekend in June 2020, when Student graduated (T. 57, 58).

Notably Student’s grades dropped during the remote instruction (T.59). This was attributed to the remote learning and Student no longer having the type of accountability that in person instruction would lend itself to (T.63) and feeling depressed from no longer being in person (T.116). However, despite this drop in grades during the final trimester of that school year, the Chair of Learning Support testified that Student did made progress (T.65)

For this Student, progress was determined based upon the type and frequency of the modifications he required, in the second trimester, the Teachers were able to take certain modifications away (T.65). Additionally, socially the Student did well in that he was able to both make and keep friends without pushing others away (T.65).

Student’s Parent also testified in the proceeding. Parent testified that Student was placed in the Private school for the prior school year, not in issue in this proceeding (T.101). The private school was chosen for Student because several school years prior, the Public School recommended a wilderness program, Evoke, for Student (T.103, 104) Student struggled greatly in the Public-School Setting (T.104), he was struggling academically, behaviorally and lacked direction (T.105). It was there, that a full psychological assessment was conducted (T.104) and a residential setting for Student was recommended (T.106). It should be noted that this assessment was not placed into evidence.

Parent testified that psychological assessment at the wilderness program revealed that Student had a high IQ but learned differently than his peers and that things needed to be broken down and spread out in order for Student to do well (T.107).

With respect to the student’s progress at the Private School, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).

Parent felt that Student greatly benefited from being at the Private School and that he was able to graduate and become admitted to a University (T. 112). Parent further testified that he believes that Student’s enrollment in the Private School resulted in educational progress for the Student and he attributed this ability of his son to progress at the Private School to the caring nature of the School where Student was treated with love and kindness (T.117)

Based upon the foregoing, the testimony and evidence presented in this case supports a finding that the Private School was an appropriate placement for Student for the 2019/2020 school year. The Private School offered specially calculated supports for Student to address his individual academic as well as social and emotional needs.

Respondents raised the issue of whether Student truly needed to be in a residential setting. It should be noted that while the Private School may not be the Least Restrictive Environment for Student, this is a parent’s unilateral placement and not a placement offered by the school district. When it comes to unilateral placements, restrictiveness is a factor that may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty, 315 F.3d at 26-27; M.S., 231 F.3d at 105), parents are not held as strictly to the standard of placement in the LRE as are school districts (see Carter, 510 U.S. at 14-15; C.L., 744 F.3d at 839 [indicating that "while the restrictiveness of a private placement is a factor, by no means is it dispositive"]; D.D-S., 506 Fed. App'x at 82 ). While the evidence in the hearing record did indicate that a residential program was recommended by a psychologist, there was no such report in evidence or testimony of any psychologist, thus it can be argued that the record may not support a finding that a residential program was necessary for the student. However, as noted above, the hearing record indicates that Student made progress at the Private School and that Student was provided supports to address his needs at the Private School. Considering the totality of the circumstances, Least Restrictive Environment considerations do not outweigh the other indications in the hearing record that the Private School was an appropriate placement for Student for the 2019/2020 school year.

EQUITABLE CONSIDERATIONS:

Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374). In balancing the equities, I find in favor of the Parent. The Parents have provided appropriate notice to the district of their intent to unilaterally place student (P-Ex. A.), to the extent possible, the Parents have participated in all aspects of the special education process (T.101).

Respondent argued that if tuition were to be granted, that it should not be responsible for reimbursing the portion of tuition representing the residential portion of the tuition bill for the period that the Private School was closed due to COVID-19. Parent testified that he did not receive a refund, did not seek a refund, was never informed by the school that there could be a refund and was unaware of any mechanism by which he could receive any refund after the residential portion of the Private School was closed due to COVID-19 (T.126, 128, 129). Therefore, I do not find that this argument has merit.

Another issue for Equitable considerations was the difference in the tuition contract and the amounts paid by Parent. Parent testified that pursuant to Petitioner’s Exhibit G, he paid the Private School a total of $67,475.07 for the 2019/2020 school year. Petitioner’s Exhibit H is the enrollment contract for the Private School for the 2019/2020 School Year, which was executed by Parent. The enrollment contract called for a total amount due of $63,500.00. When questioned about the difference in what he was required to pay versus what was actually paid, Parent could not account for why he paid more than was required of him under the contract with the Private School (T.115).

A close inspection of the documents in evidence, namely Petitioners Exhibit G explains that Parent was charged for tuition in the amount of $41,600.00, Room and Board in the amount of $20,600.00 and part of Student’s Learning Support Program as a separate program from the Tuition/Room/ Board expense. Student did drop Learning Support on or about 09/30/2019 and Parent was thus supplied with a proportional credit (P-Ex. G). Learning Support was originally charged as $8,750.00 and Parent was then credited $8,333.33 when the class was dropped. Additionally, Parent was also charged $1,300.00 for a school store deposit, which pursuant to Petitioner’s Exhibit H, did not include things such as books or supplies. Further, Parent chose to participate in optional tuition refund insurance in the amount of $3,732.00 (P-Ex. G, H).

Reasonableness of the cost of the services which a Parent has obtained for a child may be considered in determining whether equitable considerations support the parent's claim for reimbursement (Florence County School District Four v. Carter by Carter, supra). When the cost of the services which a parent has obtained is excessive, a hearing officer or reviewing officer may properly limit the parent's claim for reimbursement (Application of a Child with a Disability, Appeal No. 97-10). I do not find that the optional tuition reimbursement insurance and the school store deposit are proper expenses to be included within an award of tuition reimbursement.

Based upon the foregoing, I find that the equity requires reimbursement in the amount of $62,616.67, which breaks down as follows: $62,200.00 for tuition, room, and board as well as $416.67, which is the portion of Learning Support that Student received prior to dropping the program.

TRANSPORTATION EXPENSES:

Entitlement to the provision of transportation to and from school by the District is warranted where “a student lives within 50 miles of a nonpublic school which a child with a handicapping condition attend, if such child has been so identified by the local committee on special education …”. New York State Education Law § 4402 (2)(d).   Here the Student resides more than 50 miles away from the Private School. Student resides at REDACTED, and the Private School is located at REDACTED, which is approximately REDACTED miles away.

Therefore, Parent failed to establish that Student meets the statutory geographic and distance requirement and thus, a claim for transportation to and from School for the 2019/2020 school year is denied.

DECISION:

Based on a review of the record and the facts mentioned above, I find that Respondent failed to provide Student a FAPE during the 2019/2020 school year. I further find that the Parent’s unilateral placement at the Private School was appropriate. I further find that the Parent is entitled to a reimbursement and/or funding in the amounts discussed below but is not entitled to transportation costs.

ORDER:

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

  • • ORDER: That the New York City Department of Education is directed to reimburse the parent and/or directly pay the entire cost of Student’s 2019/2020 placement at the Private School, including during any periods of remote learning. Said payment is to be made within thirty (30) days of the submission of all signed contracts and proof either of direct payment or payment liability and is to be made in the amount of $62,616.67.

SO ORDERED

DATED: February 21, 2022

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 of 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 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, and proof of service with the Office of State Review of the State Education Department within two days after the service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

APPENDIX A – PERSONALLY IDENTIFIABLE INFORMATION

REDACTED a minor, by and through his parents, REDACTED v. New York City DOE,

CSE Region REDACTED

Student: REDACTED

Parent: REDACTED

Private School: REDACTED

Chair of Learning Support: REDACTED

APPENDIX B – ADMITTED EXHIBITS

REDACTED a minor, by and through his parents, REDACTED v. New York City DOE,

CSE Region REDACTED

IHO EVIDENCE

EXHIBIT

DESCRIPTION

DATE

PAGES

I

Appointment Notice

10/18/2021

2

PARENT EVIDENCE

EXHIBIT

DESCRIPTION

DATE

PAGES

A Impartial Hearing Request 11/6/2020 3

B REDACTED Program Description Letter Undated 2

C 2019-2020 Class Schedule Undated 1

D Ten Day Notice Letter 8/20/2019 1

E Spring Term Report Card 6/17/2020 5

F Fall Term Report Card 11/26/2019 5

G Tuition Affidavit 5/12/2021 1

H Enrollment Contract 6/18/2019 3 DEPARTMENT OF EDUCATION EVIDENCE None

Footnotes

[1] Personally identifiable information is attached as Appendix A to this decision and must be removed prior to public distribution.

[2] Petitioner’s Exhibits will be referred to as “P” followed by “Ex” and the corresponding letter and Respondent Exhibits will be referred to as “R” followed by “Ex” and corresponding exhibit number. When citing any exhibit, the third range represents the page number within the referenced exhibit. Impartial Hearing Officer’s Exhibits will be marked “IHO” followed by “Ex” and then the exhibit Roman numeral.

[3] In 2004, Congress reauthorized the Individuals with Disabilities Education Act as the Individuals with Disabilities Education Improvement Act. See Pub. L. No. 108-446, 118 Stat. 2647 (Dec. 3, 2004), effective July 1, 2005. The amendments provide that the short title of the reauthorized and amended provisions remains the Individuals with Disabilities Education Act. See Pub. L. 108-446, § 101, 118 Stat. at 2647; 20 U.S.C. § 1400 (2006) (“This chapter may be cited as the ‘Individuals with Disabilities Education Act.”).