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FINDINGS OF FACT & DECISION
Case Number: 203948
Student Name: [REDACTED] (hereinafter referred to as “Student”)
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Requested By: Parent
Dates of Hearings: September 21, 2023
November 6, 2023
Actual Record Close Date: November 7, 2023
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF THOSE WHO APPEARED ON SEPTEMBER 21, 2023
For the Student:
[REDACTED], Advocate
[REDACTED], Program Director
For the District:
[REDACTED], ESQ., Attorney
NAMES AND TITLES OF THOSE WHO APPARED ON NOVEMBER 6, 2023
For the Student:
NONE
For the District:
NONE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the advocate for the student and the parent in a due process complaint dated November 12, 2020. The primary issue to be determined at this hearing is whether the School District offered the student a free appropriate public education (“FAPE”) for the 2019/20 school year (Ex. P-A).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1).
An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii).
The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration of the resolution session period. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
On November 16, 2020, the School District appointed the undersigned to serve as the IHO in this matter. See 8 NYCRR § 200.5(j)(3)(i). A conference with the parties was held on August 18, 2023 to clarify the hearing issues and set a date for the hearing (R. 1-7). See 8 NYCRR § 200.5(j)(3)(xi). Hearings on the merits of the matter were thereafter held on September 21, 2023 and November 6, 2023.[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the November 12, 2020 due process complaint, the student was [REDACTED] years old and presented with cognitive, academic, language, motor and social/emotional needs. For the 2019/20 school year, the student was enrolled for instruction at the [REDACTED] (hereinafter referred to as the “Private School”), a full time special education school. The Commissioner of Education has not approved the Private School as a nonpublic school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with an intellectual disability is not in dispute in this hearing (Exs. P-A, P-P, P-S, P-T at ¶ 21, SD-2). See 8 NYCRR § 200.1(zz)(7). [3]
On January 9, 2019, the student participated in a psychoeducational reevaluation conducted by the School District. The Wechsler Intelligence Scales for Children – Fifth Edition (“WISC-V”) was used to assess the student’s performance across five areas of cognitive ability. As measured by the WISC-V, the student’s overall Full Scale IQ score fell in the Extremely Low range when compared to other children his age (FSIQ = 54). The student’s performance was relatively consistent across all of the primary index scores, suggesting that those abilities were developing evenly. The student also scored in the Extremely Low range on the General Ability Index (GAI = 60)), which provides an estimate of general intellectual ability that is less reliant on working memory and processing speed relative to the FSIQ (Ex. SD-8 at 3).
The student was also administered several subtests of the Wechsler Individual Achievement Test – Third Edition (“WIAT-III”) in order to evaluate his present levels of academic functioning. The student earned Very Low scores on word reading, reading comprehension and math problem solving subtests. The student earned Low standard scores on numerical operations and spelling subtests (Ex. SD-8 at 3).
On April 11, 2019, the CSE convened to develop an IEP for the student for the 2019/20 school year. The CSE recommended that the student receive the majority of his instruction in a 12:1+1 special class in a specialized school, along with related services of counseling, occupational therapy and speech therapy (Ex. SD-2 at 19-20). On June 12, 2019, the parent received a school location letter placing the student at [REDACTED] (hereinafter referred to as the “Assigned School”) (Ex. SD-1 at 5).
The parent objects to the April 2019 IEP and proposed placement for the student on a number of procedural and substantive grounds (Ex. P-A). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The School District
The allegations contained in the parent’s due process complaint lack merit in light of the documentary evidence submitted in this case (R. 26-27).
B. The Parent The School District should be ordered to reimburse the parent, and/or directly pay, for the student’s unilateral placement at the Private School for the 2019/209 school year. The School District denied the student a FAPE by failing to offer the student an educational placement which would have met his needs. In contrast, the student was provided with appropriate instruction and services at the Private School during the disputed school year. There are no equitable reasons to withhold or reduce reimbursement and/or direct payment for private educational instruction and services the student received at the Private School during the 2019/20 school year (R. 27-28; Ex. P-A).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).[4]
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
"'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.'" Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 2017). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See Rowley, 458 U.S. at 203. The "IDEA, [however,] does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 137 S. Ct. at 1001. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379.
Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'" See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Endrew F., 137 S. Ct. at 1001 (holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”); Rowley, 458 U.S. at 192.
The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, see 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v). [5] A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. See Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014); C.F. v. New York City Dep't of Educ., 746 F.3d 68, 76 [2d Cir. 2014]; R.E., 694 F.3d at 184-85. B. Recommended Public Program At the hearing, the School District asserted that the allegations contained in the parent’s due process complaint lack merit in light of the documentary evidence submitted in this case (R. 26-27). It offered no opening statement nor called any witnesses. While SROs have held that a school district may meet its burden of proof based on documentary evidence alone, see, e.g., Application of a Student with a Disability (New York State Dep’t of Educ.), Appeal No. 23-005 at 9-10 (SRO March 13, 2023), such a practice is not encouraged, see Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 19-054 at 16 (SRO July 24, 2019), and the School District’s conclusory response here to the allegations raised in the due process complaint essentially forces the undersigned to construct the School District’s arguments or guess what it may have intended to argue; a practice which the SRO does not tolerate on appeal, see Board of Educ. of the Union Free Sch. Dist. of the Tarrytowns, Appeal No. 23-021 at 14 (SRO March 30, 2023).
The relevant documentary evidence offered by the School District included a January 2019 psychoeducational reevaluation (Ex. SD-8), an April 2019 IEP (Ex. SD-2), conference minutes from the April 2019 CSE meeting (Ex. SD-3), and a June 2019 prior written notice memorializing the CSE’s recommendations (Ex. SD-1).
The January 2019 psychoeducational reevaluation included no recommendations based on the data obtained or relevant to the referral question. Instead, after summarizing the data obtained from administrations of the WISC-V and the WIAT-III to the student, the evaluator stated, “all pertinent reports should be considered at the time of the Educational Planning Conference, in order to determine appropriate program and services to be provided to [the student]” (Ex. SD-8 at 3). Such a conclusory statement failed to identify any (never mind all) of the student’s special education and related services needs, cf. 34 C.F.R. § 300.304(b)(2); 8 NYCRR § 200.4(b)(6)(ix). According to the April 2019 IEP, the CSE recommended that the student receive the majority of his instruction in a 12:1+1 special class in a specialized school, along with related services of counseling, occupational therapy and speech therapy (Ex. SD-2 at 19-20). The conference minutes note “Recom – made – discussed no change[.] School voiced concern regarding # of students[.] 12:1+(3:1) discussed as well[;] is too restrictive” (Ex. SD-3 at 2). The June 2019 prior written notice similarly states that “Special Class in a specialized school 8:1+1 and Special Class in a specialized school 12:1+(3:1) are too restrictive” (Ex. SD-1 at 2).
Here, while the April 2019 IEP, the conference minutes and the June 2019 prior written notice all stated that the CSE considered and rejected other options for the student, absent from the hearing record is any articulation of the CSE’s rationale for its recommendation. The January 2019 psychoeducational evaluation lacked any special education recommendations and the hearing record does not include testimony from any committee member, other than the private school program director (Ex. P-T at 5-6), explaining why the School District proposed or refused to take the actions set forth in the April 2019 IEP, a detailed description of other options that the CSE considered and the reasons why those options were rejected, and a description of other factors that were relevant to the CSE’s proposal. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 23-054 at 10-12 (SRO June 5, 2023).
Based on the foregoing, I find that the School District failed to meet its burden to prove that the April 2019 IEP offered the student a FAPE. C. Appropriateness of the Private School Given my finding that the School District failed to offer or provide the student with a FAPE during the 2019/20 school year, I turn to the appropriateness of the parent’s private program. With respect to the second criterion for an award of reimbursement, parents must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.
In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See Frank G., 459 F.3d at 364-65. When determining whether the parents’ unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV-692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
Based on the evidence entered into the hearing record, including the credible testimony of the Private School’s Program Director, I find that the Private School was an appropriate program for the student during the 2019/20 school year because it provided him with specifically designed, individualized instruction and related services to meet his unique educational needs (R. 31-45; Exs. P-B, P-C, P-D, P-E, P-F, P-G, P-H, P-I, P-JP-K, P-L, P-M, P-N, P-T). D. Relevant Equities The final criterion for a reimbursement/direct payment award is that a parent's claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.
The IDEA also provides that reimbursement and/or direct payment may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 300.148(d); S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 WL 344728 (S.D.N.Y. Feb. 4, 2008); M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 (N.D.N.Y. Jan. 2, 2008); Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y. Nov. 20, 2007); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-661 (S.D.N.Y. 2005).
The relevant equities here support an award of tuition reimbursement and/or direct payment for the student’s placement at the Private School for the 2019/20 school year. In a letter dated August 15, 2019, the parent provided the School District with adequate prior written notice of her intent to make a unilateral placement of the student at the Private School for the 2019/20 school year at public expense (Ex. P-C). There is also no evidence indicating that the parent was uncooperative with the CSE (Exs. SD-2, SD-3), see 20 U.S.C. § 1412(a)(10)(C)(iii), nor was the cost of the student’s tuition to the Private School and related services unreasonable given the severity of the student’s educational needs (Exs. P-O, P-P, P-Q, SD-8), see Carter, 510 U.S. at 16. E. Relief According to the student’s schedule, he received thirty-two (32) hours per week of instruction at the Private School during the 2019/20 school year (Exs. P-D, P-R, P-T at ¶ 19). In her affidavit, the Private School’s Program Director noted that the student “had prayer for 20 minutes per day Sunday – Friday” (R. 38-39; Ex. P-T at ¶ 18). The student participated in religious instruction and/or prayer for two (2) hours per week, which constituted six percent (6%) of the student’s school week (Ex. P-D). Therefore, the tuition award shall be reduced by six percent (6%), in recognition of that portion of the student’s instructional week dedicated to religious instruction and/or prayer.[6] See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 14-129 at 11 (SRO Oct. 29, 2014) (applying a nine percent reduction to a parent’s award of tuition reimbursement for religious instruction a student received at her nonpublic school).
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
1. The parent’s claim that the student was denied a free appropriate public education (FAPE) for the 2019/20 school year is SUSTAINED; and
2. Within thirty (30) days of its receipt of this Order, the DOE shall directly pay
$64,390.00 to the Private School, representing the net tuition and related service costs associated with the student’s unilateral placement there for the 2019/20 school year.
Dated: November 13, 2023
/s/ Jeffrey J. Schiro
Jeffrey J. Schiro, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 40 days of the date of this decision, the parent and/or the public school district has a right to appeal the decision to a State Review Officer (“SRO”) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plan to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DOCUMENTATION ENTERED INTO THE HEARING RECORD
PARENT
A. Due Process Complaint/Impartial Hearing Request, 11/12/20, 4 pgs.
B. Program Description, undated, 2 pgs.
C. Ten Day Notice, 8/15/19, 2 pgs.
D. Class Schedule, 2019/20, 2 pgs.
E. Classroom Routine/Expected Behavior, 2019/20, 2 pgs.
F. Behavior Modification Plan, 2019/20, 1 pg.
G. Goals & Objectives, 2019/20, 11 pgs.
H. Teacher’s Progress Report, 3/2020, 2 pgs.
I. Occupational Therapy Progress Report, 3/2020, 3 pgs.
J. Counseling Progress Report, 3/2020, 2 pgs.
K. Speech/Language Therapy Progress Report, 3/2020, 3 pgs.
L. Sensory Diet, 2019/20, 2 pgs.
M. Bi-Annual Student Evaluation, 7/2019, 9 pgs.
N. Bi-Annual Student Evaluation, 6/2020, 9 pgs.
O. Related Services Costs, 2019/20, 1 pg.
P. Enrollment Contract, 2019/20, 1 pg.
Q. Tuition Affidavit, 9/8/23, 1 pg.
R. Program Description During COVID, 2019/20, 2 pgs.
S. Attendance Record, 2019/20, 1 pg.
T. Affidavit – Program Director, 9/13/23, 6 pgs.
SCHOOL DISTRICT
1. Prior Written Notice (Notice of Recommendation), 6/12/19, 6 pgs.
2. Individualized Education Program (IEP), 4/11/19, 27 pgs.
3. Conference Minutes, 4/11/19, 2 pgs.
4. Teacher’s Progress Report, 4/11/19, 1 pg.
5. Speech/Language Progress Report, 4/11/19, 3 pgs.
6. Occupational Therapy Progress Report, 4/11/19, 3 pgs.
7. Counseling Progress Report, 3/2019, 2 pgs.
8. Psychoeducational Evaluation, 1/9/19, 3 pgs.
9. Classroom Observation, 3/28/19, 3 pgs.
IMPARTIAL HEARING OFFICER
I. Extension Order, 1/27/21, 1 pg.
II. Extension Order, 2/26/21, 1 pg.
III. Extension Order, 3/28/21, 1 pg.
IV. Extension Order, 4/27/21, 1 pg.
V. Extension Order, 5/27/21, 1 pg.
VI. Extension Order, 6/26/21, 1 pg.
VII. Extension Order, 7/26/21, 1 pg.
VIII. Extension Order, 8/25/21, 1 pg.
IX. Extension Order, 9/24/21, 1 pg.
X. Extension Order, 10/24/21, 1 pg.
XI. Extension Order, 11/2/21, 1 pg.
XII. Extension Order, 12/23/21, 1 pg.
XIII. Extension Order, 1/22/22, 1 pg.
XIV. Extension Order, 2/21/22, 1 pg.
XV. Extension Order, 3/23/22, 1 pg.
XVI. Extension Order, 4/22/22, 1 pg.
XVII. Extension Order, 5/22/22, 1 pg. XVIII. Extension Order, 6/21/22, 1 pg.
XIX. Extension Order, 7/21/22, 1 pg.
XX. Extension Order, 8/20/22, 1 pg.
XXI. Extension Order, 9/19/22, 1 pg.
XXII. Extension Order, 10/19/22, 1 pg. XXIII. Extension Order, 11/18/22, 1 pg.
XXIV. Extension Order, 12/18/22, 1 pg.
XXV. Extension Order, 1/17/23, 1 pg.
XXVI. Extension Order, 2/16/23, 1 pg. XXVII. Extension Order, 3/18/23, 1 pg. XXVIII. Extension Order, 4/17/23, 1 pg.
XXIX. Extension Order, 5/17/23, 1 pg.
XXX. Extension Order, 6/16/23, 1 pg.
XXXI. Extension Order, 7/16/23, 1 pg. XXXII. Extension Order, 8/15/23, 1 pg. XXXIII. Extension Order, 9/14/23, 1 pg. XXXIV. Extension Order, 10/14/23, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 5-6, 47-48; Exs. IHO-I – IHO-XXXIV). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[3] Intellectual disability means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(7).
[4] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[5] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives." See Endrew F., 137 S. Ct. at 1000.
[6] The student’s tuition (educational services - $57,000.00) plus related service costs ($11,500.00) equals $68,500.00 (Ex. P-O). When 6% of that total ($4,110.00) is subtracted from the sum of tuition and related service costs, the student’s net tuition and related services costs is $64,390.00.