New York City Department of Education, Impartial Hearing Decision

NYSED # 547832 / NYC # 204327

Case Number: 204327

Student’s Name: [REDACTED] (“Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: [REDACTED], Parent (“Parent”)

Date of Hearings: November 8, 2021; December 13, 2021; December 22, 2021.

Actual Record Close Date: May 2, 2022

Hearing Officer: Virginia Tillyard

FINDINGS OF FACT AND DECISION

INTRODUCTION AND PROCEDURAL HISTORY

This case was brought before me pursuant to appointment on November 1, 2021 by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), Article 89 of the New York State Education Law, and Section 4404(1) of the New York State Education Law.

Parent filed a due process complaint (the “DPC”, Ex. A) against the New York City Department of Education (“DOE”) on November 23, 2020, challenging the DOE’s provision of a free appropriate public education (“FAPE”) to Student for the 2020-21 school year and seeking relief pursuant to the IDEA, 20 U.S.C. §1404 et seq., section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, the Americans with Disabilities Act, 42 U.S.C. § 12132, Article 89 of the New York State Education Law, and applicable state and federal regulations. Hearings were held on multiple dates. A list of the documentary evidence submitted is appended to this decision. The compliance date in this case has been extended.

BACKGROUND AND POSITION OF THE PARTIES

Student is [REDACTED] years old and has been classified with autism spectrum disorder (“ASD”). He has been placed at the [REDACTED], a private special education school in Brooklyn, New York (the “Private School”), initially by the DOE pursuant to an individualized education program (“IEP”) developed by the Committee on Preschool Education. In the DPC, Parent claims that the DOE failed to hold an annual IEP meeting for the 2020-21 school year, failed to offer any placement for the 2020-21 school year, and failed to provide Student with specialized transportation for the entire 2020-21 school year. For the 2020-21 school year Parent unilaterally placed Student in a twelve-month program at the Private School. The Parent claims that the unilateral placement is appropriate and that equitable factors support his claim. As remedies, the Parent seeks in the DPC the following, among other remedies:

(i) an order that the DOE directly fund Student’s placement at [REDACTED] for the 12-month 2020-2021 school year; and

(ii) an order for the DOE to reimburse the Parent for any out of pocket expenses associated with transporting Student during the 2020-21 school year.

The DOE was notified in advance, but did not appear at the pre-hearing conference or any subsequent hearings in this matter. In addition, I emailed the DOE’s representatives at CSE notifying them of upcoming hearing dates, and inquiring whether they would be present, but received no response.

Parent introduced a total of 15 exhibits, including two affidavits, and the in person testimony of the affiants: [REDACTED], a New York state licensed behavioral analyst, Board Certified Behavior Analyst (“BCBA”) and BCBA Supervisor at the Private School (“Placement Witness”) and Student’s father. All Parent’s exhibits were admitted without objection. Parent made an opening and a closing statement on the record.

FINDINGS OF FACT AND DECISION

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a FAPE, 8 NYCRR § 200.5(j)(4)(i). Under the IDEA and New York law, where there is procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE.^[1]

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

The 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 FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written individualized education program (“IEP”). 20 U.S.C. §1401(9) and (29); 34 C.F.R. § 300.13. A FAPE is further defined as “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 Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). Two purposes of the IDEA 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).

A board of education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate (2) the services selected by the parent were appropriate and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993); see also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 (Oct. 15, 2007). These three conditions constitute the Burlington/Carter test in a tuition reimbursement case.

Prong I

According to the U.S. Supreme Court, a school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Rowley, supra. In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15- 827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). In addition, Endrew F. stated that “a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. The school is 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”, 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.” Id.

Endrew F. held that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Although it 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.” 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. further stated “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.” Finally, Endrew F. declined to revisit its earlier statement in Rowley: “we do not hold … that every handicapped child who is advancing from grade to grade in a regular public school system is automatically receiving a free appropriate public education as required by the IDEA.” Rowley at note 25. Last, the Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F., supra.

A student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See 34 C.F.R.§§300.114 through 300.117; Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

The Second Circuit has confirmed that its pre-existing FAPE standard is consistent with the Supreme Court’s decision in Endrew F. Mr. P. & Mrs. P. v. West Hartford Board of Educ., 885 F.3d 735 (2d Cir. 2018). Under New York precedent, the IDEA is satisfied if the school district “provides an IEP that is likely to produce progress, not regression,” and “if the IEP affords the student with an opportunity greater than mere ‘trivial advancement’.” Mr. P. & Mrs. P., supra (internal citations omitted). Courts consider the appropriateness of an IEP prospectively, at the time it was developed. Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982); R.E. v New York City Dept. of Educ., 694 F.3d 167 (2d Cir. 2012).

An appropriate program begins with an IEP which accurately reflects the results of (1) the 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 transition 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 Walczak, supra. “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. The IDEA requires a school district to have a written IEP in effect for each child with a disability at the "beginning of each school year," and the parents of each disabled child must be provided with a copy of the IEP. See Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005); 20 U.S.C. §§ 1414(d)(1)(A)(i), 1414(d)(2)(A); 34 C.F.R. § 300.323(a). In New York, the twelve month school year begins on the first day of July of each year. See N.Y. Educ. Law § 2(15). The IDEA does not specify the date by which parents must receive a final IEP. The Second Circuit has held that the DOE fulfills its legal obligations by “providing the IEP before the first day of school." See Cerra v. Pawling.

The DOE’s Case The DOE has the burden of proving that it offered Student a FAPE for the 2020-21 school year. By failing to appear in this case, or present any arguments, exhibits or testimony regarding the 2020-21 school year, the DOE has effectively conceded that it did not provide Student with a FAPE for that year. The DOE has not, therefore, proved by a preponderance of the evidence that its proposed program and placement for the 2020-21 school year were appropriate. Accordingly, I find that the DOE has failed to prove that it provided a FAPE for the 2020-21 school year. Parents have met the first of the three Burlington/Carter criteria for tuition reimbursement.

Prong II

Parents seeking reimbursement have the burden of proving that the unilateral placement was appropriate. In order to meet this burden, the Parent must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student”. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007). However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ. Of Hyde Park, 459 F.3d 356, 364 (2d. Cr. 2006). The private placement need not provide certified special education teachers or have its own IEP for a student. Parental placements are not subject to the same mainstreaming requirements as a school district placement. Id. Subject to those exceptions, however, the same considerations and criteria that apply in determining whether a school district's placement is appropriate should be considered in determining the appropriateness of the parents' placement. Gagliardo, 489 F.3d at 112. 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 Second Circuit has provided guidance in determining whether parents have met their burden of proving that a unilateral private placement “provides educational instruction specifically designed to meet the unique needs of a handicapped child":

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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, supra, 489 F.3d at 112 (quoting Frank G, 459 F.3d at 364-65).

The burden now shifts to the Parent to prove the appropriateness of the private placement.

The Parents’ Case The Parent presented the testimony of Student’s father and the Placement Witness in support of their position that the placement was appropriate. The testimony and documentary evidence shows that it was.

Student’s Needs

Student’s father’s affidavit, Ex. P, the Placement Witness’ affidavit, Ex. O, and Student’s IEP dated May 10, 2018 (IHO Ex. I, the “2018 IEP”)^[2] provide evidence of Student’s needs..

Student is diagnosed with autism spectrum disorder. He has shown signs of significant developmental delays since he was very young. Ex. O-2. He is described as a verbal student, but substantially delayed in all developmental areas. He has difficulties with social interactions, is highly distractible, and appears to have poor memory skills. Ex. N-7. He struggles with using age appropriate language and communication. Ex. O-1.

The 2018 IEP classifies Student as a student with autism, and recommends a twelve-month placement in a full time special class (6:1+3) with related services of related services of Occupational Therapy (2x30 individually), Speech-Language Therapy (“SLT”) (2x30), and Parent Counseling and Training. It notes including fine motor/graphomotor skills, sensory processing skills, visual motor/visual perceptual skills, and self cares skills. It notes Student has significant developmental delays and recommends alternate assessment instead of district wide assessment administered to general education students. It also reports that Student engaged in dangerous behaviors and a school bus, including hitting the driver and attempting to open the emergency door; it recommends specialized transportation and a daily 1:1 transportation paraprofessional. It notes reading and writing and math delays that interfered with Student’s ability to decode and compose text and solve computations an an age appropriate manner. Ex. I-6.

The 2018 IEP reports that Student needed a behavioral intervention plan. It says that every half hour, for fifteen minutes, Student would rip, throw items, hit teachers and grab papers, try to get out of his desk, and become distracted for five minutes with severe intensity after a trigger. During the 2020-21 school year, Student was still exhibiting challenging behaviors, such as throwing objects at peers and adults, hitting others, and running out of rooms. Ex. N-7. He has difficulty attending to instruction and can act impulsively. He struggles with self-regulation and can throw things and be unsafe when he cannot express himself well or when he feels frustrated. Ex. O-1. He also employs self-injurious behaviors as a means of coping with frustration, including banging his palm into his forehead, slapping his upper arm, and biting his hand. Ex. N-7.

As a result of his needs, he requires a highly structured program with significant levels of one-on-on support in order to make appropriate progress. Ex. N-7. Again according to uncontroverted allegations in the DPC, the CSE also added related services of Physical Therapy (“PT”) to Student’s IEP at the meeting in February 2019. The DPC further alleges that the Parent did not receive a revised IEP thereafter, but agreed with those additions; and that the DOE implemented those additions at the Private School.

Student’s potential:

The 2018 IEP notes that Student needs the support of a special class and the related services described above to promote involvement and progression in the general education curriculum.

Private School program and methodology:

The Placement Witness’s testimony provided details of the Private School. Parent provided additional details. The Private School is a private behavioral school for children with autism spectrum disorder. Ex. N2-N3; Ex. D. The school age program includes 22 students ages five through 15 and all students have a diagnosis of ASD. Id.

All classrooms have a 6:1:3 ratio. All teachers are certified in New York State and have a Master’s degree in special education. All teacher’s assistants are certified by the DOE. Ex. N3-4. There are four BCBAs at the school who develop students’ programs and supervise the teachers. Id. The school offers SLT, PT, OT, Art Therapy, Music Therapy, and Adaptive Physical Education ("APE"). There is a sensory room that provides different types of sensory feedback (light, movement, visuals, textures), and an adaptive daily living (“ADL”) skills room in the form of a miniature apartment and grocery store. There is also a gym for APE and separate rooms for related services.

Students’ progress is tracked using individualized portfolios that are updated daily with current data, as well as graphs and progress reports. Students receive a VB-MAPP assessment and an ABLLS assessment three times a year.^[3] Ex. N5-6.

Private School methodologies The Private School uses applied behavioral analysis (“ABA”) methodology throughout the school day. Ex. N-3, N-5. Its curriculum is assessment based. Assessments used include the ABLLS-R and the VB-MAPP. Ex. D-1. Expressive language skills are assessed based on principles of behavioral analysis of language as presented by Dr. B. F. Skinner. Id. Assessments are completed three times a year by the classroom teacher. Data are collected and graphed throughout the day. Data analysis is done daily. Ex. D-1. ABA is implemented and reinforced individually for each student, based on the student’s level and how the student responds to reinforcements. Parent training is also offered. Ex. N-3, N-5.

Student’s Program at the Private School The Placement Witness’s testimony provided details of Student’s program. For 2020-2021, Student was placed in a 6:1:3 class, where he received ABA based instruction throughout the day. Ex. N-6. He received SLT in the form of two thirty-minute individual sessions per week and one individual thirty minute session per week of OT^[4] and Art Therapy once a week. Ex. N-9, N-11; Ex. E. He received ABA based instruction throughout the day, and instruction in math, literacy, communication skills and ADL. He received 1:1 instruction and had an individualized reinforcement schedule after approximately six learning units. Ex. N.

I found the Placement Witness to be credible. She is well qualified and is a supervisor at the Private School. She knows Student well. Student was enrolled in one of the four classes that she supervised during the 2020-21 school year.

Based on the foregoing, I find Student’s placement in the Private School was specifically designed to meet his unique special education needs, supported by such services as were necessary to permit him to benefit from the instruction. In addition, it fulfilled the mandate of the 2018 IEP.

Student’s Progress at the Private School With respect to a student’s progress, 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 v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007), citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 (1st Cir. 2002)). In addition to considering whether a unilateral placement is "likely to produce progress, not regression", a reviewing court must "examine the record for any 'objective evidence' indicating whether the child was likely to make progress or regress under the proposed plan." Id. (internal citations omitted).

In this case, the record shows that Student made progress in all areas of functioning. See Student’s progress reports from the Private School (Exhs. G-J). The record therefore demonstrates that it was reasonable for Parent to suppose, at the time he made the decision to place Student in the Private School, that Student would make progress there, and that Student did make progress over the 2020-21 school year. This satisfies the requirements of Rowley and Gagliardo.

Based on the record, I find, considering the totality of the circumstances, that Student’s placement at the Private School for the 2020-21 school year reasonably served his individual needs. I find that Student’s 2020-21 program and placement at the Private School was specifically designed to meet his unique special education needs, supported by such services as were necessary to permit him to benefit from the instruction. Parents have therefore met their burden in step two of the Burlington/Carter criteria for tuition reimbursement.

EQUITIES

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). Determination of whether or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not the parent cooperated with the CSE. By statute the DOE has the burden of proof as to the equities. NYS Educ. Law § 4404(1)(c)

In this case, there is nothing in the record to indicate that Parent did not co-operate with the CSE. Parent sent a timely ten-day notice to the CSE on June 17, 2020 (Ex. B) notifying the DOE that, among other things, the CSE had failed to reconvene the CSE for an annual review and failed to offer Student any placement for the 2020-21 school year. Parent notified the CSE of his intention to place Student in the Private School for the twelve month 2020-21 school year and sought direct payment and reimbursement of expenses associated with that placement, as well as specialized transportation. Ex. C.

Reasonableness of the tuition charged is also an equitable consideration. In this case, there is nothing to indicate the tuition charges are unreasonable.

Transportation

Parent contends that for part of the 2020-21 school year, the DOE failed to provide the specialized transportation that Student needed. Parent is requesting additional relief with respect to Student’s special transportation needs for the 2020-21 school year because he had to provide that transportation himself for part of the year. 8 NYCRR 200.1 (ww) provides as follows: “Special education means specially designed individualized or group instruction or special services or programs, as defined in subdivision 2 of section 4401 of the Education Law, and special transportation, provided at no cost to the parent, to meet the unique needs of students with disabilities.” The school district is responsible for providing appropriate transportation to a nonpublic school for a student with a disability classified as such by the CSE, if the school is located not farther than 50 miles from the student’s home and the student attends the school “for the purpose of receiving services or programs similar to special educational program” recommended for the student by the CSE. N.Y. Educ. Law §4402(4)(d).

Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education. See Application of a Student with a Disability, Appeal No. 15-061 at 13 (SRO July 27, 2015). The State Education Department has indicated that a CSE should consider a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, and that an IEP "must include specific transportation recommendations to address each of the student's needs, as appropriate". See Memo, Special Transportation for Students with Disabilities, available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf.

The 2018 IEP recommended special education transportation (see above). The DOE did not implement Student’s specialized transportation for a significant portion of the 2020-21 school year, and did not respond to Parent’s requests for help for several months. Exs. K, L and O. From the beginning of the twelve month 2020-21 school year until mid December of 2020, Parent had to drive Student in his own car on an hour long, four mile trip to the Private School. Exs. K and L; Ex. O, ¶¶ 20-22. This was expensive, time consuming and dangerous, since Student is impulsive and on one occasion opened the car door and darted out into traffic. Parent estimates that he transported Student 30 days for the summer portion of the twelve month school year and 58 days for the ten month portion of the school year, representing a total of 176 hours of time and 704 miles. Id. Parent requests reimbursement of a total of $4,400 dollars representing his time at $25 per hour, and a total of $404.80 for gas expenditure based on the IRS’s 2020 rate of 57.5 cents per mile. Id. I find the requests to be reasonable and am granting them as appropriate relief, based on general equitable powers.

I found the Parent to be a credible witness based on the consistency of his testimony with documentation in the record, and candid responses to my questions at hearing.

Based on the record, including documentation of Student’s needs, I further find that provision of specialized transportation between his home and the Private School was necessary in order for Student to receive a FAPE for the 2020-21 school year.

Independent neuropsychological evaluation

I issued an interim order for an independent neuropsychological evaluation on January 9, 2022, in order to further inform the record. As of the date of this decision it still does not appear to have been completed. Rather than delay a decision in this matter any longer, I am ordering the DOE to reconvene upon its receipt to consider the results.

I have reviewed the parties’ remaining contentions and claims and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding.

REMEDIES

Direct Payment of Tuition In Mr. & Mrs. A. ex rel. D.A. v. New York City Dept. of Educ., 769 F. Supp 403, 56 IDELR 42 (S.D.N.Y. 2011) the court ordered retroactive direct payment of tuition where the private school had agreed with the parents to a lenient monthly payment plan of the tuition fees pending resolution of the parents’ request for public funding. After finding that the parents had carried their burden as to each prong of the Burlington/Carter analysis, and that there was no evidence that the tuition amount sought was unreasonable, the court found that the private agreement between the parents and the school did not alter the DOE’s obligation to provide a FAPE, and concluded that its authority under §1415(i)(2)(C)(iii) was broad enough to encompass relief of retrospective direct tuition payment. It cited Connors v. Mills, 34 F. Supp. 2D 795 (N.D.N.Y 1998) in support of a direct payment award, stating: “[i]t simply cannot be the case that an act designed to grant "all" disabled children access to needed services would undermine that very goal by making such access dependent upon a family's financial situation.” As the court in Mr. and Mrs. A also noted, the United States Supreme Court has endorsed prospective relief in Burlington.^[5]

In Mr. & Mrs. A, the court said that where a parent "lacks financial resources to 'front' the costs of private school tuition, and in the rare instance where the private school is willing to enroll the student and take the risk that the parents will not be able to pay the tuition costs – or will take years to do so – parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief."

Parent has included evidence of his financial circumstances. Exs. M and O. I find that direct retrospective tuition payment to the Private School is appropriate following Burlington, D.A. v. New York City Dept. of Educ. and Connors v. Mills. The requests for tuition reimbursement, and direct tuition payment are granted. The contract is already in the hearing record (Ex. C) and need not be resubmitted before payment.

Tuition at the Private School for the 2020-21 summer session was $18,500. Tuition for the period from September 9, 2020 to June 30, 2021, was $125,000. The total is $143,500. Ex. C, pp. 1-2. Parent is contractually obligated to pay the full tuition amount. Parent remains responsible for payment in full to the Private School if unsuccessful in obtaining payment from the DOE. Id. The DOE has made partial payment pursuant to a pendency agreement. Tr. 4. Parent seeks direct payment of tuition for the 2020-21 school year.

Based on the foregoing, I am awarding direct tuition payment of $143,500 to the Private School to the extent not previously paid by the Parent or pursuant to pendency. I am also awarding reimbursement of tuition payments, if any, made by the Parent, upon proof of payment.

Transportation

I am ordering payment for special transportation as requested by the Parent.

ORDERS

IT IS HEREBY ORDERED that the New York City Department of Education is directed to fund the cost of Student’s 2020-21 twelve month school year placement as follows: (1) direct payment to the Private School ([REDACTED] school) of a total amount not to exceed $143,500, to the extent not previously paid, either by the Parent or pursuant to the pendency agreement between the parties; and (2) reimbursement of the Parent for any tuition payments made to the Private School for the 2020-21 school year, upon proof of payment; and its further

ORDERED, that the New York City Department of Education shall pay Parent a total of $4,804.80, representing the amount owed to Parent for transporting Student between the Student’s home and the Private School during the summer session of the 2020-21 school year until mid-December 2020 as set forth in “Transportation” above; and it is further

ORDERED, that the New York City Department of Education is directed to make the foregoing payments within thirty (30) days of the date of this decision; and it is further

ORDERED, that that the New York City Department of Education’s Committee on Special Education shall convene a review meeting within 30 days of receiving a copy Student’s independent educational evaluation ordered on January 9, 2022, to consider its recommendations and develop a revised individualized education services program with an appropriate classification and services in light of the findings therein.

May 2, 2022

_______________________________

Virginia Tillyard, Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov

EXHIBIT LIST

DOE EXHIBITS

None

PARENT EXHIBITS

• • 11/23/2020 Impartial Hearing Request with Delivery Confirmation (7 pp.)
• • Ten Day Notice of Unilateral Placement with Delivery Confirmation (4 pp.)
• • 6/11/2020 [REDACTED] Enrollment Agreement 2020-2021 (3 pp.)
• • 2020-2021 [REDACTED] Program Description (1 p.)
• • 2020-2021 [REDACTED] Schedule for [REDACTED] (2 pp.)
• • 7/8/2021 [REDACTED] Affidavit of Tuition (1 p.)
• • June 2021 [REDACTED] Academic Progress Report (5 pp.)
• • June 2021 [REDACTED] SLT Progress Note (3 pp.)
• • May 2021 [REDACTED] OT Progress Report (2 pp.)
• • 5/24/2021 [REDACTED] Art Therapy Progress Note (1 p.)
• • Fall 2020 - Various Emails concerning Transportation Problems (7 pp.)
• • 12/7/2021 Google Maps route from [REDACTED], Brooklyn NY to [REDACTED], Brooklyn, NY (2 pp)
• • 2020 1040 Income Tax Form for [REDACTED] (2 pp.)
• • Undated – Affidavit of [REDACTED] (11 pp.)
• • Undated - Affidavit of [REDACTED], Parent (5 pp.)

IHO EXHIBITS

I Individualized Education Program

Footnotes

[1] U.S.C. § 1415 (f)(3)(E)(ii) states: Procedural issues In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies-- (I) impeded the child's right to a free appropriate public education; (II) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents' child; or (III) caused a deprivation of educational benefits. NYCRR § 200.5(j)(4)(ii) states: In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title.

[2] It appears to have been at least partly modified pursuant to a reconvene meeting on February 27, 2019.

[3] VB-MAPP is described as standing for Verbal Behavior Milestones Assessment and Placement Program; ABLLS is described as standing for Assessment of Basic Language and Learning Skills. Ex. D.

[4] At page N-11, however, Ms. REDACTED’s affidavit states that his schedule included two sessions of OT, not one.

[5] “[I]t seems clear beyond cavil that "appropriate" relief would include a prospective injunction directing the school officials to develop and implement at public expense an IEP placing the child in a private school.”