New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 550796 - NYC: 207082

FINDINGS OF FACT AND DECISION

Case Number: 207082

Student’s Name:^[1] REDACTED (“STUDENT”)

Date of Birth: REDACTED

School District: New York City Department of Education Hearing Requested by: REDACTED and REDACTED (collectively referred to as “Parent”)

Request Date/Date Complaint Filed: March 4, 2021

Date(s) of Hearing: June 22, 2022; August 8, 2022

Actual Record Closed Date: April 11, 2023

Date of Decision: April 25, 2023

Date of Distribution if Different than Decision Date:

Hearing Officer: Amy Lynne Itzla, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 22, 2022

For the Student:

REDACTED, Attorney For the DOE:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 8, 2022

For the Student:

REDACTED, Attorney

REDACTED, Principal, PRIVATE SCHOOL

REDACTED, Parent

REDACTED, Parent For the DOE:

REDACTED, District Representative

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on the Parent’s Due Process Complaint (“DPC") filed on or about March 4, 2021. (Parent Exhibit A)^[2] The undersigned IHO was appointed to this matter on December 7, 2021, by the New York City Department of Education (“DOE”).

A hearing was held on June 22, 2022, and August 8, 2022. It was a closed hearing, conducted by video/teleconference, with the presence of a court reporter to create a written transcript. The Parent was represented by REDACTED, Esq. The DOE was represented by REDACTED, District Representative. A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision. The record was closed on April 11, 2023.

In scheduling the hearing date, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]

JURISDICTION

The due process hearing was held and the Findings of Fact and Decision in this matter is being issued pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

STUDENT was REDACTED years old at the beginning of the 2019-2020 school year. He had been classified by the DOE, through its Committee on Special Education (“CSE”), as a student with an Intellectual Disability. The CSE convened on March 5, 2019, to develop an Individualized Education Program (“IEP”) for STUDENT. for the 2019-2020 school year.

By letter to the DOE dated August 20, 2019, through counsel, the Parent described the deficiencies in the IEP. (Parent Exhibit B) The Parent also informed the DOE that when they contacted the proposed school placement, they were told to call back in September to arrange a visit. In addition, the Parent expressed their continued willingness to consider any recommended program or placement. The Parent notified the DOE that they would be placing STUDENT at the REDACTED (“PRIVATE SCHOOL”) for the 2019-2020 school year and would be seeking funding/reimbursement from the DOE.

The Parent’s position is that the DOE failed to offer a Free Appropriate Public Education (“FAPE”) to STUDENT for the 2019-2020 school year, that PRIVATE SCHOOL was an appropriate placement for him, and that the equities favor the Parent. The Parent is seeking direct tuition payment by the DOE for the tuition paid to PRIVATE SCHOOL for STUDENT for the 2019-2020 school year.

POSITIONS OF THE PARTIES

THE DOE’S CASE

On the first day of hearing, June 22, 2022, the DOE appeared and was unprepared to proceed. The only matter that could be addressed during the scheduled hearing was the admission of the Parent’s exhibits into evidence. The DOE confirmed that, on the next hearing date, August 8, 2022, which was scheduled by mutual agreement, the DOE would be prepared to proceed. (T. 24-28)^[3] There were 47 days between the two scheduled hearing dates.

On August 8. 2022, the DOE appeared and when asked if there had been any documents disclosed by the DOE, the representative’s response was, “So it looks like that we're not prepared today with our documents and witnesses. And you know, the District, of course, would respectfully request another day to present documents and witnesses.” (T. 36) The undersigned IHO stated the following:

And I will just note for the record that that was the request that was also made by the Department of Education at the June 22, 2022, hearing, and that is what -- the reason that we were reconvening today and didn't proceed further on that date.

And the Department of Education indicated on June 22, 2022, that the next time the hearing was scheduled, the DOE would be disclosing, and understood very clearly that we would be proceeding today, and that the DOE would be prepared. So, we are proceeding, and the Department of Education does not have documents to disclose.

(T. 36-37)

The DOE did not present a case. In addition to not submitting any documents, the DOE was also unprepared to present witnesses. The DOE representative stated the belief that any of the potential witnesses would not be available in the summer. Again, the DOE was fully involved in the scheduling of the hearing date, after being unprepared to proceed on the prior hearing date. The DOE stated that a FAPE was offered to STUDENT for the 2019-2020 school year. The DOE maintained that the recommended program and placement were appropriate for him. Again, this was presented by the DOE representative and not through witness testimony. The DOE did not present any specific challenge to the PRIVATE SCHOOL placement, except to request that, in the event there is an order directing tuition payment, the amount be reduced by the portion of the program that consists of religious instruction.

THE PARENT’S CASE The Parent presented the testimony of two witnesses: REDACTED, Principal, PRIVATE SCHOOL; REDACTED, mother; and REDACTED, father.

REDACTED, the Principal of PRIVATE SCHOOL, described PRIVATE SCHOOL as a school that “supports students who can't function in a mainstream setting, who would benefit from small classes, high level academics, social skills, life skills, and career training. Our mission is to prepare our students to be as independent as possible once they leave school.” She provided information on the credentials of the school’s staff and the professional development provided. REDACTED explained that the curriculum “is designed based on the Common Core standards, and the profile of our students. Our reading specialist and math specialist provide that for our teachers.” During the 2019-2020 school year, the school had to create a remote learning plan. REDACTED testified that, “[S]ince many of our students depend on the consistency, the routine, in order to be okay, honestly. So we — my staff did -- reached out to every family, identified who needed Wi-Fi, who needed devices. We supplied Wi-Fi and devices for students that needed it. And a day after the mayor -- the day after the city was, you know -- we went into -- we weren't able to hold sessions in person, we went virtual. We extended our day so that the students would be connected and have more stability in the trying times. And we offered mainstreaming opportunities on a daily basis. And my clinical team reached out to the students and to the families on a weekly basis to see how else -- what supports they needed.” She stated, “So it was teacher-led instruction with the assistant in the classroom, in the classroom to provide support and continue to differentiate as we had in -- while we were in-person.” The instruction was provided synchronously. Mainstreaming opportunities were provided by having “high school students, and our students were able to text various clubs to participate and to take part of virtually. So, we had a sports club, and we had a baking club, and we had a comedy club, and we had a cooking club. And students were able to opt into the club of their interest and participate with typical developing peers in those clubs.” Related services were provided live, one-on-one, through Zoom. (T. 49-55)

REDACTED described STUDENT as a “well-liked, medically fragile individual, who has a tumor in his brain. He struggles with learning new concepts but has a relatively good long-term memory. STUDENT appreciates connecting to peers, and generally gravitates to more typically developing peers, peers that are more socially savvy than he is. He also has a seizure disorder.” “He requires instruction to be taught many times in order for him to retain info. He needs opportunity to practice it and experience the concepts. Lots of visualization. He requires, very often, one-on-one instruction in order to make progress and learn.” (T. 55-56) REDACTED testified that STUDENT has an IQ of 63 and is medically fragile. The tumor pressing on his brain makes learning even more difficult. REDACTED stated that “[W]e actually reviewed his - - he has a neurological report, which we reviewed with a psychologist and a neuropsychologist to understand STUDENT’s learning needs.” The tumor is unique and there is not a lot of research or case studies based on STUDENT’s profile. “STUDENT is a unique student and learner, and has certain strengths, yet significant weaknesses.” STUDENT’s seizures were monitored by all staff, but primarily the assistant in the classroom. He required “extra instruction time in order to master and learn skills.” The class was taught using “a lot of real world application, a lot of concrete practical manipulatives.” STUDENT received “a lot of one-on-one instruction.” (T. 60-61; 77-78)

During the 2019-2020 school year, STUDENT was in a class with a total of eight students, one teacher, and one assistant. He received one-on-one instruction from the teacher and assistant very often. Many of the other students also had intellectual disabilities. STUDENT was on a relatively similar academic level with his classmates. He had a similar IQ but required more repetition to master concepts. He was in the middle of his classmates socially. There were two teachers, at different times, for STUDENT’s class who are both New York State-certified special education teachers. The assistant teacher, who has worked at the school for over eighteen years, is, by profession, a nurse. In addition to serving as the assistant teacher, she monitored STUDENT, who had seizures during the year and gave him the support he needed. (T. 56-58) REDACTED explained how class placements and groupings are made: “We do an assessment, and we identify, and we look at IQ. So, we have the academic abilities, the IQ, the age, and the social emotional. And that's how we determine class placement.” (T. 76)

Prior to the pandemic, STUDENT had the opportunity to participate in a basketball league with typical developing peers. There were other opportunities as well, within the community, such as “Kindness Day,” during which students chose different ways to give back to the community. Once the pandemic began, STUDENT participated in daily integrated clubs he could select and join with a variety of choices. (T. 73-74)

REDACTED explained that “prayer,” on STUDENT’s schedule, is among the electives that students can select and that was the one he selected. It was a half an hour on a daily basis. STUDENT participated in “vocational training,” which involved going out with a job coach to a job site to work on specific skills to become independent when he leaves school. He worked at a restaurant and loved it. He then went to a culinary training class where he learned how to follow recipes and prepare food. That class also included travel training. STUDENT’s “Judaic studies” class studies concepts, such as Jewish holidays, that would help with integration into his mainstream community. It was considered a religious class. REDACTED also described STUDENT.’s STEM class and Life Skills class. STUDENT also had physical education, occupational therapy, and computers, among the classes on his schedule. His classes had eight students, one teacher, and one assistant. ELA was taught in small groups, with STUDENT being taught one-on-one for a challenging skill such as decoding. He was also taught one-on-one for math instruction. (Parent Exhibit D; T. 61-67; 69-70)

REDACTED stated that STUDENT made progress in ELA during the 2019-2020 school year. He increased his sight word bank, became more fluent in his “CVC” words and other letter pairings, and improved his decoding skills. With comprehension, he learned how to summarize a story that he listened to or read with support. He also made progress with his writing skills, including writing two sentences with proper punctuation, signing his name, and writing his name and the date. (T. 67-69) REDACTED also described the progress made by STUDENT in math. He was able to add and subtract by counting by twos. He learned by using applied real life problems for addition, subtraction, and multiplication. (T. 70) REDACTED met with STUDENT’s teachers every two weeks and participated in a monthly team meeting with them as well. (T. 59) STUDENT’s progress was measured based on “pre and post teacher unit plans, based on observation, based on class participation, and student work.” It was also measured using teacher-made assessments. (T. 72; 83)

PRIVATE SCHOOL provides related services by providers who are licensed by New York State in their respective areas. STUDENT received speech therapy, occupational therapy, and counseling, all individually, during the 2019-2020 school year. The services were provided outside of the classroom “with a heavy communication and collaboration between a related service provider and classroom teachers. This way, STUDENT would be able to generalize it into - - they were able to help STUDENT generalize it into the class setting.” (T. 70-72)

REDACTED testified that a class of twelve students with one teacher would be a very difficult setting for STUDENT to make progress in and would possibly be dangerous, since he required constant medical monitoring. To make academic progress, STUDENT requires a lot of differentiation and a lot of one-on-one support. (T. 74) REDACTED stated that PRIVATE SCHOOL was an appropriate placement for STUDENT for the 2019-2020 school year because:

PRIVATE SCHOOL supported him, created an environment where he can make progress academically and socially. STUDENT had the support he needed to make progress in reading and math. He received instruction. He received one-on-one support in order to develop and master and move on to further skills in career training. He had exposure to peers that were functioning on a higher level to him, both at PRIVATE SCHOOL. STUDENT made friends with students that were on our Regents track and students from the community. And STUDENT made progress because of all the supports that he had at PRIVATE SCHOOL. (T. 74-75)

REDACTED is STUDENT’s mother. She explained that, at age five and a half, STUDENT started having delays and regression. He was in a mainstream school. After he collapsed one day, and was brought to the hospital, REDACTED found out he had a tumor. After that, he needed special education. He needs a very small setting without a lot of distraction and needs to be taught with a lot of repetition. (T. 86-87)

REDACTED testified that, “He does love to learn. He, you know, he does want to engage and be part of a classroom. So, I mean, I think that’s a strength. It’s just very hard for him to retain information. And he loves to socialize, and, like, get to know people and, like, you know, talk to them. So that’s one of his strengths.” (T. 99-100) REDACTED participated in an IEP meeting for STUDENT for the 2019-2020 school year. The CSE had not conducted any updated evaluations prior to the meeting. There was no classroom observation or vocational assessment. There was no updated speech and language evaluation, occupational therapy evaluation, or psycho-educational evaluation. The CSE recommended a 12:1:1 classroom setting. REDACTED stated that she told the CSE that would not be appropriate for him because of the size and distractions. She said the CSE believed that was all they could provide to him based on his social level. REDACTED received a placement recommendation for 75 K 21. When she called the school, she was told that she had to wait to visit until September, which she did. REDACTED described the visit to the school: “It was this really big, massive building. We went in. There was like a lot going on. People coming and going. Kids with a lot of different disabilities. The representative said she would show us some 12:1:1 classrooms, but she didn’t know which one STUDENT would be placed in. So, we went to look at them. We felt like there was a lot going on in the classroom. There were some teachers that weren’t really even paying attention. There was a teacher that was reprimanding a student. That’s basically - - that’s it.” REDACTED stated that she did not think the placement was appropriate for STUDENT because there was too much going on in the school. “All the different classes were, like, in different locations, so he’d have to move from, like, class to class. I felt that would be too much. I wasn’t sure about the level of the students in the classroom. They were very different levels socially. And, also, there were a lot of students with disabilities. I felt like that would really distract STUDENT. Like, there were kids in wheelchairs or feeding tubes. And he’s very fixated on these things. Like, I felt like that would be a big distraction for him.” (T. 88-93)

REDACTED stated that, through Parent’s attorney, a letter was sent to the CSE, to advise them of our concerns. Since we disagreed with the CSE, STUDENT. attended PRIVATE STUDENT for the 2019-2020 school year. REDACTED testified that she was satisfied with his placement there. She testified that, “They had a smaller class setting. They had a lot of support for him. The peers were at the same level as - - higher level. So, I felt like that would be very important to him socially. They had great books, programs. They were - - like, they had reading specialists going in. So, we really felt like he would get the right support he needed.” REDACTED also stated that she was satisfied with the remote learning program provided by PRIVATE SCHOOL and that STUDENT did really well. (Parent Exhibit B; T. 93-96)

REDACTED is STUDENT’s father. He testified that the tuition owed to PRIVATE SCHOOL for the 2019-2020 school year is $98,000 and he is obligated to pay it. He is seeking payment from the DOE directly to PRIVATE SCHOOL. (Parent Exhibits H and I; T. 103-105)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The DOE has the burden of establishing that it offered a FAPE to STUDENT. (R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-185 [2d Cir. 2012]; Educ. Law § 4404[1][c]). 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 (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E., 694 F.3d at 189-190; 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. Fla. 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 indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (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]). 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 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 school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA 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" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations 5 omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (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'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see 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) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see 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).

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 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), 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 CFR 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 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).

The DOE claimed that an appropriate program recommendation and school placement were offered to STUDENT for the 2019-2020 school year and, therefore, the DOE had met its obligation to him. This claim was not supported by anything other than the DOE’s representative making the assertion. There is nothing in the record to substantiate the DOE’s position in this case. In addition to the DOE’s own inability to establish that a FAPE was offered and failure to meet its burden, the Parent’s witnesses addressed the recommended program and placement. Their persuasive testimony corroborated the Parent’s allegation that the program and placement were inappropriate for STUDENT There is nothing in the record on which to base any other conclusion. The DOE failure to offer a FAPE to STUDENT for the 2019-2020 school year.

The Parent has the burden of establishing the appropriateness of the program they provided to STUDENT. (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, they must demonstrate that the services offer an educational program which meets the student’s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29; Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363; Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105 [2d Cir. 2007]) The standard used to measure the appropriateness of the parent’s placement is “not perfection.” (M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 [2d Cir. 2000]) “The issue turns on whether a placement - public or private- is reasonably calculated to enable the child to receive educational benefits.” (Gagliardo, 489 F. 3d at 112)

I find that the Parent has prevailed with respect to the appropriateness of STUDENT’s placement at PRIVATE SCHOOL. Those who know STUDENT strongly agreed that the special education program and services provided to STUDENT by PRIVATE SCHOOL, in a small, special education classroom, with mainstreaming opportunities, was appropriate for him. The program was able to address his unique needs and provide individualized instruction, including one-to-one support, as needed. His medical needs, including the unpredictable potential for a seizure, were addressed by having support in place within the classroom. The PRIVATE SCHOOL program was able to support STUDENT academically, socially, and emotionally. In addition, he participated in a vocational program, which included the support of a job coach and experiences in real-world workplaces. This program was designed to support STUDENT’s independence, generalization of skills, acquisition of practical job skills, and prepare him for life beyond school. STUDENT made progress in all domains due to the PRIVATE SCHOOL program being tailored to his individual needs. REDACTED and REDACTED provided persuasive and unrefuted testimony and supporting evidence to this effect. The witnesses strongly affirmed the appropriateness of the program to address STUDENT’s individual and complex needs. It was the consensus of the witnesses that the program was reasonably calculated to allow STUDENT to receive educational benefits and make meaningful progress. REDACTED and REDACTED both described the progress STUDENT made during the 2019-2020 school year. Progress was also documented in the PRIVATE SCHOOL Spring 2020 Progress Report. (Parent Exhibit E)

It must be emphasized that the DOE did not raise any challenge to the appropriateness of the PRIVATE SCHOOL program, except to ask that any tuition awarded be proportionately reduced by the amount of religious instruction provided. There has been no other aspect of the program with which the DOE disagreed. I find that the Parent has prevailed with respect to the appropriateness of STUDENT’s placement at PRIVATE SCHOOL for the 2019-2020 school year.

The final criterion for an award is whether the Parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). An award may be impacted by a parent’s failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026).  In the absence of evidence demonstrating that a parent failed to cooperate in the development of the IEP, or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support an award in favor of the parent. (Application of a Child with a Disability, Appeal No. 04-049).

There were no assertions made by the DOE with regard to any equitable consideration that would preclude or adversely affect an order in favor of the Parent, with the exception of a reduction of any tuition order based on religious instruction. The record clearly established that the Parent actively participated in every aspect of the process in good faith. The Parent cooperated and communicated with the DOE. There is absolutely no basis on which to reduce or modify the remedy for the Parent. The DOE’s request that any tuition award be reduced to account for religious instruction or activities was unsupported and not persuasive.

ORDER

1. The DOE failed to provide a FAPE to STUDENT for the 2019-2020 school year;

2. The Parent’s unilateral placement of STUDENT at PRIVATE SCHOOL was appropriate for the 2019-2020 school year;

3. There are no equitable considerations which would reduce or bar an award of reimbursement; and, therefore,

4. The DOE shall immediately make direct payment to PRIVATE SCHOOL for the tuition for STUDENT for the 2019-2020 school year in the amount of $98,000. Proof of the amount owed has already been established. (see Parent Exhibits H, I).

SO ORDERED.

DATED: April 25, 2023 Amy Lynne Itzla, Esq.

Amy Lynne Itzla Esq.

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.

SUBMIT THIS PAGE TO THE PARENT AND SCHOOL DISTRICT ONLY. DO NOT SUBMIT TO THE NYSED.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Letter Description Date Pages

A Impartial Hearing Request 4/4/21 7

B Ten Day Notice 8/20/19 2

C PRIVATE SCHOOL Program Description 11/25/19 1

D PRIVATE SCHOOL Class Schedule 2019-2020 1

E PRIVATE SCHOOL Spring 2020 Progress Report 2019-2020 5

F PRIVATE SCHOOL Remote Learning Plan 2019 1

G PRIVATE SCHOOL Zoom Schedule 2019 2

H PRIVATE SCHOOL Enrollment Contract 11/8/18 1

I PRIVATE SCHOOL Tuition Affidavit 8/28/19 1

Footnotes

[1] Personally identifiable information is attached to this decision as Appendix A, “Redaction Identification Page,” and must be removed prior to public distribution.

[2] A more detailed list of the admitted exhibits is attached to this decision as Appendix B, “Documentation Entered Into the Record.”

[3] References to the transcript are indicated by “T.” followed by the page number(s).