Impartial Hearing Decision

FINDINGS OF FACT & DECISION

Case Number: 207561

Student Name: [REDACTED] (hereinafter referred as "Student")

Date of Birth: [REDACTED]

School District: [REDACTED] (hereinafter referred as "District")

Hearing Requested By: Parent

Dates of Hearings: September 28, 2022; January 31, 2023; March 14, 2023; May 1, 2023

Actual Record Close Date: July 17, 2023

Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 28, 2022

For the Student:

[REDACTED], ESQ., Attorney

For the District:

[REDACTED], DSW, District Representative

[REDACTED], School Psychologist

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 31, 2023

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

[REDACTED], Program Coordinator

For the District:

[REDACTED], DSW, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 14, 2023

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

[REDACRTED], Parent Student

For the District:

[REDACTED], DSW, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 1, 2022

For the Student:

[REDACTED], ESQ., Attorney

For the District:

[REDACTED], DSW, District Representative

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 attorneys for student and the parent in a due process complaint dated March 30, 2021. The primary issue to be determined at this hearing is whether the District offered the student a free appropriate public education ("FAPE") for the 2020/21 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 December 8, 2021, the District appointed the undersigned to serve as the IHO in this matter. See 8 NYCRR § 200.5(j)(3)(i). On July 8, 2022, a pre-hearing conference was held with the parties to clarify the hearing issues and set dates for the hearing (R. 1-6). See 8 NYCRR § 200.5(j)(3)(xi). Hearings on the merits of the matter were thereafter held on: September 28, 2022; January 31, 2023; March 14, 2023; and May 1, 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 March 30, 2021 due process complaint, the student was [REDACTED] years old (Ex. P-A). For the 2020/21 school year, the student was enrolled for instruction at [REDACTED] (hereinafter referred to as the "Private 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 a learning disability is not in dispute in this hearing (R. 33, 37; Exs. P-A, SD-1 at 1).^[3] See 8 NYCRR § 200.1(zz)(6).

In March of 2015, when the student was [REDACTED] years old and attending the sixth (6th) grade, she participated in a psychoeducational evaluation conducted by the District. On an administration of the Wechsler Intelligence Scale for Children – 4th Edition ("WISC-IV"), the student earned a Full Scale IQ Score of 84 (14th percentile). That Full Scale IQ Score fell within the Low Average range. The student's subtest scores were scattered; however, due to spread of her scores, only a relative weakness was observed on the vocabulary subtest compared to all other subtests administered. With an index score of 79 (8th percentile), the student placed within the Borderline range overall on the tasks of the Verbal Comprehension Index. The student placed within the Low Average range overall with an index score of 86 (18th percentile) on the tasks of the Perceptual Reasoning Index. With an index score of 91 (27th percentile), the student placed within the Average range overall on the Working Memory Index. The student placed within the Average range overall with an index score of 97 (42nd percentile) on the Processing Speed Index (Ex. SD-3 at 5).

In the same evaluation, the student's academic functioning was measured using the Woodcock-Johnson III ("WJ-III") Normative Update Tests of Achievement (Form A). Based on the results of the WJ-III, when compared to others at her grade level, the student's academic skills (Standard Score = 85, 15th percentile) and her ability to apply those skills (Standard Score = 82, 12th percentile) were both within the Low Average range. When compared to others at her grade level, the student's standard score was Average in brief writing (Standard Score = 93, 33rd percentile) and her standard scores were Low Average (compared to grade peers) in brief reading (Standard Score = 82, 12th percentile) and brief mathematics (Standard Score = 80, 9th percentile).

On June 12, 2020, the CSE convened to develop an IEP for the student for the 2020/21 school year. The CSE recommended that the student received the majority of her instruction in departmentalized (subject-specific) 15:1 special classes at a community school on a ten (10) month basis. The CSE also recommended that the student receive related services of individual counseling, four (4) times per week for thirty (30) minutes per session, and group speech/language therapy, two (2) times per week for thirty (30) minutes per session (R. 34; Ex. SD-1 at 15-16, 20).

On July 1, 2020, the District provided the parent with written notice of its program recommendations for the student for the 2020/21 school year (Ex. SD-4). In a separate notice also dated July 1, 2020, the District advised the parent that the student's recommended program would be implemented at [REDACTED] (hereinafter referred to as the "Public School") (Ex. SD5).

On September 1, 2020, the parent wrote to the CSE stating that she was rejecting its proposed program for the student and that she intended on unilaterally placing the student at the Private School for the 2020/21 school year at public expense (Ex. P-B). On that same day, the parent entered into an enrollment contract with the Private School for the 2020/21 school year (Ex. P-C). Thereafter, the student attended the Private School for the duration of the 2020/21 school year (Ex. P-H). This hearing ensued.

IV. POSITIONS OF THE PARTIES

A. The District

The parent's claim for tuition reimbursement and/or direct payment of the student's tuition to the Private School for the 2020/21 school year should be denied. The District offered the student a FAPE for the 2020/21 school year. The CSE's ability to reevaluate the student was impaired by emergency school closures necessitated by the COVID-19 pandemic. The parent has failed to meet her burden to show that the Private School was an appropriate placement for the student. Given the state of the parents' finances, it was unreasonable for them to incur the financial responsibility associated with the student's unilateral placement. Any award of tuition reimbursement to the parent should be reduced in proportion to that amount of time the student received religious instruction at the Private School. The parent's request for reimbursement of transportation costs should be denied (R. 27-28, 152-155, 160-161).

B. The Parent

The District should be ordered to reimburse the parent, and/or directly pay, for the student's unilateral placement at the Private School during the 2020/21 school year, including transportation costs. The District denied the student a FAPE during the 2020/21 school year. The Private School provided the student with specifically designed instruction to meet her unique educational needs. The student made significant progress in all academic areas while at the Private School. There are no equitable reasons to withhold or reduce reimbursement and/or direct payment for the private educational instruction and services provided to the student during the 2020/21 school year. Reduction of any tuition award based on the student's receipt of religious instruction at the Private School is unconstitutional (R. 149-152, 155-160; 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. 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 R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).

B. Recommended Public Program

1. Sufficiency of Evaluative Information

The parent alleges that the CSE failed to perform appropriate, comprehensive and timely evaluations of the student in her suspected areas of disability (Ex. P-A at 2).

Pursuant to the IDEA, federal and State regulations, a school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a school district need not conduct a reevaluation more frequently than once per year unless the parent and the school district otherwise agree, and must conduct one at least once every three years unless the school district and the parent agree in writing that such a reevaluation is unnecessary, see 34 C.F.R. §§ 300.303(b)(1)-(2); 8 NYCRR § 200.4(b)(4).

Pursuant to State regulation, a reevaluation of a student with a disability must be conducted by a multidisciplinary team or group that includes at least one teacher or specialist with knowledge in the area of the student's disability. See 8 NYCRR § 200.4(b)(4). The reevaluation "shall be sufficient to determine the student's individual needs, educational progress and achievement, the student's ability to participate in instructional programs in regular education and the student's continuing eligibility for special education." 8 NYCRR § 200.4(b)(4). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).

An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii); 8 NYCRR § 200.4(b); see also Letter to Clarke, 48 IDELR 77 (OSEP 2007). In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x).

A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status. See 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified. See 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).

According to the prior written notice ("PWN"), in proposing an educational program for the student for the 2020/21 school year, the June 2020 CSE relied on: a June 18, 2020 classroom observation; a June 14, 2017 IEP; and "school docs" from June 12, 2020 (Ex. SD-4 at 1). According to the school psychologist who chaired the June 2020 CSE meeting, the "school docs" included a report card for the student (R. 34, 36).

To address the parent's contention that the June 2020 CSE lacked sufficient evaluative information, a review of the documents considered by the June 2020 CSE (as set forth in the PWN) must be conducted. See Application of a Student with a Disability (New York City Dep't of Educ.), Appeal No. 23-039 at 15 (SRO May 15, 2023). However, as none of the documents the CSE relied upon in developing the student's June 12, 2020 IEP were offered for entry into the hearing record, I am precluded from evaluating the sufficiency of those assessments.

In developing the recommendations for a student's IEP and when conducting an annual review of the student's IEP, State regulations require that a CSE must consider the results of the initial or most recent evaluation, as well as the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental, and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments; and any special factors as set forth in federal and State regulations. See 8 NYCRR §§ 200.4(d)(2); (f)(iii); see also 34 C.F.R. §§ 300.324(a)-(b).

The June 12, 2020 IEP does not identify any previous evaluations or when they might have been conducted; the CSE instead relied solely on the student's "last report card" (Ex. SD-1 at 1). As a consequence, there is no basis to support a finding that the June 2020 CSE actually considered any previous evaluative information when developing its IEP for the student for the 2020/21 school year. The Second Circuit has held that the failure to memorialize which evaluative information a CSE reviewed constitutes a "serious procedural violation." See L.O. v. New York City Dep't of Educ., 822 F.3d 95 (2d Cir. 2016).^[6]

While a psychoeducational evaluation of the student from March 2015 was entered into the hearing record, the failure of the CSE to document what, if any, information from that prior evaluation was considered in developing the June 12, 2020 IEP precludes me from finding that the CSE fulfilled its obligation to consider the student's prior evaluation, and testimony from the school psychologist referencing the general availability of such materials does not suffice to overcome that conclusion. Accordingly, the CSE's failure to reference the student's last evaluation in the IEP or the PWN impedes any adjudication of the specific claims raised by the parent with respect to the sufficiency of the DOE's evaluations. As a result, I find that the CSE's failure to consider the student's prior evaluation is a procedural violation that contributed to a denial of a FAPE.

2. Present Levels of Performance & Annual Goals

In her complaint, the parent asserts that the CSE failed to develop an accurate statement of the student's then-present levels of performance in the student's IEP and failed to develop appropriate and measurable goals (Ex. P-A at 2).

Among the other elements of an IEP is a statement of a student's academic achievement and functional performance and how the student's disability affects his or her progress in relation to the general education curriculum. See 20 U.S.C. § 1414(d)(1)(A)(i)(I); 34 C.F.R. § 300.320(a)(1); 8 NYCRR §§ 200.1(ww)(3)(i), 200.4(d)(2)(i). In addition, an IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability. See 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 C.F.R. § 300.320(a)(2)(i); 8 NYCRR § 200.4(d)(2)(iii). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee. See 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3); 8 NYCRR § 200.4(d)(2)(iii)(b).

In the present case, given the District's failure to establish that the June 2020 CSE considered sufficient evaluative data about the student, as discussed above, the dearth of such information in the hearing record precludes meaningful review of the parent's claims with regard to the sufficient of the IEP's description of the student's academic, functional, and management needs or the appropriateness of the annual goals in the June 12, 2020 IEP (Ex. SD-1 at 1-14). That is, given the above deficiencies with the District's presentation of the information available to the CSE, I decline, after reviewing the entire record, to simply presume that the June 12, 2020 IEP included a full and complete description of the student's needs or annual goals aligned with those needs. See Application of a Student with a Disability (New York City Dep't of Educ.), Appeal No. 15-001 at 12-13 (SRO Feb. 25, 2014).

3. Cumulative Impact

As discussed above, the District committed several procedural violations which impeded the parent's ability to participate in the decision making process regarding the student's educational programming and, each of which, contributed to a denial of FAPE. The District failed to establish that it properly evaluated the student prior to the June 2020 CSE, that it developed an accurate statement of the student's then-present levels of performance in the student's IEP, and that it developed appropriate and measurable goals for the student. In reviewing of the cumulative effect of those procedural violations, it cannot be determined that they did not affect the substantive appropriateness of the June 12, 2020 IEP, see L.O., 822 F.3d at 123-24, by impeding the student's right to a FAPE, hindering the parent's opportunity to participate in the decision-making process, or otherwise depriving the student 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). Therefore, the cumulative effect of those procedural violations resulted in a denial of FAPE to the student for the 2020/21 school year.

C. Appropriateness of the Private School Given my finding that the District failed to provide the student with a FAPE during the 2020/21 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 parent's 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 Program Coordinator, I find that the Private School was an appropriate program for the student because it provided her with specifically designed, individualized instruction to meet her unique educational needs (R. 64-85; Exs. P-G, P-J, P-M).

Students at the Private School have various learning challenges that prevent them from fully accessing and keeping up with the mainstream educational curriculum. Enrolled students require small classes with special education instruction, and thus, are provided a modified curriculum. Almost all of the teachers at the Private School have Master's degrees, most of which are in special education (Ex. P-M at ¶ 8).

For the 2020/21 school year, there were twenty-three (23) enrolled students, 14 - 18 years of age, in grades 9 - 12. The average student-to-teacher ratio at the Private School was 5:1 (Ex. P-M at ¶ 7). During the 2020/21 school year, the student attended the twelfth (12th) grade in a class of six (6) students. All students in the class were either 17 - 18 years old. The student's program was departmentalized, so she had different teachers for each subject. The student's twelfth (12th) grade schedule had a total of eight (8) periods per school day (Exs. P-E, P-M at ¶ 15).

During the 2020/21 school year, the student received instruction in Math (Financial Literacy), English/Language Arts, Social Studies (Topics in History to include Women & Economics), and Foreign Language (Hebrew). The students in her class all had learning differences, but the root of their learning challenges was either processing or language issues, presenting in a similar fashion, and as such, she was placed with similarly situated peers (Ex. P-M at ¶ 17). The student also received related services of speech/language therapy (twice per week) and counseling (once per week) (Ex. P-M at ¶ 28).

The Private School was an appropriate setting for the student. It provided her with a modified program that allowed her to attain high school content at an accessible level. The student received a New York State Local Diploma. She made progress, as can be seen by her transcript, with the support provided at the Private School not only academically, but also socially and emotionally (Exs. P-G, P-M at ¶ 32).

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 support an award of tuition reimbursement and/or direct payment for the student's placement at the Private School during the 2020/21 school year. In letters dated September 1, 2020 and January 20, 2021, the parent provided the District with adequate written notice of her intent to make a unilateral placement of the student at the Private School at public expense (Exs. P-B, P-F). There is also no evidence indicating that the parent was uncooperative with the CSE (Exs. SD-1, SD-2) see 20 U.S.C. § 1412(a)(10)(C)(iii), nor was the cost of the student's tuition to the Private School unreasonable given the severity of the student's educational needs (Exs. P-C, P-I, SD-3), see Carter, 510 U.S. at 16.

E. Parent's Financial Obligation & Ability to Pay

At the hearing, the DOE argued that given the state of the parents' finances, it was unreasonable for them to incur the financial responsibility associated with the student's unilateral placement during the 2020/21 school year. The relevant inquiry, however, is whether the parents have incurred a financial obligation to fund the private placement and whether the parents have the ability to pay that obligation. See Application of a Student with a Disability (New York City Dep't of Educ.), Appeal No. 22-150 at 29-30 (SRO Jan. 9, 2023).

It is well settled that parents who reject a school district's IEP and choose to unilaterally place their child at a private school without consent or referral by the local educational agency do so at their own financial risk. See Burlington, 471 U.S. at 373-74; Carter, 510 U.S. at 14; Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 (2d Cir. 2020), cert. denied, 141 S. Ct. 1075 (2021), reh'g denied, 141 S. Ct. 1530 (2021); see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 356-58 (S.D.N.Y. 2009) (finding the parent in that matter had no financial standing to sue for direct retrospective payment to private placement where terms of enrollment contract absolved her of responsibility for paying tuition). In such instances, retroactive reimbursement to parents by a school district is an available remedy under the IDEA See Burlington, 471 U.S. at 370-71; see also 20 U.S.C. § 1412(a)(10)(C)(ii); 34 C.F.R. § 300.148; Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192.

Alternatively, with regard to fashioning equitable relief, courts have determined that it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so. See Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011); see also E.M. v. New York City Dep't of Educ., 758 F.3d 442, 453 (2d Cir. 2014) (noting that "the broad spectrum of equitable relief contemplated [by] the IDEA encompasses, in appropriate circumstances, a direct-payment remedy"[internal quotation marks omitted]). It has been held that "[w]here . . . parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief." Mr. and Mrs. A., 769 F. Supp. 2d at 428; see also A.R. v. New York City Dep't of Educ., 2013 WL 5312537, at *11 (S.D.N.Y. Sept. 23, 2013).

With respect to the parent's financial obligation, the hearing record includes an enrollment contract signed by the student's father on September 1, 2020 for the student's attendance at the Private School for the 2020/21 school year. The contract with the Private School set out a base tuition that included the cost of academic programming and related services for the student. The contract provided that the parent would be responsible for the tuition and supplemental costs for the student's attendance at the Private School (Exs. P-C, P-N at ¶ 6). Here, the Private School contract is sufficient to demonstrate that the parent incurred a financial obligation to pay the costs of the unilateral placement inclusive of related services.

A September 19, 2022 affidavit from the Private School's registrar indicates that the parents have made no payments toward the student's 2020/21 tuition at the Private School (Ex. PI). With regard to the parents' ability to pay, since the parents selected the Private School as the unilateral placement and their financial status is at issue, it was the parents' burden of production and persuasion with respect to whether they had the financial resources to "front" the costs of the services. See Application of a Student with a Disability, Appeal No. 12-036; Application of a Student with a Disability, Appeal No. 12-004; Application of the Dep't of Educ., Appeal No. 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041).

The parents here have satisfied their evidentiary burden and have demonstrated their inability to pay the student's tuition to the Private School for the 2020/21 school year. The student's father was unemployed between 2017 and 2022. In his current position, the father's annual income is equivalent to the student's outstanding tuition balance at the Private School (Exs. P-C, P-I, P-N at ¶¶ 5, 7). The student's mother submitted tax returns for calendar years 2020 and 2021 which reflect that her annual income during those years was below the student's outstanding tuition balance at the Private School (Exs. P-K, P-L). The District, therefore, will be directed to directly fund the student's 2020/21 tuition at the Private School.

F. Relief

The District asserts that any award of direct payment to the Private School should be reduced by twenty-five percent (25%) – to account for the amount of time the student received religious instruction at the Private School (R. 154-155). The parent opposes any such reduction as unconstitutional (R. 156-160).

According to the student's schedule, she received thirty-six (36) hours per week of instruction at the Private School during the 2020/21 school year (Ex. P-E). In her affidavit, the Private School Program Coordinator noted that, "[i]n addition to . . . core subjects, [the student] did receive some religious inspired instruction, taught by New York State licensed Special Education teachers, as part of her programming at [the Private School]" (Ex. P-M at ¶ 31). In her testimony, the Private School Program Coordinator explained that in the student's "Navi" class, she learned about Jewish prophets, and in her "Chumash" class, she participated in Bible study (R. 73-74; Ex. P-E). The student participated in religious study in those classes for 6.4 hours per week, which constituted eighteen percent (18%) of the student's school week (Ex. P-E). Therefore, the tuition award referenced above shall be reduced by eighteen percent (18%), in recognition of that portion of the student's instructional week dedicated to religious study. 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).

G. Reimbursement of Transportation & Travel Expenses

Among other relief, the parent seeks reimbursement of $4,500 in transportation costs associated with the student's attendance at the Private School during the 2020/21 school year (R. 152).

The IDEA includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services. See 20 U.S.C. § 1401(26); see also 34 C.F.R. §§ 300.34(a), (c)(16). In addition, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs." N.Y. Educ. Law §§ 4401(1); 4402(4)(a); see N.Y. Educ. Law § 4401(2); 8 NYCRR § 200.1(ww).

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 Child with a Disability, Appeal No. 03-053 (SRO Sept. 19, 2003). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the school district must ensure that the student receives the necessary transportation at public expense. See Transportation, 71 Fed. Reg. 46576 (Aug. 14, 2006); see also 8 NYCRR § 200.1(ww). In addition, 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 Special Transportation for Students with Disabilities, VESID Mem. (Mar. 2005).^[7] Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. See Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 (11th Cir. 1997); Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 (D.S.D. 1997).

It appears that the parent seeks reimbursement for travel expenses as a related service as part of the student's unilateral placement. However, special transportation was not recommended by CSE for the student in the June 12, 2020 IEP (Ex. SD-1 at 19). Moreover, the student's mother did not testify as to specific expenses incurred for transportation of the student to and from the Private School, no documentary evidence was submitted at the hearing concerning transportation costs or expenditures, and the parent's counsel did not question the student's mother during the impartial hearing about reimbursement of transportation related expenses. As a result, the hearing record does not contain any evidence of travel expenses for the student's attendance at the Private School.

Given the lack of evidence of any parental expenditures for the student's transportation, I decline to award reimbursement of travel expenses. See Application of a Student with a Disability (New York City Dep't of Educ.), Appeal No. 21-057 at 14-16 (SRO Apr. 29, 2021).

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 2020/21 school year is SUSTAINED; and

2. Within thirty (30) days of its receipt of this Order, the District shall directly pay $39,360.00 to the Private School representing the net tuition and fees (minus 18%) associated with the student's placement there for the 2020/21 school year.

Dated: July 30, 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

PARENTS

A. Due Process Complaint/Impartial Hearing Request, 3/20/21, 2 pgs.

B. Ten Day Notice, 9/1/20, 1 pg.

C. Tuition Contract, 9/1/20, 1 pg.

D. Prior Written Notice (Notice of Recommendation), 6/29/20 (printed), 3 pgs.

E. Student Schedule, 2020/21, 1 pg.

F. Amended Ten Day Notice, 1/20/21, 1 pg.

G. Student Transcript, 6/17/21, 2 pgs.

H. Attendance Record, 6/23/21, 1 pg.

I. Tuition Payment Affidavit, 9/19/22, 1 pg.

J. Remote Learning Plan, 2020/21, 2 pgs.

K. Form 1040 U.S. Individual Income Tax Return, 2020, 2 pgs.

L. Form 1040 U.S. Individual Income Tax Return, 2021, 2 pgs.

M. Affidavit – Program Coordinator, 1/30/23, 7 pgs.

N. Affidavit – Parent, 3/12/23, 2 pgs.

SCHOOL DISTRICT

1. Individualized Education Program (IEP), 6/12/20, 22 pgs.

2. Attendance Page, 6/12/20, 1 pg.

3. Psychoeducational Evaluation, 3/31/15, 8 pgs.

4. Prior Written Notice (Notice of Recommendation), 7/1/20, 4 pgs.

5. School Location Letter, 7/1/20, 2 pgs.

IMPARTIAL HEARING OFFICER

I. Extension Order, 1/22/22, 1 pg.

II. Extension Order, 2/21/22, 1 pg.

III. Extension Order, 3/23/22, 1 pg.

IV. Extension Order, 4/22/22, 1 pg.

V. Extension Order, 5/22/22, 1 pg.

VI. Extension Order, 6/21/22, 1 pg.

VII. Extension Order, 7/21/22, 1 pg.

VIII. Extension Order, 8/20/22, 1 pg.

IX. Extension Order, 9/19/22, 1 pg.

X. Extension Order, 10/19/22, 1 pg.

XI. Extension Order, 11/18/22, 1 pg.

XII. Extension Order, 12/18/22, 1 pg.

XIII. Extension Order, 1/17/23, 1 pg.

XIV. Extension Order, 2/16/23, 1 pg.

XV. Extension Order, 3/18/23, 1 pg.

XVI. Extension Order, 4/17/23, 1 pg.

XVII. Extension Order, 5/17/23, 1 pg.

XVIII. Extension Order, 6/16/23, 1 pg.

XIX. Extension Order, 7/16/23, 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 order to accommodate the availability of the parties' respective witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent's due process complaint. 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. 4-5, 15-16, 50-51, 85-86, 143-144, 162-163; Exs. IHO-I – IHO-XIX).

[3] Learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, as determined in accordance with section 200.4(j) of this Part. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of an intellectual disability, of emotional disturbance, or of environmental, cultural or economic disadvantage. 8 NYCRR § 200.1(zz)(6).

[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 Court in L.O. cautioned that, when a CSE fails to accurately document the evaluative data it relied on in developing an IEP, reviewing authorities or courts, often months or years later, are left to speculate as to how the CSE formulated the student's IEP; the court specifically noted "we are left to wonder whether these persistent errors and omissions in developing [the student's] IEPs are the result of the CSE's failure to consult the evaluative materials available to it at the time." L.O., 822 F.3d at 110-11.

[7] Available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf.