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CASE NUMBER: 551501 - NYC: 207733
FINDINGS OF FACT AND DECISION
Case Number: 207733
Student’s Name: REDACTED
Date of Birth: REDACTED
District: REDACTED
Region: REDACTED
Hearing Requested By: Parents
Dates of Hearing: April 21, 2021
May 28,2021
June 21,2021
July 22, 2021
August 20, 2021
September 30, 2021
October 21, 2021
November 19, 2021
December 9, 2021
January 18, 2022
February 18, 2022
March 16, 2022
May 19, 2022
June 16, 2022
July 15, 2022
August 15, 2022
September 12, 2022
October 19, 2022
November 14, 2022
December/13, 2022
January 11, 2023
February 13, 2023
February 21, 2023
March 14, 2023
May 2, 2023
May 3, 2023
May 8, 2023
June 13, 2023
Actual Record Close Date: August 1, 2023
Hearing Officer: Maria R. Dispenza, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED April 21, 2021
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED May 28, 2021
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED June 21, 2021
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED July 22, 2021
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED August 20, 2021
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED September 30, 2021
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED October 21, 2021
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED November 19, 2021
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED November 19, 2021
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED December 9, 2021
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED January 18, 2022
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED February 18, 2022
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED March 16, 2022
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED April 13, 2022
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED May 19, 2022
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED June 16, 2022
For the Student:
REDACTED Attorney/Advocate
For the Department of Education:
REDACTED DOE District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED July 15, 2022
For the Student:
REDACTED Attorney/Advocate
For the Department of Education:
REDACTED DOE District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED August 15, 2022
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED September 12, 2022
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED October 19, 2022
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED November 14, 2022
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED December 13, 2022
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED January 11, 2023
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED February 13, 2023
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED February 21, 2023
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED March 14, 2023
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED May 2, 2023
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED May 3, 2023
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED May 8, 2023
For the Student:
REDACTED Attorney
REDACTED Parent/Mother
REDACTED Supervisor @ REDACTED
For the Department of Education:
REDACTED DOE Attorney
REDACTED AP @ REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED June 13, 2023
For the Student:
REDACTED Attorney
For the Department of Education:
REDACTED DOE Attorney
INTRODUCTION
On April 8, 2021, New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] (“IDEA”) by the parent (Parent) of REDACTED (REDACTED) for the school year 2020/21. The Parent requested the hearing by filing an impartial hearing request with the DOE on or about April 8, 2021. The DPC is carried under New York City (“NYC”) . The impartial hearing was held over a series of dates, to complete the record on June 13, 2023. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on August 1, 2023. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.
BACKGROUND AND POSITIONS OF THE PARTIES
For the 2020/21 school year REDACTED was a student classified by the DOE “Learning Disability” (Exhibits 1 and B). At a meeting held on February 3, 2020, the DOE developed an Individualized Education Program (“IEP”) for REDACTED and recommended that he be placed in a Special 12:1:1 Class for a total of twenty periods per week, along with related services of Counseling (1x30, 1:1) (Exhibits A, B and 1). Parent alleges REDACTED is in need of a full-time ten-month program to meet all of his academic, social, and behavioral needs as he has a lot of difficulty staying focused and paying attention to classroom assignments and instructions and has difficulty expressing himself and behaves defiantly (Exhibit A). Parent alleges the DOE failed to provide notice of an appropriate placement for REDACTED and consequently both on November 3, 2020, and December 22, 2020, the Parent notified the DOE that failing an appropriate placement from the DOE, the Parent would enroll REDACTED in the 12:1:1 special education class of the REDACTED (REDACTED ) and seek funding/reimbursement for the ten-month 2020/21 school year (Exhibits H and J).
At onset, the DOE contended a free and appropriate public education (FAPE) had been offered to REDACTED, that an IEP was developed reasonably calculated to enable REDACTED to receive educational benefit, that a recommended placement had a seat and offered the services as recommended on his IEP, that the unilateral placement was not appropriate and did not provide REDACTED with the opportunity to make educational progress and that the equities did not favor the parent (T @ 146-148).
In effort to support its allegation, the DOE submitted a documentary exhibit package consisting of seven (7) exhibits and presented two (2) witnesses, REDACTED, the school psychologist who attended the IEP meeting of February 3, 2020 and REDACTED, assistant principal at REDACTED -the recommended placement.
The Parent alleged the program developed by the DOE was inadequate to meet the needs of the student who had significant behavioral challenges, including great difficulty staying focused and organizing his thoughts. The Parent alleged REDACTED required a full-time special education setting with one teacher, one assistant, the development and implementation of a behavioral plan to address the behaviors that impede his ability to learn and the related services (T @ 221). Moreover, the parent alleged the DOE did not implement the program that they had recommended for the student, failing to offer any placement (Exhibits H and I). Consequently, for the 2020/2021 school year, the parent unilaterally placed the student at REDACTED alleging the program an appropriate placement for REDACTED. Specifically, the parent contended a customized plan to address REDACTED’s particular needs and challenges was created by the unilateral placement designed to enable him to make meaningful academic and functional progress, and more so that REDACTED made actual progress at the school during the 2020/21 school year. The parent seeks funding of the tuition expense for the unilateral placement of REDACTED at REDACTED for the 2020/21 school year.
In an effort to support its allegations, the parent provided ten (10) pieces of evidence (Exhibits A-J) and presented two (2) witnesses: REDACTED, Director at REDACTED and REDACTED, REDACTED’s mother.
FINDINGS OF FACT AND DECISION
The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) was enacted with the primary purpose to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). It is clear that the legislative intent of 20 US Code Section 1412 of the IDEA is to provide a FAPE to all children with disabilities so that these individuals may ultimately lead productive independent lives as adults, to the maximum extent possible (20 U.S.C. Sx 1400[d][1][A]; see Mrs. W v. Tirozzi, 832 F.2d 748 [2nd Cir. 1987]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22). An IEP is designed as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]). A FAPE is offered to a student when the board of education (a) complied 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 (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]). The IDEA mandates that a student with a disability be provided with a FAPE tailored to meet his unique needs and one that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___, 137 S.Ct.988, 999 (2017). A focus on the particular child is at the core of the IDEA. Endrew F., 137 S.Ct. at 999. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child’s strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student’s requirements and needs, the team must review and consider evaluations, assessment and information provided by the child’s parents, teachers and service providers and thereon determine the type of program required for the child. A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and 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 R. and Dianne R. 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 R.,2007 WL 2982269 [Oct. 15, 2007].
The case at hand is a tuition reimbursement case and is therefore governed by the holding of the U.S. Supreme Court in Burlington School Comm. v. Dept of Education (471 U.S. 359 [1985]). That case set forth a three-prong test for determining if tuition reimbursement is warranted: (1) were the services offered by the school district inadequate or inappropriate; (2) where the services selected by the parents appropriate; and (3) do equitable considerations support the parents’ claim. Recently enacted state legislation puts the burden of proof for the first prong on the school district and for the second prong on the parent (Chap. 583 of Laws of 2007).
Prong I:
An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs. Application of a Child with a Disability, Appeal No 93-12; Application of a Child with a Disability, Appeal No 93-9; Application of a Child with a Handicapping Condition, Appeal No 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487, March 11, 1983. Children must be assessed “in all areas of suspected disability” using “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information.” See 20 U.S.C. §1414(d); 34 C.F.R. § 10 (emphasis added). “An observation of the student in the student’s learning environment... to document the student’s academic performance and behavior in the areas of difficulty” is also required (see 8 N.Y.C.R.R. § 200.4[b][1][iv]; 20 USC § 1414(b)(3)(ii)). In interpreting evaluation data for the purpose of determining if a student is a student with a disability... the committee on special education and other qualified individuals must draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the student’s physical condition, social or cultural background, and adaptive behavior; and ensure that information obtained from all these sources is documented and carefully considered (see 8 N.Y.C.R.R. § 200.4[c][1] (emphasis added)). In the case of a student whose behavior impedes his or her learning or that of others, the CSE is required to consider strategies, including positive behavioral interventions, and supports and other strategies to address that behavior (see 8 N.Y.C.R.R. § 200.4[d][4]).
In the instant matter, the DOE conceded it failed to not demonstrate that it provided a free appropriate public education (“FAPE”) to the student. Particularly, while the DOE introduced evidence and called witnesses from the IEP team, REDACTED acknowledged: “it became apparent from our school placement witness, the Assistant Principal at REDACTED, that the IEP could not, in fact, be implemented as written” (T @ 214-216, IHO-1).
Based upon the foregoing, no further analysis is required as the DOE conceded it failed to meet its affirmative burden of showing that it provided a FAPE to the Student for the 2020/21 school.
Prong II:
Having determined that the DOE did not offer the student a FAPE for the 2020/21 school year, I now proceed to evaluating the appropriateness of the parents’ unilateral placement of the student at REDACTED. The parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch Dist Four v. Carter 510 U.S. 7 [1993]). The private placement need not employ certified special education teachers, Carter, supra. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of the unilateral placement: “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, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
The documentary evidence and testimony in this case establishes that REDACTED required placement in a full time special education classroom of up to 12 students, 1 teacher, and 1 assistant that could provide him with the individualized attention he needed, as well as a behavioral plan to address his behavioral and social challenges. REDACTED, director at REDACTED was familiar with the challenges, needs, and progress of REDACTED, including his academic, behavioral, and social challenges, his performance on assessments, and how he responded to instruction and intervention. REDACTED, testified regarding the needs and challenges of the student and the program that the school created to address those specific needs and challenges and enable him to make meaningful progress. REDACTED testified to the actual academic and functional progress made by REDACTED during the 2020/21 school year and testified regarding the need to address the student’s behavioral challenges, including the need for a behavioral plan to be created and implemented for the student. REDACTED also provided REDACTED with Speech Language Therapy, Occupational Therapy and a BCBA, all of which were appropriately certified and licensed providers (T @ 224-267). The evidence and testimony establish that REDACTED created a comprehensive program that addressed REDACTED’s social/behavioral, cognitive, and academic challenges, and which was calculated to enable him to make meaningful academic and functional progress. The program included: teaching REDACTED in a classroom with a low student-to-teacher ratio (2 teachers one of which was a licensed special education teacher and an ABA para-professional) that minimized distractions and increased individualized attention; extensive behavioral supports and reinforcements; a behavioral plan that addressed the behaviors and social challenges that impeded REDACTED’s ability to learn in a classroom environment; technology that catered to REDACTED’s individual level and which served to motivate him and improve his social interactions with his peers; social skills training; and numerous other accommodations and modifications.
In the case at hand, the overall record supports that REDACTED provided a rich supportive environment that correlated well with REDACTED, that the curriculum was specifically tailored to meet REDACTED’s needs and that he received a highly individualized instruction that enabled him to make appropriate progress. I find that REDACTED made meaningful progress at REDACTED for the 2020/21 school year across the board: academically, socially and emotionally. The record reflects that REDACTED was an appropriate placement for the 2020/21 school year that was “specifically designed to meet the unique needs” of the student Frank G, supra and that REDACTED has made progress therein.
The record reflects REDACTED devotes a portion of the school day to prayer and religious studies (Exhibit E, T @ 99). Without reservation, it is a parent’s prerogative to have a student partake in religious studies during the school day; however, the DOE bears no responsibility to fund any portion of that prayer and religious instruction. While Parent presented documentary evidence that REDACTED’s religious instruction equates to $5,000.00 in value (Exhibit E, and T @ 222), the DOE raised that the religious education part of that tuition is equivalent to $9,186.35 (Exhibit IHO-1). Upon careful analysis, I find the DOE’s calculations accurate. Therefore, the record supports that the tuition allocated to non-secular studies is $9,186.35 (Exhibit E) and any tuition reimbursement/funding must be reflective of same.
Prong III:
Having found REDACTED an appropriate placement, I now consider equitable considerations, the final criterion for a reimbursement award. In weighing the equities, “the critical consideration, as the Court sees it, is whether they have cooperated in good faith to attempt to develop an IEP to the maximum extent possible, Schaffer, supra. Herein, the DOE argues the equities do not favor the parent as parent had no intention of removing the student from REDACTED.
The DOE raised challenges regarding the equity considerations for the 2020/21 school year, in particular alleging the parent never intended to enroll REDACTED in any public school setting. The DOE presented REDACTED who testified:
“The mother said she would never put him in a public school and she wanted to keep him in some type of religious school, but then the rabbi said that, you know, this is for next year. And the dad mentioned -- he wasn't at the meeting, but the rabbi said that the dad mentioned that wanted to keep all their options open…..And that was agreed that --that -- that it would be an IEP” (T @ 178-179).
The DOE further presented the minutes of the IEP meeting (Exhibit 3) to corroborate the statement recalled by REDACTED. In addition, the DOE claimed the parent provided the ten day notices (TDN) after the 2020/21 school year had started and that the late TDN’s should also be taken into consideration in reducing any tuition reimbursement to the parent. Lastly, the DOE argued there is no consideration contained in the enrollment contract (Exhibit C) as the parent did not submit a deposit to secure the student’s placement at the school (T @ 280).
The Parent argued that under the IDEA, courts have the discretion to reduce the amount of tuition reimbursement if parents remove a Student from a public school placement and fail to give the school district ten business days’ prior written notice (“10 Day Notice”) of their intent to enroll the child in private school at public expense. 20 U.S.C. § 1412(a)(10)(C)(iii)(I)(bb). Additionally, the decision regarding whether to grant reimbursement despite a parent’s failure to comply with the provision requiring a 10 Day Notice is discretionary, not mandatory, as the statute states that the cost of reimbursement may be reduced or denied. See 20 U.S.C. § 1412(a)(10)(C)(iii)(I)(bb); Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. M.N. ex rel. J.N., 71 IDELR 9 [S.D.N.Y. 2017]; A.W. and N.W. v. Bd. of Educ. of the Wallkill Central Sch. Dist., 68 IDELR 164 [N.D.N.Y. 2016]; C.U. and N.U. ex rel. G.U. v. New York City Dept. of Educ., 23 F.Supp. 3d 210 [S.D.N.Y. 2014]. The purpose of the statutory notice provision is to provide the school district with “an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a free appropriate public education can be provided in the public schools” (see Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004). Nevertheless, 34 CFR Sec. 300.148 (e) (ii) provides that the cost of reimbursement may not be reduced or denied for failure to produce a “ten day notice” if the parents had not timely received a Procedural Safeguards Notice.
In this case, REDACTED was not being removed from a public school placement for the 2020/21 school year (T @ 271); the Parent testified that she did not receive a Procedural Safeguards Notice from the Department of Education in the year preceding the 2020/21 school year (T @ 271); and the student was not offered a public school placement prior to or at any time during the 2020/21 school year.
I find that indications are that the Parent cooperated with the DOE and did not interfere with the DOE’s obligation to provide a FAPE for the 2020/21 school year. While herein REDACTED expressed her preference for a nonpublic educational setting, the testimony reflects as per REDACTED’s testimony that the father opted to keep all options open and in the end an IEP was requested for the student (T @ 178). Herein, REDACTED’s preference is not a relevant factor to a determination of the equities.
This case involves a situation where the Parent’s financial circumstances limit their ability to make payment to REDACTED (T @ 271). REDACTED testified that the family income renders a hardship to pay the annual tuition. Established case law warrants a finding that under such circumstances a school district must pay the monies owed, assuming parent’s claim is meritorious with regard to the three Burlington factors. In Conners v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y.) at 805, the court reasoned:
“By prohibiting prospective placement, Defendants would deny assistance to families that are not able to front the cost of a private, non-approved school, without exception…Given the fragile state of many disabled children, and their dire need for constant and consistent care, even brief periods of inappropriate schooling could lead to tremendous educational, social, emotional and psychological deterioration. Families of greater economic means would not be faced with such a grim prospect. It simply cannot be the case that an act designed to grant “all” disabled children access to needed services could undermine that very goal by making such access dependent upon a family’s financial situation.”
I find (1). that the DOE failed to offer the student a FAPE for the 2020/21 school year, (2). that the unilateral placement of the student at REDACTED was appropriate (3). that the program at REDACTED was “reasonably calculated” to provide REDACTED with meaningful educational benefits and (4). that equitable considerations weighed in favor of the parents’ request for reimbursement for all costs associated with the placement of the student at the REDACTED for the 2020/21 school year less the portion of tuition allocated for religious instruction.
ORDER
Therefore, it is hereby ordered that within thirty (30) days of receipt of this Order the Department of Education shall directly fund the secular tuition cost for the student’s unilateral placement at the REDACTED for the 2020/21 school year in the amount of $90,813.65.
All reimbursements and direct funding shall be supported by the presentation of appropriate documentation.
This Order excludes any sessions that may have been previously paid by the DOE pursuant to any Pendency Agreement.
Dated: August 8, 2023
Maria R. Dispenza
_________________________
MARIA R. DISPENZA, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
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 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.
DOCUMENTATION ENTERED INTO THE RECORD ON May 2, 2023
DOE:
- • IEP, 02/03/20 -17pp
- • Attendance Page, 02/03/20 -1pp
- • IEP Meeting Minutes, 02/03/20 -4pp
- • Prior Written Notice, 02/11/20 -8pp
- • Notice of Mandated Three Year Evaluation, 11/14/19 -3pp
- • Education Evaluation Report, 01/21/20 -2pp
- • WIAT III Report, 01/21/20 -5pp DOCUMENTATION ENTERED INTO THE RECORD ON May 8, 2023 Parent:
A. Request for Due Process Proceeding and Notice of Appearance, 04/08/21, 4pp
B. IEP, 02/03/20 -19pp
C. Student Contract, Program Description and Curriculum, 08/20/20, 18pp
D. Affirmations regarding tuition breakdown and payments, 02/14/23, 2pp
E. Curriculum Schedule, 2020/21, 1pp
F. Student Attendance, 2020/21, 1pp
G. Assessments, Plans and Reports, Various, 31pp
H. Ten Day Notice from Parent to DOE, 11/03/20-2pp
I. Follow-upTen Day Notice from Parent to DOE, 12/22/20 -2pp
J. FOFD, 08/03/21 -16pp
DOCUMENTATION ENTERED INTO THE RECORD ON June 13, 2023
IHO:
IHO-1. DOE Closing Brief, 06/09/23 -11pp
IHO-2. Parent Closing Brief, 06/11/23 -10pp