New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 554822 - NYC: 210923

FINDINGS OF FACT AND DECISION

Case Number: 210923

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Region: REDACTED

Hearing Requested By: Parent

Dates of Hearing: January 19, 2022

February 2, 2022

March 4, 2022

April 4, 2022

May 19, 2022

June 2, 2022

June 28, 2022

July 27, 2022

September 15, 2022

September 21, 2022

October 3, 2022

November 3, 2022

Actual Record Closed Date: December 17, 2022

Hearing Officer: Maria R. Dispenza, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 19, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED, Esq. DOE Attorney

REDACTED, Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 2, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED, Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 4, 2022

For the Student:

REDACTED Esq. Parent Attorney

For the Department of Education:

REDACTED, Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 4, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED, Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 19, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED, Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 2, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED, Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 28, 2022

For the Student:

REDACTED, Esq. Parent Attorney

REDACTED Parent/Mother

For the Department of Education:

REDACTED, Esq. DOE Attorney

REDACTED Assistant Principal, REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 27, 2022

For the Student:

REDACTED, Esq. Parent Attorney

REDACTED Parent/Mother

For the Department of Education:

REDACTED, Esq. DOE Attorney

REDACTED School Psychologist, REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 15, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED, Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 21, 2022

For the Student:

REDACTED, Esq. Parent Attorney

REDACTED Parent/Mother

REDACTED Assistant Head of School, REDACTED

REDACTED Teacher, REDACTED

REDACTED Teacher, REDACTED

For the Department of Education:

REDACTED, Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 3, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED, Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 3, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED, Esq. DOE Attorney

INTRODUCTION

On December 22, 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 2021/22. The Parent requested the hearing by filing an impartial hearing request with DOE on or about July 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 November 3, 2022. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on December 17, 2022. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND

REDACTED is a student known to the DOE since pre-school He is diagnosed with Autism, ADHD and Tourette’s Syndrome (Exhibits A and 1). REDACTED attended a specialized pre-school program where he received autism specific instruction and made significant progress. He was then placed in an Integrated Co-Teaching (ICT) classroom for kindergarten and first grade and parents allege he regressed. For third grade, REDACTED’s mother unilaterally placed him at REDACTED (REDACTED) as she felt the ICT program was not meeting his academic and social-emotional needs. For fourth, fifth and sixth grade REDACTED attended a public school in REDACTED as his family relocated. Thereafter upon returning to New York, REDACTED has attended REDACTED at DOE expense via either settlements or impartial hearing decision. On April 20, 2021 the CSE held an IEP meeting for the 2021/22 school year. Parent alleges never receiving a copy of the ensuing IEP but receiving a school location letter (Exhibit

5) for a school previously rejected. The placement recommendation was a District 75 (D75) school 12:1:1 class for the 12-month school year with adapted physical education, travel training and related services as follows: Counseling Services (1x45, 1:1 and 1x45, group); Parent Counseling and Training (1x60, group) and Speech- Language Therapy (1x45, 1:1 and 1x45, group) (Exhibit 1).

The Parent disagreed and gave notice to the DOE of its failure to provide REDACTED with an appropriate program and placement and of her intent to re-enroll him for 2021/22 school year at REDACTED and seek funding (Exhibit B). The Parents received a response of disagreement from the DOE (Exhibit C). As a remedy for the DOE’s failure to provide REDACTED a FAPE, the Parent filed a DPC and now seeks funding for the student’s tuition at REDACTED for the 2021/22 school year.

DOE CASE

In presenting its case, the DOE brought forth that the DOE sent notice informing the Parent of the scheduled IEP meeting and that the CSE did convene on April 20th, 2021 to develop an IEP for the student tailored to meet his educational needs for the 2021/22 school year. The DOE alleged the team that attended the meeting was duly constituted, that the CSE developed appropriate and measurable annual goals for the student, that Parent concerns raised at the meeting were addressed, and that DOE timely issued a prior written notice in a school location letter on June 10th, 2021 and alleged the public school placement offered to REDACTED was appropriate. Moreover, the DOE contended that the parent failed to show that the unilateral placement at REDACTED was an appropriate placement for REDACTED and that equitable considerations favor the DOE.

In an effort to support their position, the DOE submitted a documentary exhibit package consisting of seven pieces of evidence (Exhibits 1-7) and presented two witnesses, REDACTED, School Psychologist and REDACTED, Assistant Principal at the proposed public school.

PARENT CASE

The parents alleged that while an IEP meeting took place on April 20, 2021, the DOE failed to conduct updated evaluations, failed to provide Parent with a copy of the ensuing IEP, and sent the parent a school location letter recommending the same program that she had previously rejected, and that was further determined to be inappropriate for the 2019/20 school year (Exhibit A). The parent placed the DOE on notice of her intent to unilaterally re-enroll REDACTED at REDACTED, at public expense effective July 1, 2021 (Exhibit B). On or about July 8, 2021 Parent filed a DPC alleging for the 2021/22 school year the DOE failed to offer REDACTED a FAPE and that the placement and services recommended by the DOE at the IEP meeting to be inadequate to provide the student with a FAPE. Primarily, Parent put forth that the recommended school’s program – which was explicitly rejected in an unappealed hearing decision addressing the 2019/20 school year - will not allow REDACTED to make appropriate progress academically or social-emotionally for the 2021/22 school year (Exhibit A). Second, the Parent has not received a copy of the IEP developed on April 20, 2021 and makes the following specific allegations regarding the DOE’s failure to offer a FAPE based on information and belief: (1). the placement recommendation in a D75 12:1:1 class is entirely inappropriate because it would hinder REDACTED’s’ ability to access and process academic material as he requires a high level of support to stay focused and minimize distractions; (2). the goals developed during the April 20, 2021 IEP meeting are vague, boilerplate, unmeasurable, and non-individualized to meet the student’s needs; (3). the recommended program would not provide adequate support to facilitate positive social interactions with peers, problem solving, adapting to changes and challenges, or meet the student’s need for a highly individualized program with intensive, integrated supports; (4). the DOE predetermined placement by limiting its consideration of programs to only those offered in its public school continuum; (5). the parent’s right to participation was violated by the IEP team’s failure to consider the concerns of REDACTED and the REDACTED team;

(6). the DOE failed to conduct any updated psycho-educational evaluation or assessment beyond an OT assessment conducted in June 2019 in preparation for the April 20, 2021 IEP meeting. The last time the Department assessed REDACTED was in November 2016; and (7). upon information and belief, the proposed program could not implement the IEP. The parent maintains that placement at REDACTED was appropriate for REDACTED and was reasonably calculated to confer educational benefit. He was unilaterally placed back at the REDACTED for the 2021/22 school year after he had had success in their program in the past. Further, the parents maintained that equitable considerations weigh in their favor.

In an effort to support their position, the parents submitted a documentary evidence package consisting of twenty-five (25) pieces of documentary evidence (Exhibits A-Y) as well as four (4) witnesses.

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:

Under New York State law, the school district bears the burden of proof, “including the burden of persuasion and burden of production,” to establish that its proposed IEP provided the child a FAPE. NY Educ. Law § 4404(c). To provide a FAPE, a student’s educational program must be reasonably calculated to allow them to “make progress appropriate in light of [their] circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist, 137 S. Ct. 988, 993 [2017]. In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” Application of Child with a Disability, Appeal No. 05-061, quoting Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 [1982]. 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. While the record establishes the IEP was developed in a timely review meeting and the Parent received a Prior Written Notice that described the program recommended in the Student’s IEP, and received a School Location Letter prior to the start of the 2021/22 school year the Parent’s uncontroverted testimony (Exhibit Y) demonstrates she did not receive a copy of the Student’s IEP prior to the start of the 2021/22 school year. Consequently, while the Parent has established a procedural violation under the IDEA, that alone does not constitute a FAPE denial. While the record reflects Parent had an opportunity to participate in the creation of the IEP, the record also reflects via credible affidavit testimony that parent concerns expressed at the IEP meeting went by the sidelines and not deliberated (Exhibits Q, X and Y). The record further supports that the IEP team relied on outdated evaluations. REDACTED, who led the IEP meeting, testified that the team had sufficient data to create an IEP for REDACTED, particularly a 2019 OT evaluation and a psychoeducational evaluation dated 2019. He noted the evaluative materials were less than three years old and that the team felt they did not need any additional assessments to fill in the gaps in review of the existing evaluative material (T @ 116-117). It is noted that for the 2021/22 school year REDACTED was an REDACTED year old student entering 12th grade and preparing to transition. It is further noted that Parent expressed concerns with regard to the lack of support and services at the recommended program and placement and the lack of independent living skills and adaptive living skills. The Parent argued that the related services recommendations, annual goals and management needs listed on the IEP were inappropriate. REDACTED testified same were created based on progress reports and information obtained from the school and from the family (T @ 113).

While REDACTED testified to the appropriateness of same, he acknowledged not having independent recollection of the IEP meeting details and was solely testifying upon review of the documents (T @ 138). He further testified to not being personally familiar with REDACTED as he never personally met him (T @ 138).

“The progress report that REDACTED provided to the CSE -- the school has provided to the CSE during the meeting. You know, REDACTED does give very detailed progress reports on their students. You know, in REDACTED's case, you know, and specifically related to his academic skills and his OT skills, and vocational skills. So they do provide very good information in those specific areas regarding what REDACTED's progress has been, and also specific goal areas that they're working on with him in order to help him in school” (T @ 116).

REDACTED, Assistant Principal at the recommended placement testified and acknowledged he had no personal knowledge of REDACTED and was merely making determinations on review of the IEP (T @ 76-80). Simply presenting witness testimony that demonstrates the proposed public school had a seat available for REDACTED in a 12:1+1 class at the beginning of the 2021/22 school year and it could provide all the recommended related services in the frequencies and durations listed in the IEP is not sufficient particularly when presented with the Parent’s assertion that the proposed public school lacked the life skills instruction, support and services required by REDACTED’s IEP.

REDACTED stated the REDACTED includes multiple locations and that he could not possibly identify the appropriate location REDACTED would be assigned to without spending significant time with him (T @ 82-83). Again, when asked about one-to-one support and small group instruction, REDACTED stated he could not possibly answer a question about a child that he did not know and testified, he had no knowledge of the student and therefore unable to speak as to what his management needs and implementation would be like in the school without having spent significant time with him. (T @ 89). Lastly, REDACTED testified that all the REDACTED programs are Regents based (T @ 92).

REDACTED attested that upon visiting REDACTED at REDACTED along with REDACTED, a consulting teacher from REDACTED who accompanied her on the school visit she was met by REDACTED from REDACTED. REDACTED conveyed that during her visit she expressed the same concerns as she had the year prior, specifically about receiving enough support, transition services to the school, independent living skills, adaptive living skills. REDACTED also expressed concern that the offered placement site would not be appropriate for REDACTED because the students were classified with Emotional Disturbance (ED) and behavioral issues. She testified:

“REDACTED does not have behavioral issues. In fact, he shuts down when directly confronted and tries to find a place where he feels safe and is not challenged” (Exhibit Y).

During cross-examination, REDACTED confirmed:

“We have both students with emotional disturbance, autism, other health impairment, speech impairment. It's -- ED is probably the largest of those groups”(T @ 84).

Both REDACTED and REDACTED expressed concern with the proposed placement’s representation that the program was completely focused on academics with a Regents based curriculum (Exhibit Y). REDACTED testified he did not deem a regents diploma appropriate for REDACTED (T @ 144). REDACTED lacked the credits he would need to obtain a Regents diploma. REDACTED attested that REDACTED, stated during the visit that REDACTED is a standardized school where all students work to take the Regents exams and must earn 44 credits. She stated the school follows the common core curriculum which cannot be modified (Exhibit W).

REDACTED testified:

“REDACTED needs support with executive functioning, adaptive living skills, time management, problem-solving, planning, prioritizing tasks, and life skills. However, this type and level of support were not provided at REDACTED. They do not provide adaptive skills or life skill classes. There is no OT on site and students independently navigate the building. During the visit, I did not observe any visual cues or individualized schedules” (Exhibit W);

“Additionally, REDACTED has not taken any high school courses toward the 44 credits required for graduation from REDACTED. This would mean that REDACTED, who was entering the 12th grade for the 2021/22 school year, would be at a significant deficit. REDACTED said that the students have until 21 to obtain the credits and they would have to submit a petition to the district to waive the Regent’s requirement but only after REDACTED failed 3 Regents exams” (Exhibit W).

An appropriate placement is not just a classroom seat and related services. The DOE did not provide any evidence regarding the proposed public school’s ability to address REDACTED’s management needs or any of the annual goals recommended in the IEP. Consequently, the Assistant Principal’s testimony that the proposed public school could implement the IEP as written failed to adequately demonstrate that the proposed public school would fully implement the REDACTED’s IEP.

Herein, based upon due consideration, I find the DOE failed to provide an appropriate IEP and placement for REDACTED and that the Parents have met the first of the three Burlington/Carter criteria for tuition reimbursement.

Prong II:

Having determined that the DOE did not offer the student a FAPE for the 2021/22 school year, I now proceed to evaluating the appropriateness of the parents’ unilateral placement of the student at Cooke. 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).

In the case at hand, the record establishes that REDACTED has attended REDACTED for several years and reflects REDACTED having been a placement that was reasonably calculated to confer specifically designed instruction and educational benefit in years past either via stipulation between the parties and/or finding of facts and decision ensuing from an administrative proceeding (Exhibit A).

For the 2021/22 school year, DOE counsel emphasized that the record at hand proves spare in terms of efforts expended by REDACTED to learn about the student. Particularly, DOE counsel presented that witness testimony and documentary evidence prove scant in demonstrating the unique efforts made by REDACTED in determining and providing classes and related services specifically designed for REDACTED’s needs.

REDACTED, Assistant Head of the Upper School at REDACTED represented REDACTED has an independent school for students with a broad range of cognitive and developmental disabilities and who typically have language-based learning disabilities, academic deficits, and/or deficits in adaptive daily living skills. She stated REDACTED offers a twelve-month program for students with moderate to severe developmental or cognitive disabilities and is a program that provides modified academic instruction, programming, vocational training, integrated related services, clinical services, and differentiated instruction within academic content areas (Exhibit V). She attested that for the 2021/22 school year, REDACTED was grouped in classes with students of similar age, functioning levels, and needs throughout the school day’s and that his academic classes consisted of 9-12 students with 1 head teacher, 1 assistant teacher and 1 paraprofessional for the academic subjects and 1 head teacher and 3 clinicians for the adaptive skills block of the day (Exhibit V, T @ 180-181).

REDACTED attested to being familiar with REDACTED. She attested that he has attended REDACTED since July 1, 2017 and previously attended REDACTED from 2011-2013. She stated that for the 2021/22 school year REDACTED was in the twelfth grade at REDACTED and is now 19 years old and attends REDACTED (Exhibit V).

She opined:

“REDACTED's program differs from that being offered by the DOE in that it provides REDACTED with a departmentalized program with different teaching teams for each subject. Students are scheduled for classes on all 5 floors of the school building, providing opportunities for independence throughout each school day. Each academic class is taught by a head teacher and assistant teacher, with push-in support provided by a team of clinicians (OT, SLP, Counseling). There are between 2-5 adults supporting REDACTED’s classes, allowing for regular small group instruction. This would not be possible with the staffing ratio provided by the 12:1:1 D75 class. Additionally, REDACTED’s related services are integrated into his schedule, providing weekly opportunities for generalization of adaptive skills out in the community. REDACTED's vocational training program provides individualized internship placement and support from a job coach. My general understanding of the 12:1:1 classes within D75 programs is that they are not departmentalized so students remain in the same classroom with the same teaching team for most subjects, aside from specials. Vocational training in D75 schools is typically provided to the whole classes at one time” (Exhibit V).

She continued:

“REDACTED provides significantly modified programming to address REDACTED’s extensive academic needs and integrates his related services into his curriculum to place his learning and acquisition of new skills into a meaningful context. The support provided to him by REDACTED has allowed him to access the curriculum substantively and beneficially……… In my professional opinion, REDACTED requires twelve-month services to make meaningful academic, social, and emotional progress. Based on our experience with REDACTED to date and his educational records, REDACTED requires the support and structure of a school program throughout the year to prevent regression and build on the skills that he is learning in school” (Exhibit V);

“During the second semester, REDACTED completed a remote-based internship at Strategic Group to develop clerical vocational skills. He received highly individualized 1:1 support. REDACTED showed improvement by taking initiative at work. REDACTED responded appropriately to feedback and worked productively. In May, REDACTED was awarded Intern of the Month for “having an “amazing work ethic, being independent, and being a well-rounded professional”, REDACTED is interested in a photography career” (Exhibit V).

REDACTED, Consulting Teacher at REDACTED, testified:

“I noted that due to REDACTED’s anxiety, structure and routine are essential in his learning environment. I also stated that the physical learning environment of the proposed setting needed to be considered carefully by the placement officer, as a large campus would be overwhelming for REDACTED, including a program co-located with other programs. REDACTED is making progress in social/emotional skills and a large placement might result in REDACTED losing the gains he had made. I stated that the setting needed to provide good social and behavioral peer models. I also explained that a comprehensive transition plan into a new setting would need to be in place to address REDACTED’s anxiety and facilitate social communication” (Exhibit X).

The fact that the record establishes REDACTED required a high level of support to address his needs and to make progress in certain areas, and that REDACTED provided REDACTED with that level of support as needed, is evidence of REDACTED’s appropriateness, as it demonstrated that the REDACTED provided him with a program that was “reasonably calculated to enable [him] to receive educational benefits” (T.K. and S.K. ex rel. L.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 [2d Cir. 2016]).

There is no requirement that a student achieve a specific level of progress for a private placement to be deemed appropriate. “Instead of relying solely on data reflecting academic progress, courts... consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs” (Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F. Supp. 2d 403, 418 [S.D.N.Y. 2011]). DOE counsel’s suggestion that the Private School was inappropriate because the Student achieved only moderate progress despite a high level of support is therefore without merit. Additionally, DOE counsel’s assertions regarding alleged contradictions in the witness testimony is not supported by the record The record demonstrates that REDACTED made progress at the REDACTED during the 2021/22 school year. The weight of the documentary evidence (Exhibits J, K, S and T) and the credible testimony of the parent witnesses (Exhibits P, Q, V-Y) clearly demonstrate that REDACTED benefitted from the individualized instruction and supports he received at REDACTED during the 2021/22 school year. REDACTED individualized REDACTED’s program to address his needs; he made appropriate gains in his academic, communication, language, social-emotional, and ADL skills; and he received the individualized academic instruction and related service supports within a small class setting he required. DOE’s cross-examination of parent witnesses failed to generate a material challenge to parent assertions. I find the testimony of Parent witnesses credible that REDACTED designed a program for REDACTED that addressed his needs and that for the 2021/22 school year REDACTED demonstrated progress.

Based on the foregoing, I find REDACTED was an appropriate placement for REDACTED for the 2021/22 school year, thus the Parent has met the second prong of the Burlington/Carter Test for tuition funding and/or reimbursement.

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. There is nothing in the record to show that the parents were anything other than cooperative at all relevant times and provided the District with ten days’ notice about their concerns with the lack of an IEP and placement as well as their intention to unilaterally place REDACTED at REDACTED for the 2021/22 school year. The DOE has not demonstrated that the Parent “acted with the requisite level of unreasonableness or misconduct that reimbursement should be denied on equitable grounds” (Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ., 550 F. Supp 2d 420, 437 [S.D.N.Y. 2008]). Furthermore, there is nothing in the record to suggest, let alone demonstrate, that the Parent interfered in any manner with the CSE’s evaluation of the Student or prevented it from providing the Student with a FAPE for the 2019-2020 school year. To the contrary, the record indicates the Parent cooperated with the CSE throughout the evaluation and placement process, as she attended and actively participated in the review meeting at which the Student’s IEP was developed; she expressed her concerns about REDACTED’s lack of ADL and financial literacy skills and his issues with anxiety, frustration and comprehension; she informed the review team of the Student’s need for a small class setting with supports and his prior experience in a 12:1+1 program; and she asked the review team how the proposed 12:1+1 program recommended for the Student would address his daily living skills and his issues with transitions. The record further establishes that when the Parent received the Prior Written Notice and School Location Letter from the DOE, she contacted the Proposed Public School and spoke to the Assistant Principal despite not having received a copy of the Student’s IEP. The Parent discussed the Student’s issues with the Assistant Principal and asked to schedule a visit to observe the recommended program.

I find (1). that the DOE failed to offer the student a FAPE for the 2021/22 school year, (2). that the unilateral placement of the student at REDACTED was appropriate (3). that the program at REDACTED is “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 REDACTED for the 2021/22 school year.

ORDER

Therefore, it is hereby ordered that The Department of Education shall reimburse the tuition and all fees associated with the student’s unilateral placement at the REDACTED for the entire 2021/22 school year. All reimbursements and direct funding shall be supported by the presentation of appropriate documentation.

Dated: December 27, 2022

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 JANUARY 29, 2021

DOE:

• • IEP, 04/20/21 -18pp
• • IEP (Attendance), 04/20/21 -1pp
• • Notice of IEP Meeting, 03/24/21 -4pp
• • Prior Written Notice, 06/10/21-5pp
• • School Location Letter, 06/10/21 -3pp
• • OT Evaluation, 05/17/19 -7pp
• • Psychoeducational Evaluation, 10/22/19 -13pp Parent:
• • Due Process Complaint, 07/08/21 – 6pp
• • Ten Day Notice, 06/16/21 – 2pp
• • Notice of Determination on Ten-Day Notice, 07/06/21 – 1pp
• • REDACTED School Contract, 04/14/21 -3pp
• • REDACTED School Tuition Affidavit, 5/12/22-1pp
• • REDACTED Remote Program Letter, referencing REDACTED Remote Learning Information Plan, 10/20/21 -6pp
• • REDACTED Program Description, 2021/2022 – 5pp
• • Student Schedule Fall 2021/22 through 02/01/22 -1pp
• • Student Schedule Winter 2021/22 as of 02/02/22 -1pp
• • REDACTED Progress Report 2021/22 Semester 1, 02/04/22 -21pp
• • REDACTED Progress Report 2021/22 Semester 2, 06/17/22 -28pp
• • REDACTED Summer Academy Description, Summer 2021 -2pp
• • Student Schedule, Summer 2021 -1pp
• • Student Remote Schedule, 08/09/21-08/12/21 -1pp
• • Student Attendance Sheets, Summer 2021, Fall 2021-Spring 2022, 06/21/22 -2pp
• • REDACTED, Cooke -IEP Meeting Notes, 04/20/21 -8pp
• • REDACTED, REDACTED -School Location Report 2021-22, 07/26/21 -3pp
• • Parent Income Statements: SSI, 03/04/22, HRA, 0513/22 -4pp
• • REDACTED Progress Report 2021/22, Summer 2021 05/13/22 -5pp
• • REDACTED Progress Report -2021/22 Semester 1, 02/05/21 -20pp
• • Not Admitted (T @ 171)
• • REDACTED Affidavit, 09/14/22 -12pp
• • REDACTED, 09/14/22 -5pp
• • REDACTED Affidavit, 09/14/22 -9pp
• • REDACTED, 09/14/22 -7pp

DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 3, 2022

IHO:

IHO-1. DOE Closing Brief, 11/01/22 -20pp

IHO-2. Parent Closing Brief, 11/01/22 -22pp