New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 559161 NYC: 215164

NAMES AND TITLES OF PERSONS WHO APPEARED

February 3, 2022

For the Student:

REDACTED, Esq., Law Offices of REDACTED, P.C.

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED

March 31, 2022

For the Student:

REDACTED, Esq., Law Offices of REDACTED, P.C.

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

May 4, 2022

For the Student:

REDACTED, Esq., Law Offices of REDACTED, P.C.

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

July 14, 2022

For the Student:

REDACTED, Esq., Law Offices of REDACTED, P.C.

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

August 2, 2022

For the Student:

REDACTED, Esq., Law Offices of REDACTED, P.C.

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED

September 8, 2022

For the Student:

REDACTED, Esq., Law Offices of REDACTED, P.C.

For the Department of Education:

REDACTED, Esq., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

September 29, 2022

For the Student:

REDACTED, Esq., Law Offices of REDACTED, P.C.

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED

October 14, 2022

For the Student:

REDACTED, Esq., Law Offices of REDACTED, P.C.

For the Department of Education:

REDACTED, Esq. District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

November 28, 2022

For the Student:

REDACTED, Esq., Law Offices of REDACTED, P.C.

For the Department of Education:

REDACTED, Esq. District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

December 23, 2022

For the Student:

REDACTED, Esq., Law Offices of REDACTED, P.C.

For the Department of Education:

REDACTED, Esq. District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

January 23, 2023

For the Student:

REDACTED, Esq., Law Offices of REDACTED, P.C.

For the Department of Education:

REDACTED, Esq. District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

February 6, 2023

For the Student:

REDACTED, Esq., Law Offices of REDACTED, P.C.

For the Department of Education:

REDACTED, Esq. District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 13, 2023

For the Student:

REDACTED, Esq., Law Offices of REDACTED, P.C.

REDACTED, Parent (“Mother”)

REDACTED, REDACTED

For the Department of Education:

REDACTED, Esq. District Representative

INTRODUCTION AND PROCEDURAL HISTORY

This matter was brought pursuant to a Due Process Complaint (“DPC”) on September 8, 2021 (“DPC 9/9/21”) by REDACTED, Esq. attorney for Parents of Student. The claims asserted in the DPC herein are not typical of many DPCs I have presided over. Parents seek reimbursement for tuition for summer classes Student took at REDACTED during the Summer of 2021 to “make up” credits that Student did not receive or was not awarded by the District for the First Quarter of 2020-2021 school year (September -October 2020) (referred herein as “REDACTED First Quarter Credit”) when Student attended the REDACTED (“REDACTED”) a DOE public high school. P Ex. A; D Ex. IO-4 and 5. 1 The DPC asserts that Parents made repeated requests and attempts to obtain Student’s first quarter 2020-2021 transcript from REDACTED and were told no grades were ever assigned to Student although she attended REDACTED through the first quarter marking period. P Ex. A-2.

This matter was initially assigned to IHO REDACTED after it was filed in September 2021; IHO REDACTED was assigned to Parents’ due process complaint #REDACTED brought for the 2020-2021 school year relating to Parent’s unilateral placement of Student at REDACTED from November ^[1], 2020-June 2021, but IHO REDACTED denied consolidation and recused herself. Tr. 28; D IO 1-2, 5-6. The case was assigned to this IHO on January 20, 2022.

The District failed to appear at the first hearing date on February 3, 2022. Tr. 1-9. At the status conference on March 31, 2022, this IHO raised sua sponte the issue of whether there could possibly be an issue of res judicata and requested the DPC in case REDACTED and the FOFD in #203307. Tr. 11-31. The DPC and FOFD in case REDACTED were shared with this IHO and Parent’s counsel, REDACTED, Esq. explained Parents did not find out Student did not have a transcript for the First Quarter until the Spring of 2021. Ms. REDACTED had attempted to help Parent obtain the transcript and it came to light Student was going to have issues with getting credit and staying on her grade track. Tr. 21-22. The District raised no issues regarding res judicata during this conference. Tr. 11-31, At the next status conference in early May of 2022, the parties informed this IHO the matter had been referred for settlement. Tr. 34-36. Parent submitted a packet of documents requested by the District to assess settlement in April 2021. Tr. 148. Throughout the Spring, Summer and Fall of 2022, extensions were requested so the District could complete review of the documentation, draft a memorandum to the comptroller and make an offer of settlement. Tr. 42-108. Parents’ counsel represented that the documents submitted to the District in April of 2022 included Parents’ contract with REDACTED for Summer School and Student’s attendance records. Tr. 135-136, 148-149. The District did not dispute this at any time.

The tuition/enrollment contract between Parents and REDACTED(“REDACTED”) for the “make-up” Summer classes is dated June 11, 2021 and Parent signed the contract on June 15, 2021.Tr. 135; see also P Ex. J-5. It is undisputed by District that is a REDACTED 1-1 program with rolling admissions that allows Students to start and stop at any time because they go class by class based upon student needs. Tr. 134-35, 190, 198.

There were multiple status conferences through the summer and fall of 2022 with a change of District attorneys responsible for the settlement process and the District (when appearing) informed this IHO REDACTED, Esq. (“REDACTED”) representing the District stated that the settlement was proceeding and that a formal offer would be made but would not reveal if a memorandum had been sent to the Comptroller. Tr. 78-79, 100-101. At the end of December of 2022, Mr. REDACTED indicated there was a draft memorandum of settlement recommendation, but no memorandum had yet been submitted to the Comptroller and Mr. REDACTED had been working with a supervisor on the matter but could not state anything further as to the progression of the settlement. Tr. 101-104. At the December 23, 2021 status conference, Parent’s counsel requested this be put down for a hearing, hoping the District would move the settlement along faster. Tr. 105. This IHO set the matter down for a hearing on February 6, 2023 with a status conference to be held on January 23, 2023 before the merits hearing in February for the parties to state their positions for hearing and number of witnesses to prepare for the hearing and set inappropriate amount of time and dates. Tr. 104-107.

On January 23, 2023, the District still had not asserted this matter was barred by claim preclusion/res judicata and Mr. REDACTED reported that there still was no offer but still hoped to get one to Parent’s counsel prior to the hearing date on February 6, 2023. Tr. 110-111. The parties’ cases for the upcoming hearing were discussed and the District stated it would not present a Prong I/FAPE case or witnesses. Tr. 111-112. Parents’ counsel stated they anticipated two witnesses. Tr. 113.

Via email on February 1, 2023, Parent’s counsel’s office requested an adjournment of the hearing as REDACTED had been ill and unable to coordinate with her witnesses. IHO II, Emails 2/1/2023. The February 6th hearing date was designated to be used to pick new hearing dates and the hearing on the merits would not go forward. IHO II.

On February 1, 2023, District’s counsel indicated that District planned to make a motion to dismiss the case based on the doctrine of res judicata. IHO II. Via email on February 2, 2023. This IHO indicated via email why a motion to dismiss was most likely not appropriate unless the District had new or different information then was in the record to date. IHO II. District submitted its written motion to dismiss on February 3, 2023 and a hearing was held in which the basis of District’s arguments was discussed, and Parents’ counsel presented arguments on the record. D Ex. 1-8; IHO Ex. I.

The District argued that the DPC herein should be dismissed as res judicata barred the claims and relief sought. IHO Ex. I. Citing to Federal Rule of Civil Procedure 12(b)(6) District argued the DPC failed to state a claim citing general law related to FRPC 12(b)(6) motions and did not directly expand on how Parents failed to state a claim with any specificity related to the complaint. IHO Ex. I. Second, District argued that the DPC was barred by res judicata as the claims related to by the FOFD in case no 203307 as it (1) involved the same parties; (2) in case no 203307 there was a final adjudication on the merits and (3) all claims averred in the DPC herein could have been raised in case no 203307. IHO Ex. I. The District argued that the “issue of the missing grades was likely known to parent before the amended filing for DPC 203307 in December 2020 and if that were not the case the “alleged missing grades clearly became an issue in case no. 203307 before the first substantive haring as Parent obtained IHO REDACTED’s signature on May 24, 2021 for the subpoena and Parent “chose” not to amend the DPC a second time in case no. 203307. IHO I. District also argued that Parent raised the missing grades in their written closing statement and refer to this mention of this testimony in the record as “the same allegation” as in the case herein. IHO Ex. I.

On February 6, 2023, the District’s motion was discussed. Tr. 116-158. Parent’s counsel set forth a position with a number of reasons as to why the Parents objected to the motion based upon the facts regarding when Parents learned of the claim herein, the timeline, the legal impropriety of District’s arguments and requested to submit papers in opposition. Tr.128. I indicated that I did not believe the Parent needed to submit papers in opposition as the District had not made a case for dismissal for various reasons and I was going to deny the motion to dismiss. Tr. 116-158.

This IHO issued a decision denying the District’s motion to dismiss as the FOFD in case no 203307 does not provide a basis for res judicata or claim preclusion as to the claims in the DPC herein and considering the history and facts relating to this matter it would be inequitable to dismiss this matter based upon res judicata and the District waived the right to move to dismiss based upon such an affirmative defense. IHO Ex. IV, Decision dated February 27, 2023 (“Decision on MD”). I incorporate herein my findings in the Decision on MD

On March 13, 2023 this matter proceeded to a hearing on the merits. The District stated prior to hearing they would not be presenting a “FAPE” case and the hearing on the merits proceeding on issues related to Burlington/Carter Prong II and III. Tr. 214.

A list of the documentary evidence submitted is appended to this Order.

The District did not present any witnesses but sought to enter documentary evidence some of which was allowed to the extent it may relate to Prong II or III. Parents presented two witnesses REDACTED (“Mother”) and (“REDACTED”) of REDACTED. and offered documentary evidence all entered into the record. Both Mother and REDACTED were cross-examined at length.

Both parties submitted closing post-hearing closing statements or memorandums. IHO Ex. V., District’s Closing Statement and IHO VI, Parent’s Closing Statement

The record was closed on May 28, 2023.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and Section 504 of the Rehabilitation Act of 1973 and all implementing regulations, (for IDEA see 34 C.F.R. § 300 et seq.), and the New REDACTED State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

Student turned REDACTED old in REDACTED and was in 9th grade. P Ex. C and D IO-6. As of the beginning of the 2020-2021 school year, Student’s disability classification was “other health impairment (“OHI”).” D Ex. IHO 6-2.

Student has had significant emotional and behavioral challenges, including depression, anxiety, impulsivity, impaired judgment and poor emotional regulation and presents with the symptoms of a behavioral disorder as well as a mood disorder. P Ex. C and D IO-6. Student was diagnosed in February 2020 with major depressive disorder, unspecified attention-deficit/hyperactivity disorder (ADHD) and oppositional defiant disorder (ODD). D 2 and 5.

Student attended public middle school at REDACTED (“REDACTED”). D Ex. 2; P Ex. N-1. Student was hospitalized for inpatient mental health care and also was in a partial hospitalization program during the 2019-2020 school year. D Ex. 2.Student was deferred to the Central Based Support Team (CBST) for a 12-month placement at a New REDACTED State -approved nonpublic day school (“NPS”) 12:1:1 with related services of counseling following a March 11, 2020 IEP meeting. D Ex. 2. No placement was secured for Student at an NPS by the beginning of the 2020-2021 school year. See D IO-6-2 and IO-8-3;P Ex. N-2.

Without an NPS placement, Student began the 2020-2021 school year at a New REDACTED Public High School she was placed in through the NYC High School Choice Program. P Ex. N-2. In October of 2020, Parents gave notice they were unilaterally placing Student at REDACTED in the Program (“REDACTED” or “REDACTED/JumpStart”). See D IO-6 and IO-8;P Ex. N-2. Student attended REDACTED for the remainder of the 2020-2021 school year and the 2021-2022 school year. See D IO-6 and IO-8;P Ex. N-2.

ISSUES

1. Did the District fail to offer Student a FAPE by failing to provide credit/grades/transcript for the first quarter of the 2020-2021 school year when she was enrolled at REDACTED?

2. If there was a deprivation of FAPE for failure to provide grades/credits for the first quarter of the 2020-2021 school year is Student entitled to compensatory credit in order to obtain the necessary credit to earn a high school diploma and Parents’ unilateral placement in programming at REDACTED during the Summer of 2021 to “make up” the credits necessary to obtain credit for the entire school year and advance to the next grade (10th) result was appropriate compensatory education or an appropriate placement (Prong II)? 3. Are Parents’ claim supported by equitable considerations (Prong III)?

PARENTS’ POSITION

Parents contends Student was denied a FAPE due to the District’s failure to provide any grades or credit for the first marking period of the 2020-2021 school year which were required in order that Student receive full credit for the 2020-2021 school year and be promoted to 10th grade for the 2021-2022 school year. Due to the failure to provide Student with any credit or records for the first quarter for the 2020-2021 school year when Student attended REDACTED, Student had to make up the credits during the Summer of 2021 in order to advance to the next grade and receive full credit for the 2020-2021 school year. After Parents discovered that REDACTED had not or would not provide such credit or records in May of 2021, Parent enrolled Student in REDACTED during the Summer of 2021 to cover the course work for the first quarter of 2020 -2021 school year that the District did not provide any records. Parents seek reimbursement in the amount of $16,261.00 for the tuition paid to REDACTED for Student’s enrollment during the Summer of 2021 as compensatory education for the grades/credit the District did not issue to Student while enrolled at REDACTED. Parents allege that enrollment was necessary in order that Student advance to 10th grade for 10-month 2021-2022 school year by September 2021.

DISTRICT’S POSITION

District did not assert or provide proof that it Student a FAPE pursuant to Parents claims in the DPC herein. District asserts that Parents claims in the DPC must be denied or limited due to Student’s “chronic absenteeism” during Student’s remote attendance at REDACTED. IHO Ex. V. District did not present any arguments about Parent’s claim for the Summer schooling in 2021 at REDACTED as compensatory education or the appropriateness of it.

FINDINGS OF FACT

The following are my findings of fact on all testimony and documentary evidence presented in this matter. I incorporate into these findings of facts the sections above referenced as “ “Introduction and Procedural History” and “Background” as part of my Findings of Fact as well as my Findings in my Decision Denying the Motion to Dismiss issued in February 2023 (IHO Ex. IV).

The following facts are undisputed per the documentary evidence and testimony provided:

Student’s classification and eligibility are not in dispute between the parties.

Student was reclassified following a March 11, 2020 IEP meeting as OHI. D Ex 2.

Student has a history of significant emotional and behavioral challenges, including depression, anxiety, impulsivity, impaired judgment and poor emotional regulation and presents with the symptoms of a behavioral disorder as well as a mood disorder. P Ex. C and D 2, IO-6.

Student was diagnosed with depressive disorder, unspecified attention-deficit/hyperactivity disorder (ADHD) and oppositional defiant disorder (ODD) in February of 2020. D-2 and 5.

Student attended public middle school at REDACTED (“REDACTED”) but while in Middle School was hospitalized or brought to the hospital for emergency treatment for mental health issues, including inpatient mental health hospitalizations and a partial hospitalization programs during the 2019-2020 school year. D Ex. 2 and 5; P Ex. C and N.

Student’s mental health struggles during the 2018-2019 and 2019-2020 school years directly caused Student significant impairments in functioning including school attendance, i.e. school refusal. D Ex. 2, 4 and 5; P Ex. C and N.

Student was deferred to the Central Based Support Team (CBST) for a 12-month placement at a New REDACTED State -approved nonpublic day school (“NPS”) 12:1:1 with related services of counseling following a March 11, 2020 IEP meeting. D Ex. 2. No placement was secured for Student at an NPS by the beginning of the 2020-2021 school year. See D IO-6-2 and IO-8-3;P Ex. N-2. With no NPS placement and with imminent start of school in September of 2021, Parents enrolled Student in REDACTED as a school she had previously been placed due to the High School Choice Program. See D IO-6-2;P Ex. N. Student was enrolled in REDACTED as she had no other school to attend and it was assigned through the High School Match program but per the District’s own IEP and referral to the CBST to an NPS, REDACTED was not appropriate for Student. D IO-6; P Ex. N. Due to the COVID -19 Pandemic, REDACTED began the 10-month 2020-2021 school year on September 21, 2021.Tr. 239; P Ex. N. Parents moved Student to REDACTED/JumpStart Program at the end of the first marking period or quarter as of November 2, 2021. Tr. 231;P Ex. N.

Student attended REDACTED/REDACTED from November 2021 through the end of the 2020-2021 school year in 9th grade and for the 2021-2022 school year for 10th grade and Parents were awarded funding for their unilateral placement at REDACTED/REDACTED for both of those years. D IO 6 and 8.

On October 28, 2020 Parents filed a DPC (“DPC #203307”) seeking reimbursement for Parents’ unilateral placement of Student at REDACTED/REDACTED at the beginning of November 2020 for the remainder of the 2020-2021 school year with an amended DPC REDACTED filed December 9, 2020 (“Amended DPC #203307”). D IO Exs. 1, 4 and 6. The crux of the claims in Amended DPC REDACTED were Student was denied a FAPE as the CSE Team and CBST failed to recommend or provide an appropriate placement in an NPS, the placement at REDACTED was inappropriate, the Parent’s unilateral placement at REDACTED/REDACTED was appropriate and the equities favored Parent. D IO Exs. 1 and 6. Hearings in Amended DPC REDACTED commenced April 20, 2021 and were held after that on May 26, 2021, June 15, 2021, June 23, 2021 and August 3, 2021 and presided over by IHO REDACTED. Tr. 19. While DPC #2073307 was pending, on or about May 11, 2021, REDACTED/REDACTED asked Parents for Students transcript from REDACTED in order to issue her full grades and credit for the 2020-2021 school year and to advance Student to the next grade level for the following 10-month school year. Tr. 128-134; P Ex. N-3. During the hearings in DPC #2073307, Parent’s counsel submitted a subpoena directed to the District signed by IHO REDACTED on May 24, 2021 requiring the District produce the records by June 5, 2021 and seeking all of Student’s records relating to her grades, coursework and attendance and her official transcript at REDACTED for the 2020-2021 school year. D IO Ex. 3. The subpoena was submitted to IHO REDACTED after hearings had commenced to get Student’s transcript or evidence of her First Quarter grades at the request of REDACTED so that Student could be given credit for the entire school year and advance to 10th grade. Tr. 128-134; 292-295; P Ex. N. No grades, attendance records, transcript or any other records relating to student’s attendance and transcript at REDACTED were produced by the District or REDACTED to support that any grades were issued for Student for the first quarter the 2020-2021 school year (September 21, 2020-October 31, 2020). D Ex. IO -3; P Ex. N. The District did not offer any records in the hearing herein.

Parent provided a Ten-Day Notice of their intent to enroll Student in REDACTED dated June 23, 2021. P Ex. B.

The following Findings of Fact are made herein (that may or may not have been disputed): From September 21, 2020 through October 30, 2021, Student had a difficult time with the remote learn system for REDACTED and there were times she tried to sign into classes or related service of counseling and could not. Tr. 281-288; P Ex. N. Mother emailed and called the school for help. Tr. 281-288; P Ex. N. During this period, Parent discovered REDACTED did not have Student’s IEP. Tr. 283-289; P Ex. N. Parent provided the IEP to REDACTED. Tr. 283-289; P Ex. N. REDACTED moved Student from general education and ICT and back and forth creating confusion for Mother and Student as to what classes or related services she was enrolled during this period and compounding Student’s difficulty of logging into her classes and services remotely at REDACTED. Tr. 283-289; P Ex. N. Parent testified Student would sign into a class she thought she was enrolled in and then could not sign in as the schedule had changed and she was not aware of the new virtual schedule. Tr. 283-289; P Ex. N. Parent testified this was confusing for Student and Parent. Tr. 283-289; P Ex. N.

Student was enrolled in REDACTED through the last day of the marking period of the first quarter of 2020-2021 and transferred to REDACTED/REDACTED on November 2, 2020 following Parent’s ten -Day Notice to District. P Ex. N. REDACTED advised Parents that Student would have to make up the missing quarter of credits if the REDACTED transcript could not be obtained or she would not be able to get credit for the entire 9th grade school year and would not be able to advance to 10th grade. Tr. 290-292; P Ex. N-3.

On May 25, 2021, REDACTED advised Student had been discharged in their records as of November 3, 2020 at the end of the marking period, but no grades had been posted and there was no official transcript. Tr. 290-295; P Ex. N-3. REDACTED recommended Parent enroll Student in REDACTED to “make up” the lost credit and to avoid repeating 9th grade. Tr. 291;P Ex. N.

Parent enrolled Student in REDACTED on June 8, 2021 and singed the contract on June 15, 2021 in order that student take the first quarter of Algebra I, Biology, English 9, French I and World History. P Ex. H-K; IHO Ex. III. Student took classes remotely from June 16 into August 2021 for approximately twelve and a half weeks. Tr. 190-196; 292-295; P Ex. H-K;IHO Ex. III. REDACTED’s program is completely individualized and 1:1 and operates on rolling admissions. Tr. 190-198. Student passed all classes with grades ranging from C- to B and ultimately received full credit for 9th grade advancing to 10th grade for the start of the 2021-2022 school year. Tr. 295; D Ex. IO-6;P Ex. H;IHO Ex. III.

I find Mother and REDACTED’s testimony credible.

CONCLUSIONS OF LAW

Law Regarding Burden of Proof Regarding Denial of FAPE and Unilateral Placement.

The IDEA provides children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 (d)(1)(A). FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP is developed through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). 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. § 300.323 (a); see also, Cerra v. Pawling Cent. Sch. Dist., 427 F. 3d 186 194 (2d Cir. 2005).To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 580 U.S. ___, 137 S.Ct. 988, 999, 69 IDELR 174 (2017). A focus on the particular child is at the core of the IDEA. The instruction offered must be ‘specially designed’ to meet a child’s ‘unique needs.’” Id. To meet the IDEA’s requirements, a school district’s program must provide special education and related services that are “‘specially designed’ to meet a child’s ‘unique needs’” and are reasonably calculated to enable the child to receive educational benefits. Id.; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007); see also, 20 U.S.C. § 1401(9).

If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR § 200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000). Adequate compliance with procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in the IEP.” Walczak v. Fla Free Sch. Dist., 142 F. 3d 119, 129 (2d Cir. 1998); Rowley, 458 U.S. at 206. “Multiple procedural violations may cumulatively result in the denial of FAPE even if the violations individually did not.” R.E. v. N.Y. City Dept. of Ed., 694 F.3d 167, 190-91 (2nd Cir. 2012).The failure of a school district to provide a FAPE for a disabled student may arise out of substantively inadequate or inappropriate IEP and/or placement (Rowley, 458 U.S. at 192) and/or procedural inadequacies that (i) "impeded the student's right to a free and appropriate education," (ii) "significantly impeded parent's opportunity to participate in the decision-making process regarding a free and appropriate public education to parent's child" or (iii) "caused a deprivation of educational benefits." 20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR 200.513 (a)(2);8 N.Y.C.R.R. § 200.5(j)(4)(ii); R.E., 694 F.3d at 190.

The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress in light of his circumstances.” [emphasis added] Endrew F., 137 S. Ct. at 1002; A. R. v. Katanoh Lewisboro Union Free School District, 2019 WL 6251196 (S.D.N.Y. Nov. 21, 2019). In A.M. v. New REDACTED City Dept. of Education, 845 F.3d 523, 545 (2d . Cir. 2017), the 2d Circuit stated the R.E. case “stands for the unremarkable proposition that, when the reports and evaluative materials present at a CSE meeting yield a clear consensus, an IEP formulated for the child that fails to provide services consistent with that consensus is not ‘reasonably calculated to enable the child to received educational benefits.” Id, citing Rowley, 458 U.S. at 207.

Subsequent to its development an IEP must be properly implemented. 8NYCRR § 200.4(e)(7).The sufficiency of the placement is determined by the IEP. R.E., 694 F.3d at 186-88. Speculation that the school district will not adequately adhere to the IEP or the speculation that a “bricks-and-mortar” institution a student is assigned would have been unable to implement student’s IEP is not an appropriate basis for the unilateral placement Id. at 195; E.D. v. New REDACTED City Dep’t. of Ed., 611 Fed. App’x 728, 731 (2d Cir. 5/8/2015); T.Y. v. New REDACTED City Dep’t of Ed., 584 F.3d 412, 419 (2d Cir. 2009); R. B. V. New REDACTED City Dep’t of Ed., 589 Fed. App’x 572,576 (2d Cir. 10/29, 2014).

A district is required to implement the IEP and parents are within their rights to compel a compel district to adhere to the terms of a written plan. 20 U.S.C. §§ 1409(9)(D); 1414 (d)(2); 34 C.F.R. §§ 300.17(d); 300.323; 8 NYCRR § 200.4(e). An assignment of a student to a particular school must be made in conformance with the CSE’s IEP and district is not permitted to deviate. M.O. v. New REDACTED City Dep’t of Ed., 793 F.3d 236, 244 (2d Cir.2015); R.E., 694 at 191-92; T.Y., 584 F.3d at 419-20A. A school district’s proposed placement must be evaluated prospectively, at the time of the parents’ placement decision. M.O., 793 F.3d at 244-245 (2d Cir. 2015).

2. Burlington -Carter Analysis For Unilateral Placements The courts have determined the remedy of reimbursement to 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 obtained for a student were appropriate and equitable considerations support the parents claim. Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359, 370-71 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); R. E., 694 F. 2d at 184-85; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 (2d . Cir. 2007). In Burlington (471 U.S.at 370-71), the Court found that Congress intended retroactive reimbursement to parents by school districts as an available remedy in a proper case under the IDEA. See also, Gagliardo, 489 F.3d at 111 (2d . Cir. 2007).

Pursuant to Burlington and Carter, the three prong “Burlington -Carter” Test was created and is now commonly applied in cases where the question of whether reimbursement or direct funding for payment for educational services and/or related services obtained by a student upon unilateral placement by his or her parents is an appropriate remedy. M.P.G. ex rel. J.P. v. New REDACTED City Dep't of Educ., 2010 WL 3398256 (S.D.N.Y. Aug. 27, 2010); R.K. ex rel. R.K and S.L v. New REDACTED City Dep't of Educ., 56 IDELR 168 (E.D.N.Y. Jan 21, 2011). The “three-prong” analysis is as follows: (1) Prong 1- the school district’s services, IEP and/or placement offered to the student are inadequate, inappropriate or improper;(2) Prong 2 -the services selected by the parents are appropriate; and (3) Prong 3-the balancing of equitable considerations favor the parents. Id. Burlington v. Dep’t of Educ., 471 U.S. at 369-370; Florence County Sch. Dist. Four, 510 U.S. at 12-12.

The burden of proof is on the school district during an impartial hearing related to special education in New REDACTED, except that a parent seeking reimbursement for their expenditures for private educational services obtained for a student has the burden of proof regarding Prong II (the appropriateness of the placement). N.Y.S Ed. Law § 4404(c)(1); R.E., 694 F. 3d at 184-85. This includes the burden of persuasion and production in a due process hearing, except that a parent seeking unilateral placement has the burden of persuasion and burden of production on the appropriateness of such placement. N.Y.S Ed.. Law § 4404(c); see, Hardison v. Bd. of Education of Oneonta City School Dist., 773 F.3d 372, 386 (2d Cir. 2014); R.E. at 184-85; see also, M.P.G. v. New REDACTED City Dep’t. of Ed., 2010 EL 3398256 at *7 (S.D.N.Y. 8/27/2010).

In order to meet the Prong II burden, parent(s) must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student” and is “reasonably calculated to enable the child to receive educational benefits.” Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 2007 WL 2982269 (Oct. 15, 2007). However, the private school placement “need not meet the definition of a free and appropriate public education” or “state education standards or requirements” of appropriateness. Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d. Cr. 2006). While parents are not under the same requirements for placement of their child as the DOE, parents must demonstrate that the “services are necessary to permit the child to benefit from instruction.” Gagliardo, 489 F.3d at 112; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2nd Cir. 1988).

No one factor is necessarily dispositive in determining whether a parent’s unilateral placement is reasonably calculated to enable a student to receive educational benefits as required to determine “appropriateness” under Prong II. Frank G., 459 F.3d at 364.”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 services a child’s individual needs.” Id. “They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child” and “supported by services as are necessary to permit the child to benefit from instruction.” Frank G., 459 F.3d at 364;see also, Walczak, 142 F.3 at 130.

In examination of the equities under Prong III the following examination is made: (i) parents failed to provide the District with timely notice; (ii) prior to the student’s removal, the District informed the parents of its intent to evaluate the student, but the parents did not make the Student available for evaluation, (iii) whether the parents’ actions were unreasonable, (iv) whether the cost of private placement is unreasonable and (v) whether there was a lack of parental cooperation with the school district. 20 U.S. § 1412(a)(10(C)(iii)(I – III); 34 C.F.R. § 300.148(d)(1-3); Florence County Sch. Dist. Four v. Carter, 510 U.S 7, 16 (1993); Werner v. Clarkstown cent. Sch Dist., 363 F. Supp. 2d 656 (S.D.N.Y. 2005). Denial or reduction of tuition reimbursement is justified where there is no indication the parents ever intended to return their child to a placement offered by the school district. J.S. v. Scarsdale Union Free School Sit., 862 F. Supp.2d 635, 675 (S.D.N.Y. 2011). Compensatory Education

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE or equitable services. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008); E.M v. New REDACTED City Dep’t of Educ., 758 F. 3d 442, 451 (2d Cir. 2014)(compensatory education is remedy designed to “make up” for a denial of FAPE). An award of compensatory education is an equitable remedy that "should aim to place disabled children in the same position they would have occupied but for the school district's violation of the IDEA." Reid v. District of Columbia, 401 F.3d 516, 523 (D.C. Cir. 2005). Compensatory education is "replacement of educational services the child should have received in the first place." Id. at 518; see also, Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 (2d Cir. 2015).

An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. Compensatory education may be awarded to students under the age of twenty-one. Student X. v. New REDACTED City Dep't of Educ., 2008 WL 4890440 (E.D.N.Y. Oct. 30, 2008). Compensatory Education awards should be designed to "appropriately address the problems with the IEP." P. v. Newington, 546 F.3d at 123.

There are two approaches to fashioning a compensatory education award, a "quantitative approach" (see M.C. v. Cent. Reg' l Sch Dist., 81 F.3d 389 (3d Cir. 1996)) or "qualitative approach," i.e., "a flexible approach, rather than a rote hour-by-hour compensation award.” See Bd. of Educ of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007); see also, Reid, 401 F.3d at 518. An IHO may order an escrow account or “trust fund” also referenced as a “bank” of compensatory hours/funding for compensatory education and services. Doe v. E. Lyme Bd. of Educ., 962 F. 3d 649 (2d Cir. 2020); Doe v. E. Lyme Bd. of Educ., 790 F. 3d 440 (2d Cir 2015); Streck v Bd. of Educ. Of E. Greenbush Cent. Sch. Dist., 408 F. App’x 411 (2d. Cir. 2010). An IHO can award compensatory services to a student denied FAPE if such deprivation “can be remedied through the provision of additional services.” Bd. of Educ. V. Munoz, 16 A.D.3d 1142 (4th Dept. 2005).

The District bears the burden of production and persuasion with respect to an appropriate compensatory award for denial of FAPE. N.Y. Ed. Law § 4404.

ANALYSIS

Prong I- The District Did Not Sustain Its Burden Of Proof That Student Was Offered A FAPE.

I find the District did not bear its burden of proof that it offered Student a FAPE in relation to the 2021-2022 school year and the issue of whether Student was required to take “make up” classes in order to be able to advance to 10th grade by September of 2021. AS stated before this is an unusual case that does not fit into the typical model for examining FAPE, compensatory education and reimbursement to Parent for services obtained due to an asserted denial of FAPE.

The District had the burden to prove that it offered the disabled Student a FAPE. The District chose not to put a direct case on. District did not provide any evidence to counter the Parent’s claim that REDACTED failed to issue grades or a transcript for Student for the relevant time period. The y provided no testimony to prove that Student did not receive grades due to Student’s failure to attend which the District seeks to assert was Student (and Parent’s fault) due to chronic absenteeism. But District provided no proof of this.

If District’s defense is that Student did not receive a transcript due to Student’s chronic absenteeism then the burden of proof was on the District to make a showing through evidence and/or testimony. District failed to prove this.

District’s assertion that student has no records at REDACTED due to chronic absenteeism is complete conjecture. Further, it is noted that the documents provided by the District show Student suffered from multiple serious mental health issues prior to September and October of 2020 which included documented school refusal, a symptom of her mental health problems. Still it is noted that District failed to produce even an attendance record to prove Student had chronic absenteeism during this period.

The District provided no proof that refuted the Parent’s assertions regarding the confusion from September 21 through October 30 at REDACTED as to Student’s status as a disabled Student with an IEP, her need for counseling and ICT and that her schedule was confusingly changed all while classes were remote.

It is noted that REDACTED was not an appropriate placement at the time by the District themselves as it was insufficiently supportive, and Student should have been placed in a more restrictive environment with more support according to the District’s own recommendations.

Therefore, the District has raised no viable argument to support that it provided Student with a FAPE or that Student was somehow responsible for the lack of transcript and records. The District did not present evidence or testimony to suggest Student was not entitled to grades or credit for the first quarter of the 2020-2021 school year when enrolled at REDACTED. They did not dispute and the evidence supports Student was enrolled at REDACTED on the last day of the marking period. , District has not disputed that Student needed a transcript from REDACTED to get full credit for 9th grade or she would have not been able to advance to 10th grade

The District failed to prove by a preponderance of the evidence that it provided Student with the information necessary to advance to 10th grade or that would have prevented the need for Student to obtain credits for quarter that no records were provided by District. The December 2020 IEP program offered to Student for the 2021-2022 school year was substantively inadequate given the information the CSE/IEP team had to review and the method in which it was evaluated. The December 2020 IEP was unlikely to provide the Student with a meaningful benefit or anything beyond trivial advancement for the 2021-2022 school year. Prong II-Appropriateness of Parent Obtaining Compensatory Services from REDACTED.

Parents argue this matter falls under a “compensatory education” analysis and therefore they do not have to prove appropriateness. IHO Ex. VI. But, when a parent has unilaterally provided special education services to their child and it must be determined whether a district may be required to reimburse or fund the expenditures for the private educational services obtained by the parent unilaterally, the Burlington/Carter framework is typically applied. See Burlington/Carter Test: Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t of Ed., 471 Y.S. 359, 369-70 (1985), see also, R. E. v. New REDACTED City Dep’t of Ed., 694 F.3d 167, 184-85 (2nd Cir. 2012); T. P. v. Mamaroneck Union Free Sch. Dist., 554 F. 3d 247, 252 (2d. Cir. 2009); SRO Appeal No. 21-119, p. 11; see also, e.g., SRO Appeal No. 16-008, SRO Appeal No 20-042, SRO Appeal No 20-042, SRO Appeal No 20-094, SRO Appeal No 21-141.

As discussed above the District failed to present any evidence or testimony that Student was not entitled to grades/credit for the first quarter of the 2020-2021 school year while enrolled at REDACTED. Further, District has not disputed that Student needed a transcript from REDACTED to get full credit for 9th grade or she would have not been able to advance to 10th grade. attendance at REDACTED allowed Student to earn the credit for 9th grade. Also there is no dispute that Student needed to attend a program like REDACTED in order to earn credit for the first semester that REDACTED provided no records to enable her to start 10th grade in September 2021.

Parents provided sufficient testimony and documentary evidence that the program at REDACTED was appropriate, and Student’s needs were met with an individualized program to obtain credit for the first quarter of the 9th grade year and she successfully did obtain the credit and advanced. Tr. 190, 207-11, 295-96; P Ex. F and O. REDACTED appropriately met Student’s needs for the Summer of 2021.

The testimony of the witnesses and other documentary evidence (as delineated in the Findings of Fact above established that REDACTED addressed Student’s needs with a program specifically designed to meet her specific needs and deficits to obtain the credit not issued by REDACTED for the first quarter of 2020-2021 school year , allowing Student to advance to 10th grade. Therefore, Parents have met their Prong II burden.

Prong III-Equitable Considerations Regarding Funding of the Unilateral Placement.

I do not find there are any equitable considerations that would limit or reduce Parent’s claim for reimbursement. Parents by all accounts have been cooperative.

The District raised Student’s “chronic absenteeism” as an equitable considerations. But, as noted at the hearing and herein, this claim of chronic absenteeism was not proven and should have been raised as a basis for why there was no denial of FAPE. As the District failed to put on a case with regard to FAPE and also provided no evidence of chronic absenteeism from September 21, 2020 through November 1, 2020 there is no basis for any such finding.

The District harped on the fact Student had a problem with absenteeism in the previous school year. But the District’s own evidence supports that Student had issues with school refusal that were a direct symptom related to her OHI disability. Considering Student was in REDACTED which was not an appropriately supportive environment, blaming Student for the very symptoms of her disability as the basis of an argument that the “equities” do not favor Parent smacks of bad faith. Regardless, the District failed to show chronic absenteeism during the relevant period was a factor in REDACTED failure to issue a transcript.

As to notice, the Parent’s notice of placement at REDACTED to obtain the necessary credit was approximately a week after Student started her classes. But, considering the failure of the District to produce any documents in May of 2021 when requested and subpoena to show a transcript existed (or that Student was chronically absent by way of reason for lack of transcript) and the back and forth in May of 2021 informing District and REDACTED this transcript was necessary for Student to advance to 10th grade, I do not find it would be equitable to deny Parents full reimbursement due to this lateness of notice and the unique facts of this case.

Parents also provided evidence that they entered into a contract and paid the tuition in full for the summer services and therefore are entitled to full reimbursement of tuition paid to REDACTED for the 2021 Summer classes.

PARENTS’ 504 CLAIM

As Parent is entitled to reimbursement under the IDEA and NYS Education law, a 504 analysis is not required.

But I do note in the alternative, Student was denied the benefit of receiving grades/credits to advance in high school for a marking period she was enrolled in a District school. The testimony and the evidence show REDACTED and the District failed to provide the credits/grades to a Student with a disability with was unquestionably enrolled during the first quarter of the 2020-2021 school year in a District school. The unwillingness of REDACTED or District to produce a transcript or a viable explanation as to why a transcript was not provided , despite being placed on notice of the need for such document is evidence of bad faith and gross misjudgment and violation of student’s rights under Section 504.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:

1. ORDERED that the District denied Student a FAPE under the IDEA and New REDACTED State Education Law and denied Student’s rights under Section 504 of the Rehabilitation Act;

2. IT IS FURTHER ORDERED Parents appropriately placed Student in an individualized program at REDACTED during the Summer of 2021 in order to make up the grades/credits that the District denied provision to Student and that was necessary for Student to advance to 10th grade;

3. IT IS FURTHER ORDERED that the New REDACTED City Department of Education reimburse Parents the entirety of student's tuition or fees for the 2021 Summer programming she received at REDACTED in the amount of $16,461.00; and

4. IT IS FURTHER ORDERED that the New REDACTED City Department of Education shall immediately comply in all respects with this Decision and Order.

SO ORDERED.

DATED: May 28, 2023

Stephanie Seto, Esq

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New REDACTED 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.

APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD

Redacted

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s Exhibits entered at the hearing on the merits and “D-IHO” for District’s exhibits entered into the record on the hearing on District’s motion to dismiss and reentered at the hearing on the merits as “D-IO” exhibits. (See Tr. 248-249). “IHO” exhibits are the Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.