New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 560525 - NYC: 216503

FINDINGS OF FACT AND DECISION

Case Number: 216503

Student's Name: [STUDENT]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 07/06/2022

07/22/2022

07/29/2022

Actual Record Close Date: 08/22/2022

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 11/15/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

[REDACTED], PSY.D., Clinical Director,

[REDACTED] School

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 07/06/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 07/22/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

[REDACTED], Parent

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 07/29/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

DEBORAH RICHARDSON, Parent

For the Department of Education: [REDACTED], District Representative

DOCUMENTS ENTERED INTO THE RECORD

PARENT DOCUMENTS

EX DATE DOCUMENT Page(s)

Entered 07/06/2022

A 9/9/21 Hearing Request / Due Process Complaint (DPC) 8

Entered 07/22/2022

B 3/3/21 Individualized Education Plan (IEP) 21

C 8/19/21 Ten Day Notice 4

D 8/19/21 Ten Day Notice Confirmation 1

E 1/26/21 Developmental Evaluation 24

F 2/15/21 Discharge Summary and Aftercare Plan 4

G 3/22/21 Letter of Support from [REDACTED] 1

H 5/10/21 [REDACTED] Enrollment Contract 3

I 5/21/21 [REDACTED] Tuition Affidavit 1

J 8/5/21 Recommendation Letter from Pediatrician 1

K 11/27/21 Order on Pendency 6

L 6/9/22 [REDACTED] Tuition Affidavit 1

M 2021-2022 [REDACTED]

Quarter 1 Educational Evaluation 10

N 2021-2022 [REDACTED]

Quarter 2 Educational Evaluation 10

O 2021-2022 [REDACTED]

Quarter 3 Educational Evaluation 8

P 2021-2022 [REDACTED]

Quarter 4 Educational Evaluation 8

Q 7/19/22 Affidavit of Testimony: [REDACTED] 9

R 7/22/2 Affidavit of Testimony: [REDACTED] 10

Sworn to on 07/22/2022

Entered 07/29/2022

S 2021 1040 Tax Form 2

HEARING OFFICER DOCUMENTS

Entered 07/06/2022

I Notice of appointment, 06/24/2022, four pages

Entered 07/22/2022

II Consolidation order, 7/13/2022, three pages

III Pendency Order, 11/24/2021, six pages

DEPARTMENT OF EDUCATION

None

INTRODUCTION

On 06/24/2022, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Hearing commenced with a previous IHO, on 11/15/2021, at which time a Pendency Order was issued. (Ex K)

Hearing commenced, with the current IHO, on 07/06/2022, to allow the DOE an opportunity to present a defense to the allegations contained in the DPC.

The DOE opted not to appear, or otherwise defend against the allegations contained in the DPC. (Ex A)

Appended to the record are lists of persons in attendance and the documents received in evidence.

Due Process Complaint (DPC) alleges a failure of the DOE to offer the Student a Free Appropriate Public Education (FAPE) for the end of the 2020-2021 school year, and the entire, ten month, 2021-2022, school year. (Ex A 1)

Parent seeks a variety of forms of relief to remedy the alleged failure, including, funding for unilateral placement (UP), at [REDACTED] School (UP), with transportation and funding for meals. (Ex A)

THE POSITION OF EACH PARTY

Hearing commenced, with this IHO, on 07/06/2022, to allow the DOE an opportunity to present a defense to the allegations contained in the DPC. The DOE did not appear.

Parent Attorney explained that much of the sought after UP Tuition has already been paid under a Pendency Order. (T 46, Ex K)

Parent Attorney also withdrew claims related to Meals, and limited relief sought regarding Transportation to a finding of Student entitlement. (T 61)

Parent Attorney contends an IEP meeting was held, however, the IEP, of March 2021, was never received by the Parent. (T 63)

Student attended the UP from April 15th to June 16th, of the 20-21 school year. The reenrolled at the UP for the 21-22 school year. (T 65)

UP Tuition outstanding balance amounts to $2,130.00, for the 21-22 school year; and

$14,000.00, for the 20-21 school year. (T 67-68, Ex L)

Regarding Student classification, Parent Attorney states: “When the DOE deferred is case to the CBST without telling the Parent, a number of schools contacted the Parent and they informed her that the classification was emotional disturbance, but we have no way of knowing if that's, in fact, what they said because we don't have the IEP.” (T 69)

Parent Attorney acknowledged that the IEP was eventually disclose as part of the present Hearing process. (T 84, Ex B)

Parent Attorney recounted some of the Student history leading to placement at the UP, including witnessing [REDACTED], a significant amount of anxiety and depression, and [REDACTED] disease. (T 70-71)

Parent’s turned to the Committee on Special Education, in spring of 2020, but was told the person to contemplate deferral to the Central Based Support Team (CBST) for placement in a non-public school, was not there. Parent placed Student at the UP, which properly supported the Student. (T 71)

Parent Attorney contends the UP met the Student’s special education needs, and Parent meets the criteria for District funding of the UP Tuition. (T 72)

At Hearing, of 07/29/2022, Parent provided Testimony that included:

• • Not receiving a copy of the IEP from the DOE, until recently through the Hearing process (T 85-86, Ex B);
• • Exhibit S is a true copy of her tax filing (T 86, Ex S);
• • Student UP Tuition, for the 21-22 schoolyear is about $80,000.00;
• • Witness is the only person who contributes funds to the Tuition;
• • Witness cannot afford the Tuition and seek reimbursement (T 86); and
• • Witness seeks direct Tuition funding from the DOE. (T 87)

Parent position is supported via Documentary Evidence, considered below, which is uncontroverted, and found to be credible:

A 9/9/21 Hearing Request / Due Process Complaint (DPC)

Parent reviews Student educational history, and allegations of a denial of FAPE for the 20-21 and 21-22 school years. (Ex A 1-3)

Student challenges include: a diagnosis of “[REDACTED] Disease at the end of his fifth-grade year and has diagnoses of [REDACTED] (Chronic – Developmental Trauma Disorder) resulting from witnessing domestic abuse as a young child, ADHD (Combined Type - moderate), and Other Substance Use Disorder. He is also twice-exceptional (2E) and was previously admitted to the DOE’s Gifted and Talented program. It is the parent’s understanding that [STUDENT] has been classified with Emotional Disturbance by the CSE.” (E A 2)

Student struggled through school with difficulty in his [REDACTED]grade Integrated Co-Teaching Class (ICT, when academic performance deteriorated. (Ex A 2)

Student 9th grade Special Education Teacher Support (SETSS) program proved to be too large and caused significant difficulty, for the Student. (Ex A 2-3)

Anxiety and depression worsened, in spring of 2020. (Ex A 3)

After hospitalizations, Student began [REDACTED] grade as a remote student. (Ex A 3)

The Covid-19 pandemic impacted the Student to such degree that that: “Due to his intensifying self-medication difficulties, the parent enrolled him in [REDACTED], a residential REDACTED, on November 18, 2020.” (Ex A 4)

Student continued at this program, was evaluated, and determination was made that Student required a small, nurturing therapeutic environment. (Ex A 4)

Parent requested an IEP meeting, on 02/09/2021, and an IEP meeting took place, on 03/03/2021. At the meeting no recommendation was undertaken. (Ex A 4)

Without a recommendation, SETSS recommendation continued, and Parent sent a TDN to the DOE, regarding the Student enrollment at [REDACTED] School, on 03/26/2021. (Ex A 4)

Parent did not receive an IEP, assuming at the time the IEP was drafted, though contact came to the Parent from several non-public schools regarding the Student. (Ex A 5)

Parent submitted another TDN to the DOE, advising of proposed program defects. (Ex A 6)

Parent alleges a denial of FAPE, contends inability to fund UP Tuition costs and await reimbursement, thus seeking direct District funding for the Student UP Tuition, with transportation, and cost of meals. (Ex A 6-8)

B 3/3/21 Individualized Education Plan (IEP)

IEP confirms Student entitlement to special education services, classifying Student: Emotional Disturbance. (Ex B 1)

Recommendation is made to a Special Class 12:1+1, NYSED-Approved Non-Public Day School, with Counseling Services, and a 12 month school year. (Ex B 14-15)

C 8/19/21 Ten Day Notice

Parent details Student challenges and educational history; notifies the DOE of the alleged

Failure to offer a FAPE; failure to provide the Parent with a copy of the Student’s 03/03/2021 IEP; and intent to enroll Student at the UP, and seek District funding. (Ex C 1-3)

D 8/19/21 Ten Day Notice Confirmation The DOE confirms receipt of the TDN.

E 1/26/21 Developmental Evaluation

Testing discloses areas of academic, communication and behavioral delay. (Ex E 15-17)

Diagnosis include: [REDACTED] (Chronic – Developmental Trauma Disorder); ADHD (Combined Type - moderate); Other (or Unknown) Substance Use Disorder; and Parent-Child Relational Problem. (Ex E 19)

Recommendations include: various therapeutic interventions; academic supports; an educational environment which includes a small, safe, and nurturing environment, therapeutic 12 month school placement; and academic/testing accommodations. (Ex E 19-24)

F 2/15/21 Discharge Summary and Aftercare Plan

Details Student challenges, includes those with depression, anxiety, ADHD Suicidal letters; and drug use. (Ex F 1-2)

G 3/22/21 Letter of Support from [REDACTED]

Letter includes: Considering Student “risk factors, risk of regression and his needs, we strongly recommend [STUDENT] continue his schooling in a small structured therapeutic school environment with access to a school psychologist as needed. [STUDENT] will clearly benefit from having a full time therapeutic structured program that will support him being able to utilize the skills needed to navigate his emotional needs productively, thereby allowing him to have academic success.” (Ex G 1)

H 5/10/21 [REDACTED] Enrollment Contract

Student 21-22 Tuition, at the UP, is set forth as $77,200.00. (Ex H 1)

Parent obligates herself to payment of Tuition, via signature. (Ex H 3)

I 5/21/21 [REDACTED] Tuition Affidavit

Balance due, for Student 20-21, UP Tuition, for attendance from 04/15/2021 through 06/16/2021, is $14,500.00.

J 8/5/21 Recommendation Letter from Pediatrician

Considering Student challenges, recommendation is made: “As a result of this chronic condition and the potential for symptoms at any time, [STUDENT] requires accommodations which include a limited travel time of 60 minutes or less, unlimited bathroom access, unlimited access to the school nurse with a place to rest when necessary, and excused absences for IBD-related symptoms, and when attending, medical appointments due to the illness” (Ex J 1)

K 11/27/21 Order on Pendency

Pendency found to exist at the UP. (Ex K 5)

L 6/9/22 [REDACTED] Tuition Affidavit

Balance of Tuition due, for the 21-22 school year, set forth as $2,130.00. (Ex L 1)

M 2021-2022 [REDACTED] Quarter 1 Educational Evaluation

Student program details Student areas of special education need, schedule, goals, supports, and progress.

Unique, and Student specific goals are detailed, for example, regarding goal to “Be on time to school in the morning”:

Advisor Feedback: Arriving to school on time and working on your sleep hygiene has been an ongoing process this quarter. Though your performance in this regard has been inconsistent, you have generally shown improvement, highlighted by a stellar week of timely arrivals after we spoke one on one about this issue. I look forward to you continuing to work on this in the upcoming quarters as it will be a major key to keeping your grades high and potentially making the honor roll, not to mention developing habits that will serve you later in life. (Ex M 2)

In Writing:

During the first quarter of Creative Writing, students inquired into the process of writing original content that best suited their skill sets while studying and replicating two different points of view in fiction writing (first person, first person peripheral) and reacting to philosophical material pertaining to writing. Students responded to prompts; analyzed quotes from famous authors and famous books; drafted mini screenplays; commented on writing advice from a published novelist; played writing games; crafted short stories; read articles about proper grammar usage; incorporated popular culture into narratives; and listed ideas that could inspire future writing. Students delivered one or two pieces per week. For their final project of the quarter, each student drafted a Wikipedia page for a character and then wrote a five-paragraph story about that character. Assessment was based on the written work, writing process, and classroom conduct.

[STUDENT],

You were added to the class late in the quarter, so you didn't get to complete the full quarter course load. As such, I can only grade you on your final story for the quarter. It was very good, showcasing both a good sense of humor and a strong developing voice. I will encourage you in future quarters to refrain from engaging with other peers during writing time. I believe in you as a developing writer and I can't wait to read what you come up with in the upcoming quarters.

Recommendations:

--Establishing a consistent writing practice

--Refrain from getting distracted by peers during class

--Continue to write about what you're passionate about (Ex M 3)

N 2021-2022 [REDACTED] Quarter 2 Educational Evaluation

Continues to detail Student areas of special education need, schedule, goals, supports, and progress.

O 2021-2022 [REDACTED] Quarter 3 Educational Evaluation

Continues to detail Student areas of special education need, schedule, goals, supports, and progress.

P 2021-2022 [REDACTED] Quarter 4 Educational Evaluation

Continues to detail Student areas of special education need, schedule, goals, supports, and progress.

For example, for Routines/Planning/Organization:

Students meet with their advisors three times daily, both individually and in small groups. Morning check-ins are designed to help prepare students for the day and assess whether there are any issues that might impact their functioning that need to be addressed. Midmorning advising time is structured to help students maintain organization, compose weekly goals, learn coping skills, and participate in group discussions. Each week, advisors meet individually with students to provide feedback about their academic and behavioral progress in each class. At check-out, advisors meet with students to review their planbooks and ensure that they have all materials necessary to complete homework. Additionally, advisors and students meet as needed to resolve any additional issues (eg., resolve conflicts with peers; request accommodations from teachers). (Ex P 1)

Student efforts, in light of his challenges, are noted, in the area of Writing: “You had an uneven final quarter in Creative Writing. You missed a lot of class time due to illness and were excused from the final exam because of illness. You worked quickly when turning in assignments, especially during writing sprints when you asked to leave a comment, and showed an eagerness to catch up near the end of the quarter. In particular, your Five Subway Riders assignment was well done. When you reflected on this piece, you did so thoughtfully.

Recommendations: --Work for more sustained stretches when writing next year” (Ex P 3)

Q 7/19/22 Affidavit of Testimony: [REDACTED]

Clinical Director, at the UP, provides Testimony that includes:

• • A review of Witness qualifications (Ex Q 1);
• • General characteristics of the UP include:
• • college preparatory educational program within a strong therapeutic milieu that provides the necessary academic, social and emotional help for them to succeed. Stevenson aims to help its students achieve on a level commensurate with their abilities, and to prepare them to cope with the demands and pressures of both college and everyday life (Ex Q 1-2);
• • Approximately 80 students currently attend [REDACTED], between [REDACTED]and [REDACTED] grades. The average class size is 5- 12 students. [REDACTED]’s curriculum and graduation requirements are substantially equivalent to those of New York State;
• • Approximately 90%-95% of [REDACTED]’s students have IEPs that contain classifications of either Emotional Disturbance or Other Health Impairment, though some have other classifications;
• • Daily Student Prep;
• • Time in which all students receive additional assistance, including individual tutoring; additional time provided after school four times per week for students who need extra time completing assignments and/or additional support with organizational and study skills;
• • quarterly student reports, which provide assessments of the current quarter’s work and are used to create objectives for the subsequent reporting periods;
• • “Wednesday Sheets,” which provide individual feedback for each student are reviewed 1:1 with students by their advisor on a weekly basis;
• • A copy is also shared with parents each week; our Learning Specialist, who is a certified special education teacher, assists and trains teachers to address various learning needs as well as works with individual students who need further individualized support;
• • Student schedules are personalized by our Curriculum Coordinator who reviews prior testing and school records to determine appropriate placement in classes, rather than relying solely on age or grade (Ex Q 2);
• • clinical program that includes on demand individual counseling in our Counseling Center;
• • Advisory Program where Advisory group meetings are designed to monitor each student’s academic, social, and emotional functioning as well as provide each student with consistent support as needed throughout the day. Executive functioning, interpersonal interaction, coping, and self-advocacy skills are targeted for development in the Advisory program;
• • All clinical and non-clinical staff at Stevenson are trained in [REDACTED] ([REDACTED]). [REDACTED] is an evidence-based therapy for complex clinical issues; (Ex Q 3); and
• • Our program model also includes daily staff meetings among teachers, administrators and clinicians to review and collaborate on students’ progress/needs; (Ex Q 4);
• • Familiarity with the Student;
• • Involvement with Student’s admission process, and review of the process (Ex Q 5-6);
• • Review of Student diagnosis and challenges (Ex Q 5);
• • Student was accepted to the UP, and attended from April to June 2021, and enrolled and attended the full 10-month, 2021-2022 school year (Ex Q 6);
• • Regarding Student program:
• • 2021-2022 courseload was individualized to his academic level and interests (Ex Q 6-7);
• • progress reports from the 2021-2022 school year show that [STUDENT] was an engaged student throughout the year and that he made progress. He did particularly well in his literature and creative writing classes. [STUDENT] was an asset to his whole class as well, by contributing to class discussions, volunteering to be the class note-taker, and offering to help other students. [STUDENT] struggled more in math and benefitted when he met one-on-one with his math teacher. More importantly, [STUDENT] remained engaged in his education throughout the year and benefitted from the supports the [REDACTED] and his teachers provided to him (Ex Q 7:
• • Student supports include: redirecting his focus when he becomes distracted, redirecting him back to task, and allowing Student to take breaks and/or move around as needed; teachers employed other strategies to ensure his understanding of the material, such as breaking down the material into manageable sections and pacing the delivery of content; Student had access to the UP learning specialist, whom Student could approach for 1:1 support for any academic issues or struggles (Ex Q 7;
• • Student has progressed with [REDACTED] intervention to address struggles, like getting to school on time (Ex Q 7-8); and
• • UP collaborated with Student’s outside clinicians (Ex Q 8).
• • Witness concludes with the opinion that the UP was an appropriate placement for the Student, for the 20-21 and 21-22 school year, equipped to address Student social, emotional, and academics needs through UP supports and individualized instruction. (Ex Q 9)

R 7/22/2 Affidavit of Testimony: Deborah Richardson Sworn to on 07/22/2022 and Student’s mother provides Testimony that includes:

• • Student family and educational history, including traumas; diagnoses with [REDACTED] disease; and psychiatric hospitalizations in the summer of 2020 (Ex R 1-3);
• • Student began the 20-21 school year as a remote student;
• • Despite program support the Student could not engage in remote learning, and anxiety, ADHD, and other challenges grew;
• • In November of 2020 the Student was enrolled in a residential substance abuse and mental health facility (Ex R 3);
• • While Student managed to pass his fall 2020 courses, his clinical team advised that he would almost certainly require more intensive support upon discharge from the program (Ex R 3);
• • Student received a comprehensive neuropsychological evaluation, included the Student’s array of diagnosis, and areas of delay (Ex R 4, Ex E);
• • Recommendation was made that the Student requires a small, nurturing therapeutic school placement that serves twice exceptional students in need of trauma-informed supports (Ex R 4, Ex E);
• • Parent forwarded the Evaluation to the CSE, and requested an IEP meeting, for the Student (Ex R 4);
• • IEP meeting was held on March 3, 2021, to develop a program for the remainder of [STUDENT]’s 2020-2021 school year and for his 2021-2022 school year (Ex R 4);
• • The CSE ended the meeting without making any recommendation at all. [STUDENT] was left with just his previous recommendation for SETSS, which would not have been
• • anywhere near what he needed (Ex R 5);
• • Parent notified the DOE of the intent to place Student at the UP, for the remainder of the 20-21 school year (Ex R 5);
• • Parent was advised, by the CSE, the Student would be referred to the CBST for placement in a non-public school, however, Parent was never contacted by the CBST (Ex R 5);
• • Parent heard from several non-public schools, though she had not received a copy of the relevant IEP (Ex R 5);
• • By August 2021, Parent still had not received [STUDENT]’s IEP, nor had the CSE or the CBST contact me. “So, on August 19, 2021, I filed another ten-day notice, informing the DOE that if they failed to provide [STUDENT] with an appropriate program and placement, I would re-enroll him at [UP] for the 2021-2022 school year. The DOE did not respond. Nor did they respond after my due process complaint was filed on September 9, 2021” (Ex R 6);
• • Parent believes the UP: “has turned out to be a truly excellent fit for [STUDENT] and his needs. At the most basic level, the school knows and understands [STUDENT]’s actual diagnoses. The morning advisory meeting gives [STUDENT] structured support and helps him organize himself for the day ahead. The small size of the school and his classes has meant that [STUDENT]’s teachers really know him and understand the type of attention he needs to stay on task. The school is also academically challenging, and I’ve seen [STUDENT] engage deeply with his class material, especially writing and literature” (Ex R 6);
• • Parent details, from her perspective, UP supports that addressed Student challenges (Ex R 7-8);
• • Parent states that she would have considered an appropriate school, if the CBST process had been explained to her (Ex R 8);
• • Parent concludes with her support for the UP: “However, I must say that if it weren’t for [UP], I doubt that [STUDENT] would still be in high school. The semester before he started [REDACTED] [STUDENT] didn’t earn any credits at all. The school has truly changed the course of his future.” (Ex R 9)

S 2021 1040 Tax Form

Parent gross income is evidence to be about $40,000.00, for the 2021 calendar year.

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their 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 final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 20-21 and 21-22 School Years

DOE opted not to present a defense to the Parent’s allegations.

The DOE has evidenced neither the development of an appropriate IEP, nor placement, for the 20-21 or 21-22 school years.

DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 20-21 or 21-22 school years.

I find the DOE failed to offer the Student a FAPE for the 20-21 and 21-22 school years.

UP Placement for the 20-21 and 21-22 School Years

Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 20-21 school year.

The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. I find that the documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent.

Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex E,F, G, H, I, J, M, N, O, P, Q & R)

I find UP provides an appropriate education and program for the Student for the 20-21 and 21-22 school years.

The UP provides special education services specifically tailored to meet the needs of the Student.

TUITION FUNDING 20-21 and 21-22 School Years

Parent is entitled to funding for the UP, 20-21 and 21-22, Tuition.

The DOE has denied a FAPE to the Student for the 20-21 and 21-22 school years.

Parent provides appropriate TDNs, providing notice to the DOE. (Ex C & D)

Student 21-22 Tuition, at the UP, is set forth as $77,200.00. (Ex H 1)

Parent obligates herself to payment of Tuition, via signature. (Ex H 3)

Balance due, for Student 20-21, UP Tuition, for attendance from 04/15/2021 through 06/16/2021, is $14,500.00. (Ex I)

Balance of Tuition due, for the 21-22 school year, set forth as $2,130.00. (Ex L 1)

With regard to fashioning equitable relief, one court has addressed whether it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so (Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). The court held that "[w]here... parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769 F. Supp. 2d at 428). The Mr. and Mrs. A. Court relied in part on dicta from earlier cases in which similar claims seeking direct retroactive payment to a private non-approved school were asserted (see Connors v. Mills, 34 F. Supp. 2d 795, 805-06 [N.D.N.Y. 1998] [opining that such financial disputes should be resolved within the administrative hearing process]; see also S.W., 646 F. Supp. 2d at 358-60). The Mr. and Mrs. A. Court held that in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs (Mr. and Mrs. A., 769 F. Supp.2d at 430).

In this matter the Parents choose to place, and continue Student placement at UP, without any DOE alternative.

Parent provides information relative to their limited financial capability. (Ex S)

Parent needs to meet the burden of production and persuasion with respect to whether they have the financial resources to "front" the costs of a unilateral placement and whether they are legally obligated for the student's tuition payments (Application of the Dep't of Educ., 12- 132; Application of a Student with a Disability, 12-036; Application of a Student with a Disability, 12-004; Application of the Dep't of Educ., 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041).

I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to direct DOE funding of the UP tuition, for the 20-21 or 21-22 school years.

I find the Parent is entitled to direct UP funding as Ordered below.

TRANSPORTATION

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

Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 16035). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]).

Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

Evidence above details various Student diagnosis and needs, evidencing a clear need for special education transportation. (Ex E, F & G)

Specific accommodation is are set forth as: a limited travel time of 60 minutes or less. (Ex J 1)

I find the Student is entitled to special education transportation, as Ordered below.

ORDER

• • The Department of Education (DOE) failed to offer the Student a FAPE for the 2020-2021 and 2021-2022 school years.
• • The [REDACTED] School (UP) served as an appropriate Student placement, and program, for the 20-21 and 21-22 school year.
• • The DOE shall directly fund Student, [REDACTED] School (UP), Tuition, as indicated below:

For the 20-21 school year: $14,500.00; and For the 21-22 school year: $2,130.00.

• • The DOE shall provide Parent with any documents or forms necessary to facilitate payment under this Order, within ten days of the date of this Order.
• • The Student is entitled to special education transportation for the 20-21 and 21-22 school years, which includes: a limited travel time of 60 minutes or less.
• • 6. This decision is subject to appeal and review by the State Review Officer.

DATED: August 22, 2022

DANIEL AJELLO

DANIEL AJELLO

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.