New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 560618 - NYC: 216572

FINDINGS OF FACT AND DECISION

Case Number: 216572

Student's Name: REDACTED

School District: REDACTED

Scho Hearing Requested By: Parent

Record Closed Date: December 10, 2022

Hearing Officer: Dora M. Lassinger

Procedural Background The student’s father (hereinafter “the parent”) filed an impartial hearing request on September 12, 2021, (Case No. 216572) alleging a denial of FAPE for the 2021/2022 school year and seeking funding for the unilateral placement of the student at REDACTED School (hereinafter the private school) and for the 2021-2022 school year, as well as the REDACTED summer program (hereinafter “the summer program”); as well as other relief. (Par. Ex. C). I was designated to hear this matter on January 3, 2022 The parent filed another impartial hearing request on December 23, 2021, (Case No. 223144) alleging a denial of FAPE for the 2020/2021 school year and seek funding for the unilateral placement of the student at the private school and the Summer Program for the 2020/2021 school year, and other relief. (Par. Ex. A). I was designated to hear this matter on December 28, 2021.

At the request of both parties, on January 4, 2022, I ordered that Cases 216572 and 223144 shall be heard separately. (IHO Ex. I).

The parent filed a third impartial hearing request on July 1, 2022, (Case No. 227752) alleging a denial of FAPE for the 2022/2023 school year and seek funding for the unilateral placement of the student at the private school for the 2022/2023 school year, and the summer program, and other relief. (Par. Ex. E). ^[1] I was designated to hear this matter on July 11, 2022. At the request of parent’s counsel, Cases 216572, 223144, and 227752 were consolidated by order dated July 22, 2022. (IHO Ex. II).

A hearing on the merits was held on October 17, 19 and 20 of 2022.

Department of Education (“DOE”) Position

• • The DOE presented documentary evidence only, and did not seek to defend its recommendations for the school years at issue. (Tr. p. 51). The DOE did not raise any equitable bars to reimbursement. (Tr. p. 264).

Parent’s Position

• • The parent argued that the DOE did not meet its burden of proving that it provided the student with a FAPE, that parental placement was appropriate for the three school years in question, and that the parent is entitled to tuition reimbursement for the three school years in question, including the summer programs. (Tr. pp. 53, 262-263).

Evidence at Hearing

• • The student attended a private pre-school. She received social skills training to bolster her development in that area. She attended a private school for kindergarten, where she demonstrated strength in reading, but difficulty with handwriting. She remained there through second grade. She then attended two different private schools for third through REDACTED grade. (Par. Ex. H).
• • She began attending the private school during the 2020/2021 school year, where she repeated REDACTED grade; and is now in her third year there, as a REDACTED-grade student. (Tr. pp. 177-178).
• • The student was evaluated in May 2019. Academically, she excelled in decoding and spelling, but her reading comprehension skills were somewhat weaker. In writing, the student struggled with independent sentence production. In math, she had difficulty with multi-digit addition and subtraction and in completing numerical operations. She presented with pervasive difficulties in social communication and responsivity. She was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and a Social Communication Disorder. It was recommended that she attend a school for students with special needs which provides a challenging curriculum, therapeutic supports, and daily individualized and small group instruction and behavioral interventions. Given the functional implications of her pragmatic communication disorder, the neuropsychologist recommended that the student receive individualized instruction in reading comprehension, written expression and small group intervention, as well as individual psychotherapy, focusing on anxiety management. (Par. Ex. G; Tr. p. 182, Par. Ex. ZZ). The neuropsychologist testified (by affidavit), that the private school and summer program were an appropriate placement for the student for the three school years in question. (Par. Ex. ZZ). The neuropsychologist did not make any recommendation for twelve-month programming in her 2019 report.
• • During the 2019/2020 school year, the student performed well at a private, special education school, and benefited from the more structured setting with a learning specialist for reading and writing. (Tr. p. 184). During the Summer of 2020, she attended the summer program remotely. She benefited from meeting the students who would be her classmates at the private school. (Tr. p. 185). The summer program included fun activities like cooking; which incorporated executive function skills. (Tr. p. 186). The parent feels that the structured socialization provided in the summer school prevented the student from regressing in her social interactions. (Tr. pp. 186-187).
• • On August 23, 2020, the parents provided 10-day notice that they intended to enroll the student at the private school for the 2020/2021 school year and seek funding, due to the CSE’ s failure to meet and develop an IEP for the 2020/2021 school year. (Par. Ex. B).
• • An IEP was developed on August 25, 2020 and the student was found to be eligible for special education services. The student’s parents participated in the IEP meeting. The student was classified with Other Health Impairment. The recommended placement was Integrated Co-Teaching Services, with related services of Counseling (1 x 30); Occupational Therapy (2 x 30 in a group); and Speech Language Therapy (“SLT”) 2 x 30, in a group. Twelve-month programming was not recommended. (DOE Ex. 1). The parents attempted to visit any sites which were offered, but did not receive a response to their messages. (Tr. p. 207).
• • For the 2020/2021 school year, the parents enrolled the student at the private school, which offered the opportunity for in-person instruction. (Tr. pp. 187-188).

The student benefited from the high teacher to student ratio and collaboration among providers, and developed confidence in her ability to function in the upper school. (Tr. pp. 188-189). The student repeated REDACTED grade at the private school, during the 2020/2021 school year as she was not ready for the upper school. (Tr. p. 203).

An IEP meeting was held on June 7, 2021. The recommended placement was Integrated Co-Teaching Services, with increased levels of Counseling, Occupational Therapy and Speech Language Therapy. Twelve-month programming was not recommended. The student’s parents participated in the IEP meeting. (DOE Ex. 3).

On August 22, 2021, the parents served ten-day notice that they intended to place the student at the private school for the 2021-2022 school year and seek funding. (Par. Ex. D).

• • During the Summer of 2021, the parents re-enrolled her in the summer school. The father testified that the student benefited academically and socially from the program. (Tr. p. 190). The program provided work on executive functioning, and social interactions, which were especially important during the pandemic. (Tr. pp. 191-192).
• • When she returned to the private school during the 2021/2022 school year, a behavior intervention plan (“BIP”) was developed for the student. ELA, which was an area of difficulty was taught individually. (Tr. pp. 193-194).
• • The student was evaluated again in February 2022 and was diagnosed with ADHD, Developmental Coordination Disorder, and Autism Spectrum Disorder (“ASD”). The private school was judged to be an appropriate setting for the student, as it accommodated the student’s need for a small classroom with a high teacher/student ratio, and a lot if individual attention and adult support. (Tr. pp. 195-196; Par. Ex. H). According to the parent, it was further recommended that the student continue to attend the Summer Program to address her psychosocial needs; and the parents re-enrolled her in the program. (Tr. pp. 196-197). ^[2]
• • At the hearing, the neuropsychologist who conducted the 2022 evaluation testified (by affidavit) that the private school and summer program were appropriate placements for the student. (Par. Ex. AAA).
• • For the current school year, the parents re-enrolled the student at the private school in a REDACTED program; which provides her with a one-to-one special education teacher that is focused on her, while she continues to attend classes at the private school. (Tr. pp. 198, 202).
• • Another IEP meeting was held on June 2, 2022, and the parents participated. The student’s classification was changed to Autism and the recommended placement was changed to a Special Class (12:1+1) with related services of Counseling, Occupational Therapy (“OT”); and Speech Language Therapy (“SLT”). Parent Counseling and Training as well as a full-time behavior management paraprofessional were added to the student’s IEP, and twelve-month programming was recommended. (DOE Ex. 5).
• • On June 16, 2022, the parents served ten-day notice of their intention to place the student at the private school and the summer program for the 2022-2023 school year and seek funding. (Par. Ex. F).
• • The Assistant Head of the private school, testified that he has a bachelor’s degree in Psychology and a Master’s Degree in Special Education. (Tr. p. 58). He heads support services at the school. He has experience as a special education teacher in public and private schools. He has New York State certification in Special Education and additional training in behavior modification. (Tr. p. 59).
• • The private school has a lower school (K-5) and Upper School (grades 6-12). The school provides individualized programs for twice exceptional students; which fully integrates social/emotional learning with high level academics. Support is provided for executive functioning, social cognition and social pragmatics. The school was recently accredited. The school services students who are intellectually gifted, and are also diagnosed with learning or social/emotional disabilities. (Tr. pp. 59-61).
• • Classes in the lower school capped at 10 students, with an average of four adults (2 head teachers, a psychosocial teacher and an associate teacher, if needed). In the Upper School, (from sixth grade), classes are more individualized, with a high level of support provided. (Tr. pp. 64-65, 82).
• • The instructional program provides a strong foundation in language arts, math science, and social studies; with a strong arts department. (Tr. p. 65). In the upper school, the curriculum includes Computer Engineering. The curriculum has a social/behavioral component. (Tr. p. 66). The small class size (three to five students, for seminars) allows for instruction to be individualized. (Tr. pp. 66-67).
• • Students have the opportunity to organize their day in morning meetings. (Tr. pp. 70-71). The school curriculum includes English Language Arts, focusing on effective reading and literature for social/emotional learning; Math, Science and Social Studies, the arts, and physical education, which is adapted to each individual student. (Tr. pp. 72-77).
• • Students have access to mental health clinician/psychologist, when needed. The private school clinical staff also coordinate with outside providers. (Tr. p. 78).
• • During the 2020/2021 school year, the student was educated in a group of ten students, which would split into smaller groups. Her ELA group consisted of three to five students. (Tr. p. 81). Her ELA teacher had a master’s in education and a certification in behavior management. (Tr. p. 83).
• • The student struggled with engaging in collaborative discussion within classes and perspective taking. She also struggled with punctuation and rules of writing, The student was encouraged to use graphic organizers and provided with extra time as well as visual goals and reminders. She received direct instruction; and encouragement to remain on task, to avoid frustration. She progressed in her ability to read and write for longer periods. She was able to convey her ideas in an organized, clear and structured way. (Tr. pp. 87-91).
• • For math, the student could perform long division, convert fractions to decimals, and round numbers. She had difficulty initiating or completing complicated tasks, managing her emotional reaction to frustration, and following multiple steps. (Tr. p. 91). Her math teacher provided individualized materials and one-to-one support, scaffolded notes and step by step visuals. (Tr. p. 92). She mastered REDACTED grade skills in fractions and calculations. (Tr. pp. 93-94).
• • In Social Studies, the student was taught in a small group setting, where she received individualized prompts, graphic organizers and extra time. She progressed in her ability to complete research projects, share a speech; and needed less teacher support as the year progressed. (Tr. pp. 95-96). For math, she was instructed in a class of no more than five students, by a teacher who had a Master’s Degree in science education and educational leadership. Materials were individualized, and scaffolded. The student progressed in her ability to produce more work as the year progressed (Tr pp. 97-98)
• • During the 2021/2022 school year, the student attended the Upper School. (Tr p. 98). Her Humanities and morning meeting teacher had a Master’s in reading instruction and a degree in special education. (Tr. P. 99). The student had strong writing skills, but. struggled with rushing through assignments; not providing detailed answers and frustration with changes. She also struggled with executive functioning and lack of organization. (Tr. pp. 99-100).
• • She was encouraged to write outlines; and was provided with verbal cues and prompting. The student progressed in her executive functioning skills, and meeting expectations for homework, with a lot of scaffolding and individualized help. (Tr. pp. 101-103).
• • The student received math instruction in a group of five students, and once per week individually. Her math teacher is a certified special education teacher. The student had strong skills in mental math. She struggled with emotional regulation, and lack of self-confidence in her ability, which triggered frustration and dysregulation. Her teacher provided individual instruction, and let her work at her own pace. In math, she progressed in her emotional regulation and self-confidence, which enabled her to successfully complete her assignments. (Tr. pp. 105-107). The student also progressed in science and world language. (Tr.pp.107-111).
• • For the 2022/2023 school year, the student was placed in a more structured class, for students who require more social/behavioral support. This class provided a smaller teacher/student ratio and more one-to-one attention. There are a total of five students in the program. Her teacher has a Master’s Degree in Special Education. Academic class sizes range from two to five students. The majority of her academic classes are taught one-to-one with her teacher. The student is performing well in this setting, and has grown in her confidence and ability to self-regulate. (Tr. pp. 112-114, 120). The student was placed in this more restrictive program due to instances of physical aggression and her inability to function in larger groups. (Tr. pp. 114-115). As a result of one instance when the student injured a teacher, she was removed from the school, and a re-entry plan was developed. (Tr pp. 128-129).
• • For all of the three school years at issue, the student received related services- of Counseling, OT and SLT, with licensed providers. All related services are typically provided an average of two hours per week (Tr. pp. 121-124). Behavioral plans were developed by staff who have master’s degrees in mental health and counseling, and who are overseen by the school psychologist. (Tr. p 125).

The student’s counselor (during the 2020/2021 school year) testified that she was the lower school chief psychologist during that school year. She supervised the student’s psychosocial teacher/counselor, co-led her social cognition group with the SLT provider, and coordinated her clinical services. She has a Doctoral degree in school psychology and is a. certified school psychologist and a licensed psychologist. (Tr. pp. 134-135).

The student’s counselor explained that the role of the psychosocial teacher was to support the social-emotional functioning of the student in the class and act as a liaison between the clinical team and the classroom-based team. (Tr. p. 136). During the 2020/2021 school year, the school provided a hybrid of in -person instruction four days each week, and remote on instruction on Fridays. (Tr. p. 137).

During the 2020-2021 school year, the student struggled with anxiety, which interfered with her ability to focus; and resulted in difficulty with frustration tolerance with academics, and social interactions. (Tr. pp. 138-139).

She was provided with prompts to sustain attention and engage in tasks, and remain on topic; and to ask for help. The student progressed in her ability to ask for help, and in her executive functioning and time management. She developed knowledge on how to initiate social interactions; but had difficulty implementing those interactions. She received counseling on a pull-out basis, once each week for 30 minutes, plus integrated support throughout the day. Her counselor helped prepare her for anxiety provoking events; and de-escalate and calm her down. She provided visual schedules with strategies, positive reinforcement and encouragement and praise. She also collaborated with other teachers and related services providers (SLT and OT). (Tr. pp. 144-145). The student progressed in her ability to engage in daily routines and tasks, communicate respectfully; and in her ability to approach challenges in a constructive way. (Tr. p. 146). She received individual learning support for reading and writing, which included meeting with teachers outside the classroom, three times each week, as well as collaboration with classroom teachers. (Tr pp 147-148). She progressed from a Level R to W, in the Fountas & Pinnell reading program. (Tr. p. 149).

The student received OT, individually, and on a small group and push-in basis. The OT provider addressed sensory processing and regulation, postural strength, typing; and provided a program which integrated visual and vestibular. They also did yoga to help with posture. The student progressed in her posture, ocular motor skills, vestibular processing; coordination and endurance, and typing skills. (Tr. pp. 150-152).

The psychologist assigned to the Upper School (hereinafter the “US Psychologist) testified that she has a Ph.D. in school psychology and is a licensed psychologist. She provides one-to-one therapy and consults with teachers and school staff and parents. Classes in the upper school have up to 6 students with one to three staff members (teachers or clinical staff). Each student’s schedule is individualized, and students are grouped based upon academic abilities and social/emotional needs. (Tr. pp. 156-157). The small classes allow students to practice social skills, with staff support. (Tr pp. 158-159).

During the currently school year, the US psychologist is the student’s counselor. During the 2021/2022 school year, she supervised the student’s counselor. (Tr. p. 160).

During the 2021/2022 school year, student struggled with waiting her turn, or when things did not go as planned. In academics, she struggled with abstract thinking, and would seek help before making an effort. In movement class, she would get upset if she lost a game. She received counseling individually once per week. In addition, there was additional psychosocial staff to provide support in classes. In therapy, she was taught Cognitive Behavioral Therapy (“CBT”) skills. Through games, she practiced identifying her feelings and responding to situations. She also received visuals to help her identify her needs, with respect to her school work. The psychologist would assist her in self-regulating, so that she could begin a task. (Tr. pp. (Tr. pp. 161-613). Her health and mental health class was taught by a mental health counselor, (Tr. p. 164).

A Behavior Intervention Plan (“BIP”) was created in February 2022 in response to the student’s difficulty with self-regulating, which resulted in crying and whining; and not responding to offered help. (Par. Ex. XX1-2). In May 2022, the student was feeling frustration with another student and threatened to throw an object. She wound up pushing a teacher when they both went to grab it. The student was told to stay home while the school developed a plan for her re-entry. The plan was developed by the US psychologist, the student’s private psychiatrist, parents, and other school staff. (Par. Ex. YY; Tr, p. 168). The student returned to school gradually, with a shared script, which provided for the student to leave the classroom and go to a designated spot, and practice coping skills when she was starting to get upset. (Tr. pp. 169-170).

During the current school year, the US psychologist sees the student weekly and as needed, to check-in during the school day. In counseling, the focus has been in using CBT to identify her anxiety. She participates in the private school’s transitions program, for additional support. She is paired with another student with similar needs. She likes her teachers. Her reactions to situations which are upsetting have diminished. The student is able to verbalize her anxieties to her teachers, and use CBT techniques. (Tr. pp. 171-175).

The Summer Program For all of the three school years at issue, the student attended the Summer Program.

The Summer Program is a six-week program for twice exceptional students who have intellectual or creative gifts with lagging social or executive functioning skills. The summer program provides development of social and executive functioning skills, talent development (theatre, strategy games, animation and athletics). The summer program provides related services of SLT, OT and Counseling, through a contract with the private school. (Par. Ex. N). The program combines traditional summer fun activities and talent development with psychosocial learning throughout the day. (Par. Ex. BBB). The program does not include academics. (Tr. p. 254).

During the Summer of 2020, the program was provided virtually. (Par. Ex. O).

The program ran from 9:00 AM to 2:00 PM, with approximately 10 periods per day, which was the same for all of the participants in the student’s group; except that the student received one session each week of OT, Counseling and SLT. (Tr. pp. 227-228). The program included daily psychosocial learning, mindful movement and other group activities. Approximately one-half of the program was devoted to arts/leisure type activities such as theater, games, productions, martial arts, animation, technology and virtual field trips. (Par. Ex. S; Tr. p. 225). Each day began with Enrichment Clusters (Core), which addressed psychosocial goals. (Tr. p. 226; Par. Ex. BBB). The program was open to children who did not attend the private school. (Tr. p. 237). For the Summer of 2020, the cost of the Summer Program was $9,903.00, which the parents paid in full. (Par. Ex. EE).

During the Summer of 2021, the Summer Program ran for six hours each day, divided into eight sessions. The student received related services of OT/Speech (one session) and Counseling once each week. The day began and ended with Enrichment Clusters (Core), during which the students practice executive functioning skills and collaboration. Approximately one-half of the program was devoted to specials, such as theater, animation, technology and martial arts. Field trips occurred on Fridays. (Par. Ex. U; Tr pp. 256-257). For the Summer of 2021, the cost of the Summer Program was $13,295.00, which the parents paid in full. (Par. Ex. GG).

During the Summer of 2022, the Summer Program ran for six hours each day, divided into eight sessions. The student received related services of OT, Speech and Counseling once each week. The day ended with Enrichment Clusters. Approximately half of the program was devoted to specials, such as theater, martial arts., culinary arts and fine arts, and field trips occurred on Fridays. (Par. Ex. W). The cost of the Summer Program for 2022 was $14,017.50, which the parents paid in full. (Par. Ex. II).

For all three summers, the student benefited from the Summer Program. (Par. Ex. SS, TT UU).

• • On July 17, 2020, the parents signed a contract with the private school enrolling the student for the 2020-2021 school year, with an annual tuition rate of $83,750. (Par. Ex. P). Proof of payment of that amount was submitted at the hearing. (Par. Ex. Y, Z).
• • On February 5, 2021, the parents signed a contract with the private school enrolling the student for the 2021-2022 school year, with an annual tuition rate of $87,950. (Par. Ex. Q). The parents made payment in full. (Par. Ex. AA; BB)
• • On June 28, 2022, the parents signed a contract with the private school enrolling the student for the 2022-2023 school year, with an annual tuition rate of $135,293. As of the time of hearing, tuition was paid in full. (Par. Ex. CC, DD).

Findings of Fact, Conclusions of Law and Order The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [1982]. The instruction offered must be specially designed to meet the child’s unique needs through an individualized education program. Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017). The IEP must be reasonably calculated to enable the child to make progress appropriate in light of his circumstances. Id. at 1002.

The school district is not required to provide "every special service necessary to maximize the student's potential”. Application of a student with a Disability, Appeal No, 20-096. citing (Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 756 [2d Cir. 2018], cert. denied sub nom., 139 S. Ct. 322 [2018]). Nor is it required to reimburse services which exceed its FAPE obligations. L.K. v. New York City Department of Education, 69 IDELR 90 (2d Cir. 2017).

A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Forest Grove School District v. T.A., 557 U.S. 230 (2009); School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities does not preclude an award of reimbursement. Florence School District Four et al. v. Carter, 510 U.S. 7(1993).

The DOE presented documentary evidence only, for all of the school years in question; and did not otherwise seek to defend its actions for any of the school years. I find that it failed to meet its burden of proving that it provided the student with a FAPE for any of those school years at issue.

Appropriateness of Parental Placement To qualify for funding under the IDEA, the parents must demonstrate that the parental 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.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007).

I find that that the parent demonstrated that the student’s program at the private school was specially designed to meet the student’s unique needs, for the 2020/2021, 2021/2022 and 2022/2023 school years. The school provided the student with very small classes, individualized instruction, and related services of SLT, Counseling and OT, consistent with the recommendation of the neuropsychologist. The school developed a BIP in May 2022, in response to an instance of physical aggression, and permitted the student to re-enter the school. During the 2022/2023 school year, the school accommodated the student’s intensive emotional/behavioral needs by providing one-to-one support at all times.

The record indicates that the student has continued to make academic and social/emotional progress at the private school during the three school years in question.

Summer Program 8 NYCRR 200.6 (k) provides as follows.

“(1) Eligibility of students for 12-month special services and/or programs. Students shall be considered for 12-month special services and/or programs in accordance with their need to prevent substantial regression, if they are:

(i) students whose management needs are determined to be highly intensive and require a high degree of individualized attention and intervention who are placed in classes in accordance with subparagraph (h)(4)(ii) of this section;

(ii) students with severe multiple disabilities, whose programs consist primarily of habilitation and treatment and are placed in special classes in accordance with subparagraph (h)(4)(iii) of this section; (iii) students who are recommended for home and hospital instruction whose special education needs are determined to be highly intensive and require a high degree of individualized attention and intervention or who have severe multiple disabilities and require primarily habilitation and treatment; (iv) students whose needs are so severe that they can be met only in a seven-day residential program; or

(v) students who are not in programs as described in subparagraphs (i) through (iv) of this paragraph during the period from September through June and who, because of their disabilities, exhibit the need for a 12-month special service and/or program provided in a structured learning environment of up to 12 months duration in order to prevent substantial regression as determined by the committee on special education.” 8 NYCRR 200.6 (k)

The student’s need for twelve-month programming was not acknowledged by the DOE until June 2, 2022, when her classification was changed to Autism, and she was recommended for a self-contained class and a higher level of service. Nor did the parent present evidence from any evaluator or provider that the student required twelve-month programming to prevent regression; or notice of his intention to seek funding for the placement of the student in the Summer Program until June 16, 2022. Nevertheless, the father’s testimony was compelling that as of the Summer of 2020, the student required twelve-month programming to prevent regression in her social interactions; and the DOE has not raised the lack of 10-day notice (in the Summers of 2020 and 2021) as an equitable bar to reimbursement.

I find that the summer program combined classes and programs to prevent regression (psychosocial instruction, group activities, and related services); with enrichment and leisure activities, including weekly field trips, typical of a summer camp. I find that funding for fifty percent of the summer program, is warranted for the three summers at issue, as the DOE is not required to reimburse services which exceed its FAPE obligations. L.K. v. New York City Department of Education, supra.

Equitable Considerations In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 49 IDELR 39 [S.D.N.Y. Nov. 20, 2007]. The Courts must consider all relevant factors, including whether the parent participated in the IEP meeting, visited the proposed placement and provided timely notice of her intent to place the student in a private school. See M.H. and E.K. v. New York City Dept of Education, 685 F 3d 217 (2d Cir. 2012

• • The record indicates that the parent cooperated with the DOE by participating in CSE reviews and attempting to communicate with proposed placements. The parents provided 10-day notice of their intention to unilaterally place the student at the private school and seek funding for the three years in question. As to the summer program, the only 10 day notice was for the Summer of 2022. Nevertheless, the DOE has not raised this as a bar to reimbursement.

ORDER

For all of the foregoing reasons, it is hereby ordered that

• • The DOE shall reimburse the parent $18,607.75 on account of the student’s tuition for the Summer Program for the summers of 2020, 2021 and 2022, by January 11, 2023;
• • The DOE shall reimburse the parent $306,993.00, on account of the student’s tuition at the private school for the 2020/2021, 2021/2022 and 2022/2023 school years, by January 11, 2023.
• • Dated: December 23, 2022 Dora M. Lassinger

DORA M. LASSINGER, 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 Office (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.

DOCUMENTATION ENTERED INTO THE RECORD

Impartial Hearing Officer Exhibits

• • Order Denying Consolidation, 1/4/22, 2 pp.
• • Order of Consolidation, 7-22-22, 2 pp.
• • Extensions, various dates, 8 pp.

Department of Education Exhibits

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Document Description

Date

Page Count

20-21 Individualized Education Program (IEP)

08/25/2020

28

20-21 Prior Written Notice Package

09/24/2020

4

21-22 IEP

06/07/2021

29

21-22 Prior Written Notice Package

09/06/2021

4

22-23 IEP

06/02/2022

35

22-23 Prior Written Notice Package

06/28/2022

5

Social History Evaluation

08/12/2020

3

Report Card Fall 2021

01/03/2022

8

Report Card Spring 2022

04/01/2022

6

Parents’ Exhibits

REDACTED

Footnotes

[1] All claims for reimbursement for evaluations and for transportation were withdrawn at the hearing. (Tr. p. 54).

[2] The 2022 evaluation does not mention summer programming. (Par. Ex. H).