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CASE NUMBER: 561374 - NYC: 217303
AMENDED FINDINGS OF FACT AND DECISION
SED ID No. 561374
Student’s Name: REDACTED, (herein “Student”)
Date of Birth: REDACTED
District: REDACTED
Hearing Requested by: REDACTED, (“Parent/Guardian” and/or “Uncle”)
Date of Hearings: October 26, 2021, November 19, 2021, December 7, 2021, and March 10, 2022
Record Close Date: September 23, 2022
Hearing Officer: Stephanie Seto, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 26, 2021
For the Student:
REDACTED, Esq., Attorney for Parent
For the Department of Education ("District"):
REDACTED, Esq., Attorney for District
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVMEBER 19, 2021
For the Student:
REDACTED, Senior advocate, Law Offices of REDACTED
For the Department of Education ("District"):
REDACTED, Esq., Attorney for District
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 7, 2021
For the Student:
REDACTED, Esq., Attorney for Parent
For the Department of Education ("District"):
REDACTED, Esq., Attorney for District
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 10, 2022
For the Student:
REDACTED, Esq., Attorney for Parent
REDACTED, Parent/Guardian
REDACTED, Teacher and Academic Curriculum Coordinator, REDACTED
Dr. REDACTED, Psy.D., Neuropsychologist
REDACTED, Teacher, REDACTED School
For the Department of Education ("District"):
REDACTED, Esq., Attorney for District
INTRODUCTION
On September 13, 2021, Parent of the Student filed a due process complaint (“DPC”) under the Individuals with Disabilities Education Act (the “IDEA”), the New York State Education Law and attendant Federal and New York State Regulations, Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (“ADA”) against the New York City Department of Education (the “District” or “DOE”) (Parent Ex. A) [1] for reimbursement/direct funding of Student’s unilateral placement at REDACTED School (“REDACTED”) for the 2021-2022 school year and appropriate bus transportation door-to-door for Student from his home to REDACTED and reimbursement for evaluations secured by Parents to assist with educational planning. P Ex. A-2.
I was appointed as the impartial hearing officer (“IHO”) on October 12, 2021. The case was heard on the multiple dates listed above.
A list of the documentary evidence submitted is appended to this Order. The compliance date for issuing a decision in this proceeding was also extended by this IHO pursuant to the parties’ requests.
BACKGROUND, PROCEDURAL HISTORY & POSTIONS OF THE PARTIES
Student was a REDACTED year-old turning REDACTED year-old student during the school year at issue with a District classification of Autism. P Ex. P-A; D Ex. 1. Besides a diagnosis of Autism Spectrum Disorder (ASD), Student is diagnosed with Attention Deficit/Hyperactivity Disorder (ADHD),and Specific Learning Disorders with Impairments in Reading, Writing and Math. P Ex. G-6 and M-6. Student is consistently described as a sensitive and sweet REDACTED man that is emotionally fragile. D Ex. behaved Student. D Ex. 4; P Ex. G, M,N, O, P. Student lives with his Guardians (REDACTED), REDACTED is his Uncle, and Student’s REDACTED. P Ex. G-1.
Student has been known to the District as a student with a disability for many years and was previously placed in his early elementary years in inappropriate public-school placements where he experienced emotional and physical trauma. D Ex. 4; P Ex. G and P-1-2. Student was placed in the REDACTED School (“REDACTED”), New York State Approved Non-Public School Placement (“NYSED Approved School” or “NPS”) in 3rd grade by the District. D Ex. 4; P Ex. G, O and P. Student attended REDACTED through 8th grade (the 2020-2021 school year) and by all accounts responded to the school and progressed there. D Ex. 1, 4; P Ex. G, O and P. Student could not continue at REDACTED for the 2021-2022 school year as REDACTED ends with 8th grade. D Ex. 1, 4; P Ex. G, O and P.
It is undisputed that Student requires a specialized program – the District found Student should continue to attend an NPS and Parent agrees Student should be in a non-public specialized school. P Ex. D Ex. 1 and 12; P Ex. A and P.
Parent’s Position
Parent ‘s DPC alleged that the District denied Student a FAPE for the following reasons: i) failed to identify an appropriate placement at an NPS; (ii) the IEP failed to deliver a FAPE for several substantive and procedural reasons: failure to recommend sufficient 1:1 instruction, failure to recommend small group instruction, failure to address Student’s need for remediation, failure to recommend sufficient Assistive Technology, failure to have appropriate goals, failure to constitute a proper IEP team and the IEP at issue was not based upon legally sufficient evaluations. P Ex. A-2.
Following notice of unilateral placement, Parent’s unilaterally placed Student for the 2021-2022 school year at REDACTED and now seek a finding: (i) REDACTED is an appropriate educational placement for Student for the 2021-2022 school year; (iii) a mixed remedy of reimbursement and direct funding of REDACTED’s tuition for Student’s placement for the during the 2021-2022 school year, (iii) REDACTED was an appropriate placement; iv) the equities favor the Parent as to the requested remedy of tuition funding/reimbursement; and (v) door to door special transportation/suitable transportation to REDACTED. Tr. 48-50; P Ex. A; IHO Ex. II, Parent’s Closing Brief.[2]
District’s Position
District disputes Parent/Guardian’s case and asserts it offered a FAPE. Tr. 31-33; IHO Ex. I. District asserted that Student was offered a FAPE for the 2021-2022 school year and the District’s evidence and testimony showed the CSE created a procedural and substantively appropriate IEP and an appropriate placement. Tr. 31; IHO Ex. I. The District’s position is that it located appropriate NPS schools for Student and made every effort to secure an appropriate NPS placement to implement the IEP for Student for the 2021-2022 school year but Parent’s failure to make efforts to participate in the interview process and rejection of the potential NPS placements hindered the process. Tr. 32-33; IHO Ex. I. District also asserts Parent did not prove that REDACTED was an appropriate placement, and the Equitable Considerations Support the District as the Student’s family did not sufficiently engage in the process by failing to interview with NPS school that were willing to interview Student and Family. Tr. 33-34; D Ex. IHO I.
Parent and District submitted several exhibits and neither objected to either party’s exhibits.
The District put on a case with witness testimony via affidavit of REDACTED, School Psychologist for the District who was on the CSE team that created the January 2021 IEP and REDACTED, Central Based Support Team (CBST) Education Administrator via affidavit. Parent’s Counsel declined to cross-examine the District’s witnesses stating that Parents disputed the District’s Witnesses but would address the disputed issues in Parent’s direct presentation of their case. Tr. 34.
Parent presented a case via witness testimony of Dr. REDACTED (“REDACTED”), Neurologist that evaluated Student right in the Fall of 2020, Student’s Uncle and Guardian that brought the DPC, REDACTED (“REDACTED”) of REDACTED, and REDACTED (“REDACTED”), Student’s ELA Teacher during the 2021-2022 school year at REDACTED. District cross-examined all four of Parent’s Witnesses. Tr. 53-93.
Both District and Parent submitted a closing briefs. See IHO Ex. I, District Brief and IHO Ex. II, Parent Closing Brief.
ISSUES PRESENTED
The following issues were adjudicated:
- • Whether District denied Student a FAPE for the 2021-2022 school year by failing to provide Student with or implement for Student an appropriate individualized educational program (“IEP”) or provide an appropriate placement for Student?
- • Whether Parent has provided evidence REDACTED was an appropriate placement for Student for the 2020-2021 school year?
- • Whether a balancing of the equities favored Parent with regard to Parent’s request for reimbursement of the unilateral placement?
FINDINGS OF FACT
The following are my findings of fact on all testimony and documentary evidence presented in this matter. The facts set forth in the section above relating to “Background and Procedural History” shall be included herein as part of my Findings of Fact.
As stated above, Student at the time of the school year in question was a thirteen-year-old turning fourteen-year-old student during the school year at issue with a District classification of Autism. P Ex. P-A; D Ex. 1. Besides a diagnosis of Autism Spectrum Disorder (ASD), Student is diagnosed with Attention Deficit/Hyperactivity Disorder (ADHD),and Specific Learning Disorders with Impairments in Reading, Writing and Math. P Ex. G-6 and M-6. This diagnosis was in the Neuropsychological Report considered by the IEP Team that created the January 21, 2021 IEP, the only relevant IEP presented in this matter. D Ex. 1 and 2; P Ex. G.
It is noted that District would have known of access to Student’s history of trauma related to incidents that occurred in District public schools prior to Student’s placement by the District at REDACTED, a NPS. D Ex. 4; P Ex. G, M,N, O, P. Student is consistently described as a sensitive and sweet REDACTED man and emotionally fragile. D Ex. 4; P Ex. G, M,N, O, P. Student has REDACTED and all REDACTED live with REDACTED, who is their Uncle, and his wife, REDACTED; the REDACTED are the Guardians of Student and REDACTED. P Ex. G-1.
Student attended REDACTED, a school with a dual curriculum of integrated social skills and academic curriculum, from 3rd through 8th grade (the 2020-2021 school year) and by all accounts responded to the school and progressed there. D Ex. 1, 4; P Ex. G, O and P. The profile of students at REDACTED is all students are diagnosed with ASD, most are emotionally fragile, verbal, able to learn in a group setting, cognitively range from low and high average and struggle with development of social skills. P Ex. O-2. REDACTED, REDACTED’s Academic Curriculum Coordinator, who became familiar with Student while he was middle school at REDACTED and participated in a meeting with the CSE to help transition Student into a new school for 9th grade, described Student as hardworking academically, placing pressure on himself. P Ex. O. Student was in the lower functioning academically groups of 8th grade at REDACTED due to his severe delays and learning cREDACTEDges and at the end of the 2020-2021 school year was receiving math instruction at an early 5th grade level and literacy instruction at a 3rd grade level. P Ex. O. While at REDACTED, Student’s IEP designated him as an “alternatively assessed” Student as opposed to subject to typical New York State Testing or placed on a diploma bound track. P Ex. O.
Student could not continue at REDACTED for the 2021-2022 school year as REDACTED ends with 8th grade and the age of fourteen. D Ex. 1, 4; P Ex. G, O and P. Transition planning started a year prior to expected graduation date. P Ex. O and P.
An IEP meeting was held on January 21, 2021. D Ex. 1 and 12; IHO Ex. II, p.3. The IEP indicates the attendance of Student’s Uncle and Guardian REDACTED, REDACTED, REDACTED as “Teacher, REDACTED” and REDACTED, “Academic Director, REDACTED.” D Ex. 1. REDACTED acted as District School Psychologist and District Representative. D Ex. 1 and 12. REDACTED testified that the IEP team included “a District Related Service/Provider/Special Education” but the IEP does not reflect this. D Ex. 1-37 and 12. REDACTED testified reviewed student’s previous IEPs, evaluations and reports. D Ex. 12-1. The Prior Written Notice issued by the District five months later in June of 2021 indicates the following evaluations and reports were used to create the recommended program: Social History Assessment of 12/15/2020 (D Ex. 4); Vocational Assessment of 1/20/2021 (D Ex. 3); Neuropsychological 10/19/2020 (P Ex. G); Ed. Update/Progress Report, 11/30/2020 (not in the record), draft IEP (not in the record).
It is not disputed that the CSE recommended Student be placed in an NPS, 12:1+2 Special Class (commencing 2/4/2021) and also a “Interim District 75 placement 12:1+1 commencing July 1, 2021. D Ex. 1, 2, 12; P Ex. O and P. The IEP also recommended Adapted Physical Education four times a week and several pull-out related services: Counseling (i) 1:1, 30 minutes, once a week and (ii) 4:1 30 minutes once a week; Occupational Therapy (OT) (i) 1:1, 30 minutes, once a week, (ii) 2:1, 30 minutes, once a week and (iii) 4:1, 30 minutes, once a week; Speech and Language Therapy (S/L T), (i) 1:1, 30 minutes, once a week, (ii) 2:1, 30 minutes, once a week and (iii) 6:1, 30 minutes, once a week; and Parent Training (PCAT), 1 time per____, 60 minutes. D Ex. 27-28.
The IEP included some of the results of Student’s October 2020 Neuropsychological Evaluation in an incomplete manner without explanation as set forth in the Neuropsychological Evaluation Report. Compare D Ex. 1-1 and P Ex. G. It also included Student’s Teacher’s Estimates from December 2020 of Student’s Reading Writing and Math levels which are in generally in accord with some variation, although Student’s scores are variable across the board, Student was reading and writing between a 2nd -3rd grade level and Math abilities were variable from approximately mid-2nd grade to later 4th grade. D Ex. 1 and P Ex. G. (It is note it states, “Math Instructional Level Mid-Grade 5” and also STAR Assessment Math mid-3rd grade. D Ex. 1.) The Instructional Functional levels of Student are reported as 2nd grade Reading and 3rd grade Math. D Ex. 1-33. Student’s Full-scale IQ was very low, 79, but Dr. REDACTED’ s Report stated he did not believe it was a true representation of Student’s ability or potential due to the variability in his scores. D Ex. 1;P Ex. G. F. Student is described by Dr. REDACTED and REDACTED as being very slow to perform academic tasks and needing extended processing time. D Ex. 1; P ex. G, M,N, O.
The IEP states student should be in a 12-month program. D Ex. 1-27. The IEP does not state Student should be alternatively assessed and checks “Standard” Promotion Criteria rather than modified although it recommends testing accommodations. D Ex. 1 30-35. The IEP recommends a Special Class Interim District REDACTED placement in a 12:1:1 school starting on July 1, 2021although the placement recommendation is a NPS. D Ex. 1-27. There is no further explanation in the IEP regarding any other dates for change of placement or what the Interim placement means. REDACTED testified the team recommended a 12:1+1 interim placement in a District 75 school on a 12-month basis to ensure Student was receiving services while a NPS was secured. D Ex. 12-2. REDACTED testified that District REDACTED was discussed as an interim placement if a new NPS was not found by July 1, 2020 and “to her recollection nobody in the meeting felt a District REDACTED was appropriate.” P Ex. O-3. Parent also gave similar testimony to REDACTED. P Ex. P-3..
The June 13, 2021 PWN contains conflicting statements as to Student’s program. D Ex. 2-1-2. It states Student’s program should be for a 10-month school year at a NPS without the class ratio identified and adapted physical education, Special Class NPS ratio and Special Class 12:1+1 with related services of Counseling (group and 1:1), OT (group and 1:1) and S/L T (group and 1:1). D Ex. 2-1-2. The PWN also states the same program but for an Extended School Year (ESY). D Ex. 2-1-2. With the PWN was a School Location Letter dated 6/13/2021 placing student in a District REDACTED based upon the January 21, 2021 IEP. D Ex. 2-5.
REDACTED (“REDACTED”) testified that she was assigned as Student’s case manager to “assist in locating a NPS school for the 2021-2022 school year” on January 26, 2021 and the email evidence submitted by both parties she sent Student’s family and email introducing herself on March 19, 2021. D Ex. 5 and 11-2; P Ex. K-5. At the time REDACTED was made Student’s case manager she had been a CBST Education Administrator since November 2019 and describes her position as one where she identifies NPS that “may meet” a student’s needs based upon a student’s classification and present levels of performance as well as specific school admission criteria. D Ex. 11-1.
REDACTED testified that She referred the Student to nine schools on March 19, 2021 (meaning she sent out Student’s “referral packet” to the schools. D Ex. 5 and 11-2. P Ex. K. Guardians emailed REDACTED on March 19, 2021 requesting a list of the schools being considered so they could start research. D Ex. 5 and P Ex. K. An email chain that both District and Guardian provided, Guardian’s being more complete, does not evidence when Guardians received this list or if they ever received a “list” as REDACTED did not testify she sent such a list and Parent testified that the process was “incredibly confusing”, and Guardian/Uncle’s wife created a spreadsheet to track the schools to track what options were available and appropriate. D Ex. 11; P Ex. P-4.
REDACTED testified that out of the nine schools, five of the schools could not meet Student’s needs and one never responded. P Ex. 11-2.
REDACTED testified that she “never received confirmation that parent attended interviews at any of the offered schools.” D Ex. 11-2. The District submitted an email chain with Parent that ended on May 10, 2021 at 2:44 wherein REDACTED writes “I have made a note in [Student’s] electronic file indicating your rejections for these invitations for interviews.” D Ex. 5. The Guardian submitted the same email chain but with two later and additional emails evidencing Guardians’ immediate response to REDACTED’s email regarding the notation regarding the failure to interview requesting that the file note be amended as it was not true: “We did not reject these interviews. We interviewed and met with them. Can you please amend this as that is not correct.” P Ex. K-1. Further, REDACTED responded a few minutes later “I uploaded your email response to the file.” P Ex. K-6.
It is noted that the only interviews referenced in the email chain is an interview with the REDACTED School and an interview with the REDACTED School (short for REDACTED in Brooklyn) with no further evidence in the record with regard to specific schools requesting interviews. See D Ex.5 and P Ex. K2-4. The District admitted the REDACTED School was one of the schools that could not meet Student’s needs and also submitted a response form from the REDACTED School stating the school is not appropriate for Student as unable to meet Student’s needs. D Ex. 6 and 11-2.
No response form from the REDACTED School was offered by the District. Guardian testified he or his wife spoke with the REDACTED School on March 23. 2021. P Ex. P-4. The email exchange (submitted by both parties) evidence Guardian reports to REDACTED 4/28/2021 the Guardians had recently received an email from the REDACTED School.
The District submitted an email exchange between REDACTED and a person named REDACTED (“REDACTED”), Licensed Clinical Social Worker of the REDACTED School & REDACTED in Brooklyn. D Ex. 10. In the exchange REDACTED reaches out to REDACTED on April 13, 2021 as the CBST had not received a response from the REDACTED School. D Ex. 10-2. REDACTED indicates she had been out of the office due to a family death and had outreached to parent via email on March 23, 2021 and called on April 4, 2021 and left a message. D Ex. 10-2. REDACTED further updates REDACTED on May 3, 2021 that on 4/28/2021 she “outreached” to parent and parent has not responded. D Ex. 10-4. There is no statement of offer of interview to Parents in exchange between REDACTED and REDACTED although REDACTED inquires if Parent has “scheduled” an interview or tour with the REDACTED School. D Ex. 10 and 5-2: P Ex. K. Guardian testified he had an interview with REDACTED. Tr. 63.
REDACTED testified the last possible school left out of the nine, the REDACTED School “offered the parent placement however parent did not respond to the school’s offer.” P Ex. 11-2. The District submitted as evidence a response form sent to REDACTED from the REDACTED school date April 22, 2021 stating REDACTED reviewed the evaluation reports and documentation and agreed to accept Student but Parent refused placement in the program and in another section of the Response form stating “Reject the Student’s referral because school is not appropriate” comments are added to the Rejection section explaining “Placement was offered. Parent has not responded to outreach about the decision.” D Ex. 6. The District submitted an email REDACTED received from the coordinator of admissions director at REDACTED dated April 15, 2021 stating, “We offered a placement to this student” and “Parent stated she has more screening before she decides which school to accept.” D Ex. 9-1. In an email dated April 28, 2021,
Guardians found REDACTED to be a great school but not able to accommodate Student’s IEP as there was no adaptive PE, School wanted to do push-in as opposed to individual counseling and group services were capped, for instance OT is not in a group. Tr. 64;D Ex. 5-1. He testified he had an interview with REDACTED but did not recall when. Tr. 61-63
REDACTED testified that the NPS, REDACTED (“REDACTED”)[3] agreed to interview but parent did not seem interested. Ex. 11-2. (This school is not discussed in the email exchange between parent and District. D Ex. 5 and P Ex.K). In an email exchange between REDACTED of REDACTED and REDACTED tells REDACTED that “The family does not appear to be interested in interviewing. They sent a list of questions to be answered in writing before proceeding. We don’t handle interviews in that manner. Unfortunately, we will not be able to proceed with them.” D ex. 7. It cannot be discerned from this exchange if REDACTED was unable to proceed because REDACTED did not want to proceed with the Family, or the Family rejected REDACTED. Parent testified he or his wife communicated with REDACTED on 4/13/2021 and emails were exchanged. Tr. 63;P Ex. P-4.
Both Dr. REDACTED and REDACTED testified REDACTED would not be appropriate for Student due to his academic levels and struggles. REDACTED testified she was familiar with REDACTED as some REDACTED graduates “move on” to REDACTED and REDACTED has more “academic rigor “then REDACTED. Tr. 57-58;P Ex. O-3. Based on the Student’s she was familiar with that went to REDACTED, the school did match his “profile” in the sense the student’s that went there were more academically advanced and had fewer social emotional struggles and less fragility. And she did not believe it would be an appropriate placement. Tr. 57-58;P Ex. O-3.
In general Dr. REDACTED testified based upon his knowledge of NPS based on many years of experience in the field of evaluations and placements of New York City Students. See P Ex. L and M. Dr. REDACTED testified that he is very familiar with REDACTED and REDACTED was an appropriate placement for Student until he aged out as he is “more emotionally fragile and requires a slower paced learning environment that can address his myriad of needs.” P Ex. M-6.
Dr.REDACTED testified that he spoke with the family about some of the NPS referrals and many were not appropriate for Student. P Ex. M-7. Dr. REDACTED testified he works with REDACTED a lot, was familiar with their current curriculum and REDACTED was not an appropriate placement for Student. Tr. 71. The focus at REDACTED is more specific to language and not as broad a program as Student requires with his varied cognitive, attentional, learning, adaptive and support needs. Tr. 71;P Ex. M-7. REDACTED’ s program is more rigorous program with a range of peers who work more independently and have a different set of needs the student and his “academic skills at 2nd-3rd grade level” were not within the REDACTED profile.” Tr. 71; P Ex. M-7.
REDACTED testified The REDACTED School had a strong psychiatric department would “absolutely not” be appropriate for Student due to the focus on children with emotional disturbance. Tr. 72-73. Student is a “very sweet, well-mannered child who would be completely lost and inappropriately placed in a school that’s primary focus is more with children with emotional and/or behavioral REDACTED.” Tr. 73. Dr. REDACTED also testified his opinion REDACTED was not appropriate and “would absolutely be regressive” for Student. Tr. 74. He said it was similar to REDACTED in terms of small, therapeutic focus on children with more psychiatric, behavioral, emotional REDACTED. Tr. 74.
Guardian testified he cooperated and followed up on all opportunities for an NPS placement. P Ex. P-4; see also D Ex. 5 and P ex. K. He testified the process to determine a fit between Student and an NPS able to implement the IEP was “incredibly confusing,” REDACTED did not provide guidance as to which school would be the most appropriate or participate in any interviews with schools to help guide and the Family was left to their own resources to narrow the possible options and determine appropriateness.” The District did not provide any evidence regarding how any of the nine NPS schools REDACTED sent Student’s package could meet student’s needs, and in fact submitted no information as to the schools’ programs or student profiles.
Unilateral Placement at REDACTED 2021-2022[4]
Guardian provided a ten-day notice of unilateral placement on August 25, 2021 outlining District’s failure to provide appropriate placement and program for Student. Ex. P-B. As a remedy, the parent requested funding/reimbursement for Student’s unilateral placement at REDACTED. P Ex. B. There is no evidence the District responded to this notice.
Student signed the enrollment contract with REDACTED on March 10, 2021. P Ex. C. Guardian properly and timely put the DOE on notice of Student’s unilateral placement and Parent’s intent to seek direct payment more than ten days prior to placement at the start of school on September 13, 2021. P Ex. F. Tuition at REDACTED for the 10-month 2021-2022 school year was $78,775.00 P Ex. C. The Enrollment Contract allows Guardian to withdraw on or before October 31, 2021 if Guardian accepts a school placement recommended by the District in a public school or NPS. P Ex. C-2. The Guardian testified the Family cannot bear the financial hardship of paying the tuition up front and waiting for reimbursement due to living expenses and the multitude of expense for student and his siblings. P Ex. P 5-6.
Parent provided evidence regarding REDACTED’s High School program via the testimony of REDACTED, Dr. REDACTED and Exhibits from REDACTED, P Ex. D and H.
REDACTED Upper School serves adolescents and REDACTED adults in grades 9 through 12. P Ex. D-1. Students can start at REDACTED and the time for student’s completion will depend upon the Student and ranges from four to seven years; student’s needing additional time (post 4 years) may attend the Transitions program until age 21. P Ex. D-1. Students are grouped in classes of ten to twelve with similar academic functioning, age, adaptive skills, need for adult support and a variety of social skills. Tr. 77-91; P Ex. D and N-3. Students have cognitive or developmental disabilities that s impact their acquisition of academic, adaptive function, language and social/emotional domains. P Ex. D and N. The curriculum takes into consideration New York State learning standards and the “common Core” with varying levels of modification for individualized learning. Tr. 77-91P Ex. D-2 and N.
The focus of the curriculum is on independency – skills for independent living and employment success; academic skills – maximize ability; critical thinking and problem solving; social skills; emotional health, use of arts and media, preparation for meaningful employment and active participation in the community. P Ex. D-2. The Upper School mirrors a typical high school program offering eight periods a day with students switching classrooms and teachers by subject. P Ex. N-3
Each class has a head teacher and an assistant teacher and has push in clinicians so the adult to student ratio is in effect is higher than 12:2 and more similar to a 12:1:3 ratio lowering the staffing ratio to 3 to 1. Tr. 74; P Ex. D-5 and N. Head Teachers and those providing related services all have appropriate certifications. P Ex. D and N.
Opportunities for meaningful inclusive activities within the local community are provided to expose students to a variety of natural settings within the school’s neighboring community. P Ex. D and N. Students in the high school partake in internships for an employment readiness program all years; the first are within REDACTED and then after in the community. Tr. 74-90; P Ex. D and N. REDACTED’s academic program is focused on addressing the student’s current functioning levels and a variety of different programs to address individual needs. P Ex. D and N. The curriculum includes ELA, social studies, math, science, creative arts, and life/adaptive skills. P Ex. D-2 and N. There are assessment points throughout the year and two standardized assessments -reading and math – to get baseline function levels. P Ex. N-4. There are also quizzes in the classroom so teachers may monitor progress. Tr. 74-90.
There are a large group of related service providers that are both in and out of the classroom. P Ex. D-4. Counseling services are provided by school psychologists and social workers and students work in small group and individual sessions. P Ex. D- 4. Occupational therapy is often provided in a sensory gym and in simulated apartment setting (adaptive skills). P Ex. D-4. Speech and language therapy is provided individually, as well as within small groups, and by pushing into the classrooms to provide language support while working on lessons. P Ex. D-6.
Student’s teacher, REDACTED offered detailed testimony describing Student’s program at REDACTED and how the school addresses his educational, language, and social needs during the 2021-2022 school year. Tr. 74-90;P Ex. N. Further, a Progress report provided for the first half of the year provided in depth information regarding each class and related service student was involved in including his internship, at which he had performed with high ratings. P Ex. H. The Progress Report indicated student had adjusted well to REDACTED and was making progress and taking to the program. P Ex. H. Student’s Parent testified as to specific examples regarding Student’s progress since starting REDACTED. P ex. P-5. Dr. REDACTED also testified as to how REDACTED was an appropriate program like REDACTED was. P Ex. M. Student was provided with Counseling, Speech Language Therapy (“S/L T”) and Occupational Therapy (“OT”) multiple times per week in different settings. P Ex. H.:
CONCLUSIONS OF LAW AND DISCUSSION
General Review Of FAPE and Burlington-Carter Analysis 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. “A school district fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression.” Cerra, 427 F. 3d at 195.
“A focus on the particular child is at the core of the IDEA.” Endrew F., 137 S.Ct. at 999. 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). “[C]rafting an appropriate program of education requires a prospective judgment by school officials.” Endrew F., 137 S.Ct. at 992. “The Act contemplates that this fact-intensive exercise will be informed not only by the expertise of school officials, but also by the input of the child’s parents or guardians.” Id. at 999. “
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.
FAPE is offered when a school district provides “personalized instruction with sufficient services to permit the child to benefit educationally from that instruction.” Rowley, 485 U.S. at 203. The IDEA does not articulate a specific level of educational benefits and the adequacy of an IEP “turns o the unique circumstances of the child for whom it was created.” Endrew F., 137 S. Ct. at 1001; Walczak, 142 F.3d at 130; Rowley, 458 U.S. at 189. The IDEA ensures “an appropriate” education, “not one that provides everything that might be though 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). Additionally, school districts are not required to “maximize” the potential of students with disabilities. Rowley, 458 U.S. at 189, 199. Yet, an IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bs. Of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997; see also, Endrew F., 137 S. Ct. at 1001 (an IEP or program must be “reasonably calculated to make progress in light of the child’s circumstances.”) The “IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” Id. The Student’s recommended program must also be provided in the least restrictive environment. Gagliardo., 489 F.3d at 108.
An appropriate educational program begins with an IEP that accurately reflects the (1) student’s present level of academic achievement and functional performance and learning characteristics, (2) social development, (3) physical development and managerial and behavioral needs. Walczak, 142 F.3d at 123; 8 NYCRR 200.1(kk)(2)(i) (1997)(renumbered as 8 NYCRR § 200.1(ww)(3)(i). The most recent evaluations to identify the student's needs, establishes annual goals to meet to those needs, and enable progress in the general education curriculum or provides for the use of appropriate special education services. 34 C.F.R. 300.320(a)(1); 8 NYCRR 200.4(d)(2).
In A.M. v. New York 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. An IEP’s failure to provide a particular classroom or methodology results in the denial of FAPE if “the testimony and reports indica[ed] that [the child’s] needs required” the particular placement or methodology. A.M., 845 F.3d at 545. “This remains true whether the issue relates to content, methodology or delivery of instruction in a child’s IEP.” Id. “Where there are no evaluative materials present at the CSE meeting that suggest otherwise and the District did not conduct any evaluations of their own to call into question the opinions and recommendations in the evaluative materials… the CSE is bound at minimum to require some level of the recommended” placement or methodology or therapy to establish the adequacy of the IEP. Id. An IEP’s” substantive inadequacy will be rooted in a failure to follow the consensus of evaluative materials” and “all witnesses familiar with the child” if the District does not point to any evidence “sufficient to counter these opinions.” Id. In A.M., parents successfully claimed the district’s proposed IEP was substantively inadequate because it was silent on whether student would receive ABA. Id.
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. Reevaluations must be conducted at least every three years unless both the parents and the district agree that a reevaluation is unnecessary. 34 CFR §300.303(b)(2). Moreover, it is fundamental that the CSE’s placement recommendation be based upon the IEP (34 CFR §300.116(b)(2)) and that the IEP be based upon current evaluations (34 CFR §300.303(b)(2)).
Referral and Assignment to a NYSED Nonpublic School A District’s assignment of a student to a particular public school is an administrative decision that must be made in conformance with CSE educational placement recommendation, and the District is not permitted to deny the placement set forth in the IEP. M. O. v. New York Dep’t. of Educ., 763 F.3d 236, 244-245 (2d Cir. 2015); R.E., F.3d at 191-92. The IDEA contemplates a District may not be able address needs of a particular student in public placement and may need to place privately at public expense. Burlington v. Dep’t of Educ., 471 U.S. 359, 369-70 (1985). NYSED and the District’s publications state CSE may only recommend and consider a NYSED Nonpublic school (NPS) when it is determined that a student cannot be appropriately educated in the home district; i.e., all public-school settings cannot meet the Student’s needs; the IEP team has to consider and rule out all other settings. See NYSED.gov/specialed/privateschools; Also, schools.nyc.gov/learning/specialeducation/schoolsetting/other-educational settings
If an IEP team or CSE recommends a NPS placement, the student’s case will be sent to the CBST for assistance in locating a placement. The CBST is the District office that is tasked with matching a student with an NPS capable of implementing the program appropriate for the Student. The CBST manager will apply to a NPS or a number of NPS s on the Family’s behalf. Parents/Guardians participate in the NPS intake process. 34 C.F.R. 300.116(a); 300.322;300.501(c).
. It is the individualized needs of the student that will ultimately “determine when such services shall be rendered” by an NPS. N.Y.S. Ed. Law 4402(2)(a). A placement at an NPS shall not be approved unless the proposed placement offers instruction and services recommended on the student’s IEP. 8 N.Y.C.R.R. 200.6(j)(2).
Before a student is placed in a NPS the CSE must hold a meeting with a representative of from the proposed the NPS in attendance. 34 C.F.R. 300.325(a); 8 N.Y.C.R.R. 200.4(d)(4)(i)(a); Werner v. Clarkstown Central School Distr., 363 F. Supp.2d 656, 657-58 (S.D.N.Y. 2005). The SRO has found in cases in which a Student is referred to the CBST for a placement, pursuant to the regulations, the District must conduct a reconvene to amend the recommendation for placement at the NPS that accepted student for implementation with a representative of the NPS in attendance. See Application of Student with a Disability, Appeal No. 13-016; Application of Student with A Disability, Appeal No.21-166.
Burlington-Carter Analysis In an impartial hearing, the burden of proof is on the school district. 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.
The courts have determined the remedy of reimbursement or direct of tuition and related expenses may be granted by an IHO for a denial of FAPE by a school district, if determined appropriate under the Individuals with Disabilities Education Act (IDEA). Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993). Pursuant to these decisions, the three prong “Burlington -Carter” Test is 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 York 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 York 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.
Burlington-Carter Analysis to Facts of This DPC
PRONG 1
In New York State, the burden of proof for Prong 1 rests upon the school district. N.Y.S Ed.. Law § 4404(c)(1).
The District asserted that it offered a FAPE for the 2021-2022 School year. The crux of this case as both parties approached it at hearing was whether the District provided an appropriate placement for Student and therefore offered a FAPE. It is clear that the District did not meet its burden as I discuss herein. But it must also be discussed that the District failed to meet its burden that the January 2021 IEP provided Student a FAPE, for which District also did not meet its burden.
The January IEP is Substantively Flawed and Does Not Offer Student A FAPE The District’s January IEP failed to substantively to deliver Student a FAPE as the IEP Team clearly recommend and determined Student’s needs could only be met by continuing in a NPS placement. The NYS regulations and NYSED and District publications direct that a NPS may only be considered if there are no public options that are appropriate to meet the student’s particular needs. The District’s own evidence including the testimony of REDACTED, the head of the IEP team, and the IEP on its face find Student should be placed in a NPS. Yet, the IEP recommends a District REDACTED school in the interim. A District REDACTED placement is not equivalent to an NPS and by the very directives of the State and the City a public placement can not be considered appropriate if a Student is recommended for placement in a NPS. Therefore, the District’s referral to both a NPS and a District REDACTED 12:1:1 program (also not equivalent to the 12:1:2 program recommended for the NPS in the IEP) on its face is a denial of FAPE and equivalent to an admission that says if we can not place you in your proper placement you have to take something that is not appropriate, but we deem the best we can in the interim. That simply is not allowed under the IDEA and NYS Education Laws.
Another substantive problem with the IEP is the change of student from alternate assessments to standardized assessments on regular diploma track without explanation for the change. Alternate assessments are reserved for students with severe disabilities as defined in 8 NYCRR section 100.1(t)(2)(iv).
“Students with severe disabilities” refers to students who have limited cognitive abilities combined with behavioral and/or physical limitations and who require highly specialized education and/or social, psychological, and medical services in order to maximize their full potential for useful and meaningful participation in society and for self-fulfillment. Students with severe disabilities may experience severe speech, language, and/or perceptual-cognitive impairments and behaviors that interfere with learning and socialization opportunities. These students may also have extremely fragile physiological conditions and may require personal care, physical/verbal supports, and assistive technology devices.
The CSE is responsible for determining whether a student is eligible to participate in Alternate Assessments. At each annual review meeting, the CSE must determine on an individual basis whether the student will participate in 1) the State’s general assessment with or without accommodations;2) the State’s alternate assessment with or without accommodations; or 3) a combination of the State’s general assessment for some content areas and the State’s alternate assessment for other content areas.
The CSE must ensure that decisions regarding participation in the State testing program are not based exclusively on category of disability, language differences, excessive or extended absences, cultural or environmental factors, previous low academic achievement, or previous need for accommodations to participate in State or district-wide assessments. Only students with severe cognitive disabilities are eligible for the NYSAA.
The CSE must determine annually whether a student with a severe cognitive disability is eligible to take the NYSAA based on the following criteria: i) the student has a severe cognitive disability and significant deficits in communication/language and significant deficits in adaptive behavior; AND 2) the student requires a highly specialized educational program that facilitates the acquisition, application, and transfer of skills across natural environments (home, school, community, and/or workplace); AND 3) the student requires educational support systems, such as assistive technology, personal care services, health/medical services, or behavioral intervention.
Student has multiple unique disabilities that make his case difficult to treat and also leave him with serious cognition issues in that upon entering 9th grade, even after receiving appropriate education for a number of years, student is academically functioning at the level of a 2nd/3rd grader. The IEP nor any other evidence indicates CSE assessed a reason to change Student’s Alternate Assessment eligibility. There is nothing I the evidence in the record to support this and the evidence supports Student is a student with severe disabilities.
Therefore the District failed to carry their burden the IEP and/or program offered was appropriate.
Student Was Not Offered An Appropriate Placement To Meet His Needs The District also failed to carry their burden that an appropriate NPS placement was recommended and offered to student by the District. While the District has made a lot of hay regarding whether Parent fully cooperated in the NPS process, the District did not provide any proof or evidence that Parents blocked or prevented the District from finding an appropriate NPS. The burden is the District’s to find an appropriate NPS, not the Parents. District’s counsel’s cross-examination at hearing evidenced a failure to understand that burden by asking all of Parent’s witnesses what they knew about the various schools that REDACTED had submitted Student’s packet or whether or not Parent went for interviews. There is no proof in the record Parent was offered an interview at any particular school and did not go. The District cannot blame Parents for its failure to find an appropriate placement. Further, it would appear from the joint email submissions and both REDACTED’s and Parent’s testimony REDACTED did little to nothing to identify which school was appropriate for Student’s specific needs beyond his classification of Autism. The District failed to put in one iota of information about the three schools that REDACTED identified as options simply because she did not receive a negative response back immediately from it, as she did with the other five NPS or the one that never responded. The District offered no information to explain how or why REDACTED, the REDACTED or REDACTED would be able to implement Student’s program and meet his needs. While the District provided no information regarding these three schools it seems to tout as options (although they were never offered placements), Parent offered credible testimony from REDACTED, Dr. REDACTED and Parent as to why they did not meet Student’s needs and could not provide an appropriate program.
It as incumbent upon the CBST to find a school and the CSE or CBST conduct a reconvene with the school and the Parent. If REDACTED had really “accepted” Student why did REDACTED not facilitate the required meeting with a member of REDACTED and Parents to amend the recommendation for placement with a member of REDACTED and Guardian present. No such reconvene was scheduled as no actual acceptance of Student occurred and there was no placement made. A failure to offer a placement is a denial of FAPE. REDACTED seemed to give up in the late spring after sending the packets to the nine schools in March. Parent had not even given notice of unilateral placement, although that would not have absolved District of an obligation to offer FAPE.
The District entered into evidence an actual inappropriate placement of a District 75 placement it placed Student in June of 2021. Such an inappropriate placement is a denial of FAP
I find that based upon the testimony and the evidence, the District failed to provide a FAPE for the 2021-2022school year as per the allegation in the Parent’s DPC. The record clearly established that the District failed to meet its burden of proof
PRONG 2
As to Prong 2, the burden of proof is upon Parent to establish REDACTED’s appropriateness for the 2021-2022 school year. The testimony and the documentary evidence in the form of information from REDACTED, Student’s 2021-2022 midyear report card support and REDACTED, Dr. REDACTED’ s and Guardian’s testimony support REDACTED was an appropriate placement for Student for the 2021-22 school year.
The documents and testimony escribed the appropriateness of REDACTED for Student, Student’s needs, Student’s program, and the progress Student has made at REDACTED. REDACTED has positively impacted her academic, social-emotional growth growing independence and ability to advocate for herself. This is set forth in detail in the above in the Findings of Fact, and therefore, I find Parent supplied evidence that REDACTED was an appropriate placement for Student.
While District asserted in their closing brief that the placement was not appropriate, there were no specific reasons for this assertion given and only generalized law stated without a statement as to the why student’s placement at REDACTED during the 2021-2022 12-month school year would not fulfill the Prong 2 standard.
PRONG 3
Concerning Prong 3, the balancing of the equities, I find Parent’s cooperation with the CBST NPS intake process sufficient. There is no evidence the District ever offered an appropriate NPS per the unrebutted evidence of Guardian regarding the appropriateness of the only three “contender” schools out of the nine REDACTED applied Student to. District cannot blame Guardian for its failure. I find there is not evidence the Guardians actions were unreasonable. finding Parent was unreasonable.
Parent gave testimony as to the financial hardship paying REDACTED’s tuition would present to the family without providing documentary evidence. Regardless, Parent testified to financial hardship and that is accepted as credible.
Further, I find the interpretation of Connors v. Mills, 34 F. Supp. 795, requiring families without means to prove they are lacking in means to pay up front or be denied direct funding when a family that pays tuition and seeks reimbursement does not have to prove anything about financial. Such an argument or application of the perceived meaning of Connors turns the idea of equities upside down as a Parent that has given proper notice of unilateral placement and request for funding who does not pay and may not be able to pay must prove they cannot afford the tuition and will be denied funding if their financial situation is not proven while a Parent that give the same notice, yet is able to pay tuition up front cannot be denied a reimbursement of tuition simply because they can afford to pay.
There is no obligation under the IDEA that a parent proves at hearing that they cannot pay upfront for the cost of their child's tuition. Parents do not have to create a record of the need for prospective funding, and any such requirement would be inappropriate under the law. Placing such an obligation on a parent flies in the face of the statutory requirement that special education placements are to be provided "at no cost to the parent." N.Y. Ed. Law § 4401(1); Letter to Hampden, 49 IDELR 197 (OSEP 2007).
Parents who bring a due process complaint under the IDEA seeking reimbursement for tuition payment for a unilateral placement are not obligated to show need or evidence of their financial circumstances. A requirement that parents seeking direct funding of tuition for a unilateral placement provide evidence of financial need, while parents seeking reimbursement for the same type of unilateral placement are not subject to such a requirement creates an unequal standard under the law. The entitlement to FAPE cannot be dependent on a family's ability to pay upfront the tuition cost of a unilateral placement. The imposition of a means test would violate the New York State Constitution Art XI § 1. Further, the Southern District of New York has stated that where a parent "lacks financial resources to 'front' the costs of private school tuition, and in the rare instance where the private school is willing to enroll the student and take the risk that the parents will not be able to pay the 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. & Mrs. Ex. Rel D.A. v. New York City Dep't of Ed., 769 F. Supp. 2d 403, 428 (S.D.N.Y. 2011).
There is no contention Parent did not cooperate with the District or the tuition is unreasonable
Further Parent presented her inability to pay to support direct funding request. Parent also provided proper notice of the unilateral placement. There is no evidence the cost is unreasonable.
Therefore, I find the equities favor the Parents and therefore Parent is entitled to Reimbursement for any sums paid under the enrollment Contract for the 2021-2022 year at REDACTED and direct funding for the remainder to REDACTED.
I also find student was entitled to a 12-month school year as there is no dispute the student should be an ESY Student..
Further as the District stated Student needed door-to-door special education transportation to and from school in the IEP I find the District was responsible for providing Student with appropriate door-to-door bus transportation between his home and REDACTED for the 2021-2022 school year.
CONCLUSION
I find the District failed to provide a FAPE to Student for the 2021-2022 school year, and Guardian’s placement of Student at REDACTED for the 2021-2022 school year was appropriate.
The District should fund the 2021-2022 tuition by reimbursing Parent for any sums paid under the 2021-2022 Enrollment Contract and fund directly to REDACTED the remainder outstanding and due under the enrollment Contract for student for 2021-2022.
Student was entitled to a 12-month school year at REDACTED during the 2021-2022 school year.
I also find the District should have provided transportation for Student to get to REDACTED from door-to-door since it was an appropriate special education private placement.
ORDER
Based upon the findings of fact and conclusions of law herein, IT IS HEREBY ORDERED that the following relief be GRANTED to Parent:
IT IS FURTHER ORDERED, Student’s appropriate placement for the 2021-2022 school year was at REDACTED School for the 12-month school year;
IT IS FURTHER ORDERED that the New York City Department of Education fund the entirety of student’s tuition for the 12-month 2021-2022 school year in the amount of $78,775 reimbursement to Guardian for any sums paid towards the tuition and direct funding of the rest to REDACTED;
IT IS FURTHER ORDERED the District should have provided transportation for Student to get to REDACTED from door-to-door since it was an appropriate special education private placement; and
IT IS HEREBY ORDERED that the New York City Department of Education shall immediately comply in all respects with this Decision and Order.
Dated: September 23, 2022
__________________________
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 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.
DISTRICT’S EXHIBITS
EXHIBIT NO.
DATE
DESCRIPTION
NO. OF PAGES
1
01/21/2021
Individualized Education Program
37
2
06/13/2021
Prior Written Notice
7
3
01/20/2021
Vocational Assessment
2
4
12/15/2020
Social History Assessment
2
5
Various Dates
Emails between CBST and Parent
5
6
Various Dates
Non-Public-School Responses
7
7
04/13/21
Emails with REDACTED Academy
2
8
03/2021- Various
Emails with The REDACTED School
6
9
04/15/2021
Emails with REDACTED
1
10
03/2021 and 04/2021
Emails with REDACTED School
6
11
12/6/2021
Affidavit of REDACTED
3
12
12/6/2021
Affidavit of REDACTED
3
PARENT’S EXHBITS
Exh. ID
Date
Description
Pages
Date Admitted
A 9/13/21 Due Process Complaint 4
B 8/25/21 Ten Day Notice 2
C 3/10/21 2021-2022 REDACTED Enrollment Contract 2
D Undated REDACTED Upper School Description 5
E Undated 2021-2022 Student Schedule 1
F October 2021 Student Attendance 6
G 10/19/20 Neuropsychological Evaluation 11
H 21-22 SY Student Progress Report 23
I Undated REDACTED Resume 2
J Undated REDACTED Resume 3
K Various Email Response to Continuing NYSED Approved Day Placement 7
L Undated REDACTED CV 9
M 3/9/22 Affidavit of REDACTED 8
N 3/9/22 Affidavit of REDACTED 7
O 3/9/22 Affidavit of REDACTED 4
P 3/9/22 Affidavit of REDACTED 6
IHO EXHIBITS
I. District’s Closing Brief, 12 pages
II. Parent’s Closing Brief, 18 pages
Footnotes
[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “IHO” for Impartial Hearing Exhibit and “D” for DOE Hearing Exhibit.
[2] The DPC includes a request for relief of reimbursement for reimbursement for evaluations secured by Parents to assist with educational planning but Parent/Guardian’s direct case at hearing did not address this request by offer of evidence or testimony and have not made mentioned this in their Closing Brief, therefore I am not addressing this request for relief in the DPC.
[3] Tis school is in Dobbs Ferry, New York.
[4] It is noted Student was placed at REDACTED starting in September during the 2021-2022 school year, but there is no dispute Student should be in a 12-month or ESY program. D Ex. 1. It is unknown where Student was placed, if anywhere, during the summer of 2021. IT is noted that the 2020-2021 school year had been virtual Student due to COVID -19.