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CASE NUMBER: 562274 - NYC: 218125
FINDINGS OF FACT AND DECISION
Case Number: 218125
Student’s Name: REDACTED
School District: N.Y.C. Dept. of Ed., District #REDACTED
Impartial Hearing Officer: Harry A. Christodoulou
Date of Filing: 09/22/2021
Hearing Requested by: REDACTED
Date of Hearing: 03/25/2022, 04/11/2022, 04/12/2022, and 05/05/2022
Record Close Date: 06/15/2022
Date of Decision: 06/18/2022
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 25, 2022
For the Student:
REDACTED (hereinafter referred to as “Parent’s representative”)
REDACTED (hereinafter referred to as “Parent’s Witness 1”)
For the Department of Education (“DOE”):
REDACTED
Observers:
REDACTED (hereinafter referred to as “Observers”)
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 11, 2022
For the Student:
Parent’s representative
Parent’s Witness 1 For the DOE:
None
Observers:
Observers
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 12, 2022
For the Student:
Parent’s representative
REDACTED (hereinafter referred to as “Parent’s Witness 2”)
REDACTED (hereinafter referred to as “Parent’s Witness 3”)
For the DOE:
District’s representative
Observers:
Observers
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 05, 2022
For the Student:
Parent’s representative
Parent
REDACTED (hereinafter referred to as “Parent’s Witness 4”)
For the DOE:
District’s representative
Observers:
Observers
BACKGROUND AND PROCEDURAL HISTORY
Student is an REDACTED-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). The Student’s eligibility for special education supports and services is not in dispute.
On September 22, 2021, the Parent, through the Parent’s representative law firm, filed a due process complaint (“DPC”) against the DOE pursuant to the IDEA. I was appointed on November 02, 2021, to preside over the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1) to determine the claims in the DPC, concerning the special education program of the Student.
The parties sought, and were afforded time, to try to resolve the matter without the need for an IH. At a status conference (“SC”) held on January 31, 2022, Parent’s representative at the SC requested that an IH be scheduled, and it was agreed to schedule the IH for March 25, 2022 (T. P7, L18-25; P8, L1-4).
JURISDICTION
A decision in this matter is being rendered, pursuant to the IDEA[1], and its implementing regulations[2], and the New York State Education Law[3], and its implementing regulations[4].
PARTIES’ POSITIONS AND CASES PRESENTED
DOE:
At the IH that commenced on March 25, 2022, the District’s representative informed me that the DOE did not have witnesses available on that day to present evidence but made a request to have witnesses available later (T. P17, L23-25; P18, L1).
Parent’s representative made a request that the District be deemed to have had their chance to present witnesses at that IH, and then to allow the Parent to go forward and present the Parent’s case. Parent’s one witness was available to testify at the IH. (T. P22, L17-23).
In response to the Parent’s request, the DOE argued in essence that it would be unfair to the DOE to preclude it from presenting one witness, namely the special education teacher who participated in the meeting and in the development of the Student’s Individualized Education Program (“IEP”), and who was familiar with the program recommendation that was made and offered (“DOE’s Intended Witness” - defined on page 35) and the DOE therefore made an application to adjourn the IH (T. P25, L25, P26, L1-20; P30, L20-25; P32, L1-17). After hearing from the parties, the District’s representative’s request to adjourn the IH was granted[5] (P33, L17-25; P34-6; P37, L1-13).
At the next hearing date, I sent a courtesy email to the District’s representative requesting him to join the hearing so that we could begin the IH, when he did not join at the scheduled start time (Exhibit IHO-I-2). Subsequent thereto, District’s representative communicated by email that the DOE’s witness’s conference had run over and that she had not had lunch, and that he was trying to join the hearing telephonically (Exhibit IHO-II). I sent the district’s representative a second courtesy email informing that the IH (which had been scheduled to start at 1:00pm) would proceed at 1:30pm and that if there was no appearance, I would be entertaining the Parent’s motion to preclude the DOE from calling witnesses and, if granted, I would be proceeding with the Parent’s case (Exhibit IHO-I-1 & -2).
There was no response to my email (whether to request an extension of time to join the IH, to delay the start time further, or to adjourn the IH) and ultimately no appearance by the DOE, either by the specified revised start time or at all, at the IH held on April 11, 2022. Parent’s representative renewed the Parent’s application to preclude the DOE from calling witnesses, which was then granted. Parent’s representative was then invited to proceed with the Parent’s case (T. P44, L15-25, P45-6; P47, L1-9). After the hearing concluded for the day, I sent a courtesy email to update the District’s representative of what had transpired at the IH (Exhibit IHO-I).
Notwithstanding Parent’s representative’s objection to one of the DOE’s exhibits[6], noted on the record, the 15 documents proposed by District’s representative were admitted to the record (and are listed below) (T. P90, L18-24; P101, L23-25; P102-5; P106 L1-17).
It was agreed that the parties would submit written closing briefs by May 31, 2022. The DOE chose not to do so.
Parent:
Parent, through the Parent’s representative, submitted 12 documents in support of the Parent’s case. All the proposed exhibits were admitted to the record (and are listed below) after previously confirming with the District’s representative that there were no objections from the DOE to those documents being admitted into evidence (T. P19, L24-25; P20, L1-5; P47, L9-25; P130, L23-25; P131, L1-6).
Parent’s representative called four witnesses, as well as the Parent, to testify in support of the Parent’s case.
In an opening statement at the IH, Parent’s representative asserted, inter alia:
How the Student’s condition resulting from Student’s Diagnoses (defined on pages 35) worsened over time reaching a point where it prevented her from doing academic work and interfered with her ability to attend school at all; the Student’s conditions continued to impede her ability to function in school despite placement in a therapeutic school, to the point where she required placement in a residential treatment center; that the consensus of her treatment team and those who knew and worked with her indicated that she would require placement in a residential school following her release.
The Parent secured such a setting at the Attending School (defined on page 35), which provided the Student with the structure, support, and the flexibility that she needed with the necessary treatment modalities; the Student made appropriate academic progress and was (at the time of the IH) on track to graduate from high school; and asserted the obligations placed upon the DOE under the IDEA to address the Student’s Diagnoses.
The DOE failed to provide such services to the Student for the school year (“SY”) in issue, in that it specifically failed to recommend a non-public school placement for the Student despite the IEP team agreeing that her needs could not be met at a public school; the Parent would establish that the Attending School was an appropriate and highly successful placement for the Student and that there are no issues that would bar reimbursement.
As part of the Student’s program, she attended home visits with her family and worked on reintegrating with her community; and Parent is seeking reimbursement for the full cost of the Student’s attendance at the Attending School, including the cost of transportation for both the Parent and the Students, to and from the school, to attend the family visits that were an integral part of the program (T. P68-P70).
Parent’s representative submitted a written closing brief by the agreed date (Exhibit IHO-III).
PREVAILING PARTY
The Parent is the prevailing party, and an award or Order is granted in his favor.
GENERAL LEGAL FRAMEWORK
A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits[7].
If a procedural violation is alleged, an impartial hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits[8].
The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE[9], and default judgments are disfavored by the federal courts[10]. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”[11].
School districts are not required to “maximize” the potential of students with disabilities[12], but must provide “an IEP that is ‘likely to produce progress, not regression,’ and... affords the student with an opportunity greater than mere ‘trivial advancement’”[13]. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit”[14].
The IDEA does not automatically require the provision of school services during the summer months for all students with disabilities; rather, such services must be provided when they are a necessary element of a FAPE for the student[15].
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement, which exception applies in this case[16]. The parties confirmed their agreed understanding of the applicable burden (TP9, L13-25; P10, L1-19).
The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parents’ claim[17].
FINDINGS OF FACT AND DECISION
Prong I - Denial of a FAPE:
The claims in the DPC relate to the Student’s special education program and placement for the 2021-2022 SY, asserting that based on numerous procedural and substantive grounds, the DOE failed to offer the Student a FAPE. Parent is seeking, inter alia, tuition reimbursement for the cost of the Student’s placement at the Attending School for the 2021-2022 SY (Exhibit P-A-13).
In a recent case[18] that addressed a statute of limitations issue, the parent had relied upon the following failures by the DOE (the “Failures”): to hold an annual review for the student for the relevant SY; to provide the parent with prior written notice of a change, or lack thereof, to the student's IEP; to send a school location letter with a placement for the student for the relevant SY; and to produce an annual IEP by the first day of the relevant SY.
In that case, it was conceded by the DOE that the Failures had constituted the denial of a FAPE and, like this case, the DOE did not contest that it had denied the student a FAPE (in this case Prong I is being conceded by the DOE). The IHO Decision, which was the decision being appealed, did not probe whether the denial of a FAPE was procedural, substantive, or both, but found that "the DOE's failure to present a case at the hearing is a concession that it denied the student FAPE....". The U.S. District Judge wrote, about the Failures, that in “any case, there were clearly both procedural and substantive violations of IDEA that amounted to the denial of a FAPE”.
In addressing the nature of the violation for failing to have a written IEP in effect by the first day of the school year (i.e., whether it is procedural or substantive), the U.S. District Judge wrote:
“Substantive violations of IDEA may include the failure to propose an IEP or deficiencies in the IEP itself. Id.; Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238-39, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). School districts are required to have a written IEP in effect for each child with a disability by the beginning of the school year, 20 U.S.C. § 1414(d)(2)(A), and, in New York State, the school year begins annually on the first day of July. See N.Y. Educ. Law § 2(15). Thus, failure to provide a written IEP by July 1 constitutes a substantive denial of FAPE. C.W.L. and E.L. v. Pelham Union Free Sch. Dist., 149 F. Supp. 3d 451, 465 (S.D.N.Y. 2015)” (my emphases).
Based on the documentation submitted by the DOE into evidence, the DOE held an IEP meeting on April 12, 2021 and developed a written IEP for the Student (Exhibit DOE-3). Additionally, the DOE gave prior written notice and sent the Parent a school location letter, identifying a school placement for the Student, prior to the start of the extended SY for the summer (Exhibits DOE-4 and -5, respectively) and for the remainder of the SY (Exhibits DOE-6 and -7, respectively).
The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”[19] The DOE planned to call a witness, namely the DOE’s Intended Witness to testify regarding the program offered and/or the DOE Proposed Summer School (defined on page 35) and/or the DOE Proposed School (defined on page 35), who would likely have been able to speak to the program developed on April 12, 2021 at the IEP meeting, as the witness was part of the IEP team, listed as the “Related Services Provider/Special Education Teacher” (Exhibit DOE-3-25).
The DOE did not present any testimony to substantiate a case that it offered the Student a FAPE for the 2021-2022 SY, having failed to avail itself of the opportunity to do so and then being precluded from doing so. As such, there is no explanation, let alone a cogent and responsive one, for their decisions on record that shows that the Student’s IEP was reasonably calculated to enable the Student to make progress appropriate in light of her circumstances.
Parent expressly challenged the program (and consequently placement) recommendations, asserting in the DPC that the “DOE continued its recommendation for a special class (10:1:1) in an SED approved non-public day school as well as an interim D75 placement. The CSE also recommended [the Student] receive 12-month programming and specialized transportation. The parent expressed his concerns during the meeting regarding the appropriateness of a D75 placement, even on an interim basis, considering that everyone at the meeting agreed that [the Student’s] needs cannot be met in the public-school system.” (Exhibit P-A-3, par. 12).
Whilst default judgments are disfavored by the federal courts, the DOE knew from the contents of the DPC, as well as the Parent’s 10-day notices, that the Parent was taking issue with the program and placement recommendations. Parent’s evidence (addressed below) overwhelmingly supports a finding that the proposed program recommendations (Exhibit DOE-3-17) and placement recommendations (Exhibit DOE-5-1 & -7-1) would not have been appropriate for the Student for the 2021-2022 SY. Accordingly, even if the DOE could have overcome the challenge to the appropriateness of the proposed placements by showing that the facilities in question were ready, willing, and able to implement the Student's IEP, that would still not have availed the DOE.
When considering that the burden is on the DOE for Prong I, without any evidence to gainsay the testimony of the Parent’s witnesses and documentary evidence, the scales are tipped in favor of the Parent and the District has failed to overcome the Parent’s challenges to the appropriateness of a proposed program and placement recommendations. Accordingly, the Parent’s representative’s first argument for finding in favor of the Parent must succeed (Exhibit IHO-III-2 & -3).
Appropriateness of the DOE’s placement and the Failure to Reconvene:
Parent’s representative’s second and third argument for finding in favor of the Parent bear further examination (Exhibit IHO-III-3 to -6). The "reasonably calculated" standard of Endrew F. indicates that crafting an appropriate program of education requires a prospective judgment by school officials, informed by their own expertise and the views of a child's parents or guardians[20].
An IEP must be judged as to its appropriateness at the time that it is written, not with respect to subsequently obtained information about the student[21]. There is also district court authority indicating that a parent has a right to obtain information about an assigned public-school site[22]. Parents generally do not have a procedural right in the specific locational placement of their child[23].
At least one federal Circuit Court has ruled that a parent may challenge a proposed placement based on evidence that the assigned school is incapable of implementing the student's IEP[24]. However, a parent cannot recover the cost of a unilateral private placement based on speculation that the chosen school will fail to implement the student's IEP despite having the ability to do so[25]. A district can overcome a challenge to the appropriateness of a proposed placement by showing that the facility in question was ready, willing, and able to implement the student's IEP[26]. That said, a district seeking to establish the appropriateness of a proposed placement cannot simply argue that it would have made the school compliant. The court will focus on the information available to the parents when they considered the placement offer[27].
Even where the child has not yet set foot in the public school, a parent may challenge the district's proposed placement as failing to uphold the IEP. However, a parent's assertion that a district could not implement the IEP might be too speculative if the parent unilaterally places the child at a private school before the district has a chance to implement the IEP[28].
Parent’s Witness 4 testified as to:
Her occupation, education, and certifications; her familiarity with the Student, including how long she has been treating the Student (since September 2020) and the frequency (twice a week); the conditions for which she had been treating the Student and how those conditions impacted the Student’s ability to function in school, and explained in detail how each of the Student’s Diagnoses, and in particular Student’s Diagnosis 1, caused difficulties in the Student’s school work and all the areas of her life, including how her fears would increase under intense stress, preventing her from attending school (even remotely) during those times.
How Student’s Diagnosis 2 impacted many areas of the Student’s life and that she was only able to eat a very limited amount of food, but that the problem was that in school no-one was able to see what she was eating, so the Student used to restrict a lot, that caused weight loss and vitamin deficiency; how the Student’s Diagnoses interacted with each other, and while enrolled at the Previous School (defined on page 35), these did not allow the Student to go to school or do any school work whatsoever.
Her being part of the decision made for the Student to go to the Attending School, because she felt that the Student was not able to function in school and that all the treatment the Student was receiving in school, and at home, was not making any difference; and the methods that were tried (therapy and medication), but that sometimes with Student’s Diagnosis 1 “flooding” or intense exposure to all the Student’s fears could work, but that the Student needed a higher level of care where this could be addressed, and was addressed successfully.
Her continued treatment of the Student; that the Student’s attendance at the Summer School was an important part of the treatment as she had first seen improvement at the Summer School, which was unfortunately a short term setting necessitating the Student having to attend the Attending School to reinforce and strengthen all the gains made at the Summer School; the Student made tremendous gains, including the ability to do her high school work and ultimately graduate from high school, and was able to make friends; the many ways in which the exposure therapy that occurred in the residential portion of the program translated to the Student’s performance at school, with specific examples provided to explain how.
The part-time job the Attending School arranged for the Student, which was arranged as part of the therapeutic program at the Attending School[29] and for which the Student received credit in the state but not through the Attending School; her (Parent’s Witness 4) pressing for some time for the Student, when she was home, to work and that even though she wanted to, she was not able to do any kind of work outside of the house; the Student being provided support to prepare her to begin part time work, including the therapies and being exposed to other kids with similar anxieties, helped the Student take a chance and do the work, which she could not do in the beginning (when first attending at the Attending School) (T. P113-P129).
Parent testified as to:
His relationship to the Student (biological father) and provided a description of his daughter, her journey through the various grade levels and reflected, in hindsight, upon where the Student started exhibiting signs of the Student’s Diagnoses, but how she struggled for a long period of time before they (Parents) figured it out; the worsening schooling experiences (prior to the SY at issue) and the different treatment options considered, which were to no avail, leading up to the Student’s attendance at the Previous School; the ways in which the Student was engaged at the Previous School, and the progress she was able to make there; some of the difficulties the Student had at the Previous School towards the end of the SY during the prior SY; and how the Student made great progress as the Summer School.
His attending the IEP meeting on April 13, 2021 and that the recommended program set out in the “well written IEP report” made a recommendation for a non-public school; being informed that schools that the team thought could serve the Student’s needs would reach out to him and that he responded and considered each school that contacted him; his recollection of the names of schools that contacted him and, when he returned calls, not getting calls back in every instance; his own research on the schools through various state databases etc., whether or not he talked with the schools; and not finding that any of those schools were able to implement the class ratio on the Student’s IEP, and that even if they could he nevertheless had a number of serious concerns (with examples provided).
How the Previous School “took her far”; his willingness to have accepted a school that reached out to him if he had felt it would have been appropriate for the Student; how it was tough for them that the Student, based on the advice of all her advisors, needed to be away from home; the lack of flexibility of any of the schools that he talked with to create a custom-designed situation for the Student that would have allowed her to graduate, due to how far behind she was academically, and that she did graduate high school on time.
His consistent cooperation with the DOE in connection with the evaluation, the IEP, and placement process for the Student; the enrollment agreement he concluded with the Attending School and being in compliance with it (referencing Exhibit P-H); the cost of the program and amounts paid (addressed below under Prong III); and the costs of travel (addressed below under Prong III) (T. P132-P152).
The evidence from Parent’s Witness 4 and the Parent paints a very clear picture of how the Student’s condition based upon Student’s Diagnoses had worsened and that the Parent, guided by the Outside Clinical Team (defined on page 35), was desperately searching for a school solution that could provide the Student with what she needed to be successful, given her condition.
At the time of the IEP meeting on April 12, 2021, the Student did not have the formal Student Diagnosis 2 as part of her diagnoses, having relied inter alia upon the neuropsychological report in the development of that IEP (Exhibit P-B-9; DOE-4-2; & -6-5).
Therefore, at the time that the IEP in question was developed, it did not provide for and cater to this diagnosis[30], which Parent’s Witness 4 made very clear in her testimony was impacting the Student’s ability to do schoolwork and be educated (T. P123, L15-23). Student’s Diagnosis 2 was not only included as a diagnosis in the Summer School’s discharge summary document, but it was also included and addressed as part of the goals that the Student needed to address as part of the “Long Term/Discharge/Graduation Goals” (Exhibit P-I-2, & -3).
Parent sent the DOE a request for an emergency IEP meeting on September 07, 2022 to consider the latest clinical information and offer the Student an appropriate program and placement (Exhibit P-E, & -F). Accordingly, had the DOE complied with its obligations at that time, the Student’s program could have been revised to cater for the Student’s worsening condition, which led to her diagnoses to include Student’s Diagnosis 2.
As asserted by Parent’s representative, the “DOE was required to hold an IEP meeting and make a recommendation within 60 school days of receiving this request. 8 N.Y.C.R.R. 200.4(d). To date[31], there has been no response. (Tr. 146). As such, the DOE has failed to comply with the timeline to carry out a reevaluation” (Exhibit IHO-III-5). It is noted that the 60 days referenced would have ended on or about November 6, 2021, but also that the IEP proposed for the 2021-2022 SY had a projected implementation period from April 19, 2021 through to April 12, 2022, not covering the entire SY. These factors are relevant when addressing Prong III and did factor into my determination.
A district cannot abdicate its responsibility to develop an IEP based upon the unique circumstances of the Student[32]. If a district knows or has reason to believe that a student will require certain services, it must evaluate the student’s needs and offer appropriate supports in a timely manner[33] (my emphasis). The district has an affirmative obligation to offer the student a FAPE[34]. With certain exceptions, a student’s IEP is required to be reviewed periodically, but not less frequently than annually, and revised as appropriate[35] (my emphasis).
Even though the documents that Parent presented to the DOE up to September 07, 2021 do not reference Student’s Diagnosis 2 as a formal diagnosis, it is not the Parent’s obligation to have the Student evaluated and diagnosed. I therefore find, based on Parent’s Witness’s testimony, that the Student’s Diagnoses required factoring into her educational program appropriate supports, including supports that addressed Student’s Diagnosis 2, to provide the Student with educational benefits and a FAPE for the 2021-2022 SY.
The only IEP on record for the 2021-2022 SY is one that recommended “a special class (10:1:1) in an SED approved non-public day school as well as an interim D75 placement” and which failed to account for Student’s Diagnosis 2 and the appropriate services and supports that her diagnoses warranted for educational benefits to accrue (Exhibit DOE-3).
Based on the evaluative materials before the IEP team (Exhibit DOE-4-2; & -6-5) and the Neuropsychologist’s recommendation to “continue to be placed in a small (1:1), structured, and supportive classroom setting housed within a small, therapeutic, and nurturing school environment that can provide her with ample support for her unique areas of difficulty”, noting that the Student’s condition deteriorated even further subsequent to the evaluations that were performed, the program and placement offered was neither supported by the evaluations and findings of the evaluators nor justifiable based upon the DOE’s own IEP it had prepared (Exhibit DOE-3).
The very fact that the DOE offered a temporary placement setting is a tacit acknowledgment that it too knew that this was not the right placement or setting for the Student. When the Parent was presented with the program offered by the DOE for the 2021-2022 SY, and no subsequent revised or updated program recommendation pursuant to Parent’s request for an emergency IEP meeting to reconvene was forthcoming, the Parent was justified in rejecting the “temporary” program offered and retaining the Student in a private placement.
Accordingly, I find that the DOE failed to provide the Student with a FAPE for the SY at issue, in that it failed to timeously offer the Student “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”[36].
In the circumstances, I find that the DOE’s program and placement recommendation for the 2021-2022 SY was inadequate to provide the Student with a FAPE and there was therefore a denial of a FAPE for the 2021-2022 SY.
Out-of-State Residential Placement:
Parent’s Witness 4 wrote in a letter in support of a residential placement that at “times her (referencing the Student) anxiety was so difficult to tolerate that made [the Student] have suicidal ideations and plans” (Exhibit P-G). During cross-examination Parent’s Witness 3 testified that he could not remember there being an expression of ideation, when asked if there were some concerns that the Student may be in danger of hurting herself, but also stated that “she was very activated here and needed to utilize skills throughout the day just to regulate herself to be here (referencing the Previous School)”.
Actual and past attempts at suicide are taken seriously for purposes of deciding what type of educational environment is necessary[37]. Additionally,[38] truancy on its own has not provided a basis for residential placement[39]. The reasons underlying such behaviors are more important and whether the student's absenteeism interferes with the student's ability to obtain an educational benefit in a typical school setting. In such a case a residential placement may be appropriate.
Although a district has no obligation to fund a residential placement that is based purely on a student's medical needs, the line between medical and educational services is not always clear.
A court or independent hearing officer may find that a residential placement is educationally necessary if the supports the student receives qualify as related services under the IDEA[40].
Parent’s Witness 3 testified as to:
His education, credentials, and work experience; the accreditation of the Previous School, being an accredited therapeutic day a school, and the students that the school works with, namely those with a certain variety of chronic mental health issues, who often have mild to moderate learning issues; and his familiarity with the Student and the duration of her time at the Previous School; the progress the Student made in that setting.
Despite all of the Student’s progress there came a time when a carefully thought out clinical decision was made by the Outside Clinical Team that the Student’s time would be best spent to have a more intensive intervention to treat some of her clinical issues, mainly her severe Student’s Diagnoses; the decision at the end of the year was to have the Student attend as a short term inpatient or residential treatment site (Summer School) with a focus on doing very intensive exposure work for Student’s Diagnoses, with the intent of that being a pathway back to the Previous School.
After discussing the outcome or conclusion of that intensive treatment program with the Educational Consultant (defined on page 35) at Summer School, as well as with the Parent and the Student, the overriding clinical guidance at that time was that although progress had been made at the Summer School and although the Student was offered a spot back at the Previous School, the Student needed to stay in a residential environment to continue to work on her issues.
Some of the issues that arose when the Student was at the Previous School and provided examples of how her disabilities manifested and noted that the Student was characterized just short of chronic high-level anxiety; him not remembering “there being a ton of concern about significant risk”, but that the Student was “a kid at risk for sure”, also describing her as an “extremely kind of high-acuity complex clinical case” (T. P93-P97).
Author 1 wrote in her letter of recommendation, inter alia:
“In sum, as lower levels of care have been attempted without sufficient improvement, it is my firm belief that [Student] requires a residential level of care. I am concerned that if she does not receive this care, she will continue to experience intense levels of distress and fail to meet appropriate educational or employment goals. [Student’s] treatment team and I agree that it is medically necessary for her to obtain placement in a residential setting that can provide for both her mental health and educational needs” (Exhibit P-J) (My emphases).
Author 2 wrote in her letter of recommendation, inter alia:
“[Student] and her family have made significant attempts to treat [Student’s] symptoms through intensive outpatient care and therapeutic day schools, but were unable to reach any sustained recovery.
I agree with [Student’s] treatment team that it is medically necessary for her to enroll in a residential setting that can provide for both her mental health and educational needs.” (Exhibit P-K) (My emphases).
Parent’s Witness 4 wrote in her letter of recommendation, inter alia:
“In the end we all agreed that a residential level of care was necessary to achieve significant and lasting improvement of [Student’s] condition. I and the outpatient team working with [Student] consider this to have been a medically necessary treatment course” (Exhibit P-G) (My emphases).
During cross-examination Parent’s Witness 3 testified in response to District’s representative’s question whether Parent’s Witness 3 was saying that the educational setting that had therapeutic components to it was not sufficient for the Student for her to continue to remain at that school that:
The ultimate decision that was made by others other than him, when the Student left the Previous School, was that she was making enough progress but that the Outside Clinical Team would like to see her make even more progress.
Although the Student was doing well at school, she had to go as the Previous School is a day school, so the thought was putting the Student in a closed system, away from the family system, would be advantageous in terms of her response to treatment (my emphasis).
During cross-examination Parent’s Witness 3 also testified in response to District’s representative’s question whether the Previous School provided services for the family within the school, that most of the family work was being done through the Outside Clinical Team, who were really dictating “a lot of the clinical roadmap which we were able to support here through individual therapy, group therapy, art therapy, etc.” (T. P97-P99).
Based on the record I find that the Outside Clinical Team was, understandably so, primarily focused on finding a more suitable environment that could provide the Student with an elevated level of medical treatment for her medical conditions. This is supported by Parent’s testimony that when the Student was in a purely treatment center with no academics, they saw great progress, which came up in Parent’s Witness 4’s observations (T. P140, L14-21).
The out-of-state residential setting (Attending School) provided just that, namely an environment that provided enhanced treatments, but it also provided academics. Parent’s Witness 3’s testimony confirmed that despite all the Student’s progress there came a time when a carefully thought-out clinical decision was made by the Outside Clinical Team that the Student’s time would be better served at a more intensive intervention to treat some of her clinical issues. I also find however that the Student was making educational progress at the Previous School and would have continued to do so for the 2021-2022 SY if she had continued to be enrolled there. Parent’s Witness 3 confirmed this, and that the Student was offered a spot back at the Previous School.
I find that given the testimony of Parent’s Witness 3 who confirmed that the Student was making enough progress notwithstanding the Student's absenteeism, it did not interfere with the Student's ability to obtain an educational benefit in that school setting (Previous School), and therefore the out-of-state residential placement was not warranted. Given my finding as to the DOE’s failure to provide the Student with a FAPE for the 2021-2022 SY, I address this as part of the relevant equitable considerations (i.e., Prong III).
My finding above is further supported by Parent’s testimony and actions, who had just less than two weeks before sending the 10-day notice relevant to the Attending School, had sent the DOE a 10-day notice relevant to the Previous School confirming that on April 13, 2021, the hearing officer in the Parent’s prior case had ruled in favor of the Parent’s reimbursement request and found the Previous School to be an appropriate placement for the Student and that absent a timely, appropriate placement offer, he intended to re-enroll the Student at the Previous School and assert pendency for the 2021-2022 school year beginning in September 2021 (also requesting the DOE to arrange for specialized transportation between his home and the Previous School).
I find that the Previous School did not suddenly, two week later become an inappropriate placement, but that the Parent, who, understandably as loving parents would, wanted the best environment that could treat the Student’s Diagnoses and help her to make more, even substantially more progress from a medical, not educational, point of view, found a preferred school to enroll the Student. A school that would create a custom-design program that could “fast-track” the Student’s education, who had fallen behind, to provide an opportunity for her “to graduate on time” (T. P143, L16-25; P144, L1-5).
The IDEA “only guarantees an 'appropriate' education, 'not one that provides everything that might be thought desirable by loving parents”[41]. Similarly, it is not required to ensure that students with disabilities graduate “on time”. The DOE is therefore not obligated to fund such out-of-state placement as part of its obligations to provide a student with a FAPE under the IDEA. Given my finding as to the DOE’s failure to provide the Student with a FAPE for the 2021-2022 SY, I address this as part of the relevant equitable considerations (i.e., Prong III), and specifically in the award provided (see #1.b of the Order).
The DOE has not met its burden in these proceedings to establish that it provided the Student a FAPE for the 2021-2022 SY. Parent has accordingly met the first criterion of the test set out in Burlington/Carter for tuition reimbursement.
Prong II – Appropriateness of the Parent’s Placement:
Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student”[42]. The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements”[43].
The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. The standard to apply is whether “[the] unilateral private placement... provides educational instruction specifically designed to meet the unique needs of a handicapped child”[44].
The Judges in the Gagliardo case wrote that “no one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction”[45] (my emphases).
In both instances highlighted above, the focus is on the needs of the child, which are individual and unique, and the placement must reasonably serve those needs to an extent that permits the child to benefit from the instruction.
Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private placement need not provide certified special education teachers or an IEP.
A District is not required to conduct its own evaluations in developing an IEP and recommending an appropriate program but may rely on information obtained from the Student’s private school personnel, including sufficiently comprehensive progress reports, in formulating the IEP[46].
Evidence on record:
Parent’s representative presented detailed testimony by Parent’s Witness 1, Parent’s Witness 2, and the Parent, and submitted documentary evidence, in support of the Parent’s position that the Attending School placement was appropriate.
Parent’s Witness 1 testified as to:
Her education, credentials, work experience and duties; the program offered, and the learning approach adopted at the Attending School; the curriculum offered, comprising a hybrid model (online platform and learning platforms); how the Attending School sets about offering onsite credit with the assistance of four part-time teachers, including information relating to their certifications and teaching experience; and the collaboration that takes with the Student and the Parent(s).
The Attending School’s ability to accommodate, on an individualized basis (especially due to the small class sizes), self-pacing of the course curriculum, due to the schooling happening year-round; the typical class size (not exceeding 8 students, with rolling admissions) and enrolment (20); the therapeutic services (“Therapeutic Services” – defined on pages 36) offered; the credentials of the staff providing the Therapeutic Services; and the typical students that “do well there” (referencing the Attending School), being students that are ready to work on therapeutics and academics.
Her familiarity with the Student, being the Academic Director at the Attending School, having worked closely with the Student in an academic setting; the growth she had seen in the Student, especially because the Student had “taken on a lot therapeutically as well as academically”; the programming provided to the Student given the Student’s Diagnoses, speaking more to the day portion of the program; and the educational progress being made due to the Therapeutic Services.
The residential program being supervised with staff available 24/7; home visits being part of the program, with family and individual therapies continuing virtually, with the option to continue with the online portion of the work; and that she believes that the Student required a residential program and that the Attending School was an appropriate program for the Student for the 2021-2022 SY (T. P52-P66).
Parent’s Witness 2 testified as to:
Her education, credentials, work experience and duties; the Therapeutic Services offered; the credentials of the staff providing the Therapeutic Services, including certifications and education; the residential portion of the program outside of the academic day, providing specific details of what it included and the responsibilities of the 24/7 direct care staff; the required home visits that are part of the program, explaining how the skills learned in the Therapeutic Model (defined on page 36), to be applied at home and to be integrated into the home environment.
The continuation of individual and family sessions, medication management, and any additional supports needed, as well as academics, during home visits utilizing Zoom; how the Therapeutic Services the Student received impacted her ability to make academic progress, linking it to Student’s Diagnoses and her treatment goals; the primary treatment modality that all the Attending School’s clinicians and staff are trained in, namely the Therapeutic Model, which was vital for the Student’s progress, as her particular mental health diagnoses required a treatment of the Therapeutic Model.
The home visits the Student undertook, which were very positive visits and enabled the Student to see areas that she was continuing to struggle with relating to Student’s Diagnoses and apply newly gained skills in the home environment; the Student’s need for a residential placement at that time, and how failing to overcome (or reach) the therapeutic goals would be detrimental to the Student in other learning environments.
How the Attending School measures the Student’s emotional growth or stability, including specified formalized assessments (“Formalized Assessments” – defined on page 36), self-reported on by the Student monthly, together with the treatment team that met twice a month to review the Student’s progress in daily living; and the Student’s participation in the Therapeutic Services during home visits through Zoom, as well as the duration of such home visits (T. P76-88).
District representative had some limited cross-examination for Parent’s Witness 2 and the Parent, which neither availed the DOE nor prevented the Parent from meeting his burden.
I find that the program offered at the Attending School is specifically designed to cater to a class or category of student, namely students with learning disabilities that require moderate to higher levels of therapeutics to address their diagnosed disabilities to make them available for learning. The entire program, including the learning or hybrid model and the therapeutic supports provided are all designed to meet the needs of this class or category of student. The Student with her diagnoses falls within this class or category.
Additionally, there is detailed uncontested evidence presented by Parent’s Witness 1 substantiating how the Attending School specifically tailored the already specialized program – for the class or category of student – even further for this Student’s unique and individual needs, including inter alia: a personalized plan on how the Student could make progress at the Attending School; how they worked with the Student’s therapeutic team to create a positive experience academically for the Student at the Attending School; and meeting with the Student in person to create rapport with the goal of developing a course plan, including the number of courses to be taken (full course load, or minimum load) (T. P53; P54; P55; P56) (Exhibit P-I).
The testimony of the Parent and Parent’s Witnesses 1, 2 and 4, and the Parent’s documentary evidence (Exhibits P-H and I) establishes that the Attending School was appropriate and provided the Student with educational instruction that was specifically designed to meet her unique special education needs, supported by such services that were necessary to permit her to benefit from instruction, for the 2021-2022 SY.
I find that, based on the Student’s attendance at the Attending School for the SY in question, as testified to by the Parent and Parent’s Witnesses 1, 2, and 4, the Student made progress during the 2021-2022 SY.
The Parent has therefore met the second criterion of the test set out in Burlington/Carter for tuition reimbursement.
Prong III – Equitable Factors:
Equitable considerations are relevant to fashioning relief under the IDEA[47].
The IDEA also provides that reimbursement may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents[48].
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice 10 business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense”[49].
This statutory provision “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools”[50].
Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision[51].
The hearing record reflects that the Parent notified the CSE by letters dated August 25, 2021 (Exhibits P-C & -E), emailed on August 25, 2021 and September 07, 2021, respectively (Exhibits P-D & -F), of his intention to place the Student at the Previous School and then at the Attending School and seek public funding for the 2021-2022 SY.
I find that in these letters the Parent offered sufficient information to put the DOE on notice about the Parent’s concern regarding the CSE’s failure to make an appropriate program and placement recommendation and informed of his ultimate intention to place the Student at the Attending School for the 2021-2022 SY, giving the District an opportunity to cure any deficiencies, which is the intent underlying the 10-day notice requirement[52]. Given that the Student’s admittance date was September 22, 2021 (Exhibit P-H-1), the DOE was afforded 10 days’ notice even with the second letter.
Parent signed a contract enrolling the Student in the Attending School prior to the start of the 2021-2022 SY on September 12, 2021 (Exhibit P-H-7), before the 10-days set out in the Parent’s notice were up. The Second Circuit has however explained that, so long as parents cooperate with the CSE, “their pursuit of a private placement [i]s not a basis for denying their [request for] tuition reimbursement, even assuming... that the parents never intended to keep [the student] in public school”[53].
Parent attested that he consistently cooperated with the DOE, although there was not much asked of him (T. P145, L1-7). The only evidence pointing to the potential lack of co-operation is contained the DOE’s document to which Parent’s representative objected based upon hearsay, admitted into evidence as Exhibit DOE-15. Besides not being authenticated there is also no testimony on record to confirm the statements that the family refused interviews or did not call back. Parent asserted that he responded to every school that reached out to him. Without any testimony on record to counter this assertion, it cannot be disproved. There is also no context for timing on record. For example, Parent may have returned a call but the school’s response indicating that the call was not returned had already been sent. There is also no evidence that the school’s made reasonable efforts to contact the Parent. For example, one letter indicates that they could not leave a voicemail message, so the school personnel gave up (Exhibit DOE-15).
Parent testified during cross-examination that he did attend virtual tours and that the only time he chose not to accept the invitation to be interviewed was where they (the inviting school/s) insisted that the Student come in person before any part of the admissions process or information sharing could begin. He further stated that there were no on-campus interviews offered to him without the Student. This also may have accounted for the family’s refusal noted in the correspondence (Exhibit DOE-15).
Since the Parent’s testimony is not wholly inconsistent with the contents of Exhibit DOE-15 or could not be tested or challenged based upon the testimony of the school personnel attempting to contact the family, the Parent will be afforded the benefit of the doubt, and this therefore does not factor in as an equitable consideration.
Save for finding that the out-of-state placement was not warranted, Parent has therefore met the third criterion set out in Burlington/Carter for tuition reimbursement. Having met all three criteria of the Burlington/Carter test, the Parent is entitled to funding for the cost of the Student’s placement at the Attending School for the 2021-2022 SY.
Amounts Claimed:
I enquired from Parent’s representative whether Parent’s Witness 1 would be testifying as to the amounts paid/owing to the Attending School etc. Parent’s representative responded that he was not planning to ask Parent’s Witness 1 those questions and Parent’s Witness 1 confirmed that the information would have to be addressed through a different witness (T. P62, L16-25).
Parent submitted into evidence a statement from the Attending School (Exhibit P-L), which reflects amounts invoiced, paid, and credited. Parent also provided testimony regarding this statement. None of the invoices reflected in the statements were submitted into evidence, which could have demonstrated what the amounts invoiced by the Attending School were for.
Parent’s Witness 2 testified that the daily cost of the program was $495.00 per day or a monthly tuition of $14,800.00 and that the school charges for when students were on home visits (T. P83, L10-15).
The invoiced amounts may include medication for treatments (T. P150-1), special charges for “incidents” or emergency situations, finance charges (1.5%), “Transportation, Medical and Incidental” charges (Exhibit P-H), or any other charges (not confirmed by the record), for which the Parent is not entitled to reimbursement.
Parent’s testimony was at best vague and without sufficient specificity that I am not able to calculate and award an exact amount to be paid by the DOE, especially as he confirmed that the amount reflected on the statement submitted into evidence may not have been the final figures (T. P148-151; P155-157). This problem was acknowledged by Parent’s representative, who indicated in Parent’s Closing Brief regarding Exhibit P-L that “It should be noted that [Student] graduated from [Attending School], which charges a daily rate, during the course of the hearing and exact amounts incurred were not available. As such, parent seeks funding for the actual out-of-pocket costs incurred for [Student’s] tuition and transportation upon submission of receipts” (Exhibit IHO-III-10). As such, I cannot arrive at a dollar amount owing given the lack of proof and my award is prepared accordingly.
I do not find that the aforesaid tuition rate ($495.00 per day) excessive or unreasonable, given what is offered by the Attending School as part of the program, for the 2021-2022 SY[54].
Parent is seeking tuition reimbursement and not tuition funding in the form of direct funding. Therefore, a case for direct funding based upon need is not required to be supported by the record.
Given my finding that the out-of-state placement was not warranted, due to the Student’s progress at the Previous School, and that the Parent only called for an emergency IEP meeting on September 7, 2021 (factoring in 60 days from then) (Exhibits P-D & -F), an equitable deduction of 30% has been taken into account, but also limiting the DOE’s liability should the reduced cost still exceed a reasonable cost based upon the parent’s choice to enroll the Student in an out-of-state school placement.
Transportation:
Parents sought, as part of the proposed solution “reimbursement for transportation so that he may accompany [Student] on the trip to [Attending School] (round-trip for parent) in addition to at least six family visits (educational and/or for purposes of family counseling) during the 2021-2022 school year” (Exhibit P-A-5). Given my finding that the out-of-state placement was not warranted, this relief is denied.
Student’s age and residency:
The Student was REDACTED at the start of the 2021-2022 SY but turned REDACTED during her stay at the Attending School, when she was then residing and working in the state of REDACTED.
Many state laws provide that the residence of a child is that of the child’s parents. However, residency in a different district may be established if the child is present in that district for any purpose other than obtaining FAPE. OSEP has taken the position that it will consider the home school district of a child as the district in which the parents reside unless state law determines residency on another basis[55].
If the child's parents divorce and one parent moves to another district, the new district may become responsible for a portion of the child's special education services. The relative responsibilities of each district will turn on state law and the terms of the parents' custody agreement[56].
At my invitation to the parties (T. P160, L2-13), Parent’s representative has satisfactorily addressed this issue in Parent’s Closing Brief (Exhibit IHO-III-10, & -11). Additionally, Parent testified in response to my clarification questions that: his address in New York City is their family's residence, mom and little sister live here, as well as a couple of dogs; that's the Student's permanent home address, as well; it hasn't changed since she was born; they do not own any other houses, or rent any other places; and that barring a vacation the Student’s address has been the Attending School or home for the entire time (T. P157-158).
Given that the Student’s “residence” at the Attending School was for the purpose of treatment and education, it was linked to the purpose of obtaining a FAPE as stated in Parent’s letter (Exhibit P-E). Her limited employment, which was linked to treatment and schooling, did not change that. Student moved back to her residence in New York after completing her schooling and did not continue the limited employment in that state. Accordingly, I do not find that a residency in a different district arose that would have resulted in a new district becoming responsible for any portion of the child's special education services.
Costs:
If the proposed relief is seeking an award for costs and fees as part of this decision (Exhibit P-A-5), only a court can determine who is entitled to attorney’s costs, fees, and expenses, and I would be exceeding the scope of my authority by determining that the Parent is the prevailing party entitled thereto.
Other than the relief set out in my Order below, I find that no basis and/or evidence in the record supports any additional relief.
ORDER
Based upon the above Findings of Fact, it is hereby:
- • ORDERED that, the DOE shall pay to the Parent, upon the submission of proof of the individual amounts invoiced and proof of those costs having been paid, for his tuition reimbursement claim for the 2021-2022 school year against the DOE for the Student’s attendance at the Attending School, the lesser of (i.e., lesser of 1.a. or 1.b.), subject to #2 and #3 of this Order:
- • The sum of i plus ii, minus iii:
- • $59, 251.50 (Fifty-Nine Thousand, Two Hundred and Fifty-One Dollars, Fifty Cents), being 70% multiplied by the Student’s stay at the Attending School but commencing from November 07, 2021, being the 61st day after the Parent’s 10-day notice[57] until April 27, 2022, being the date that the Student left the Attending School[58], multiplied by the daily rate of $495.00 per day (i.e., 171 days x $495.00 x 0.7 = $59, 251.50); plus
- • 70% of the cost of the related services for treatment of the Student’s Diagnoses – related services only (i.e., excluding the cost of any medications) from November 07, 2021 until April 27, 2022; less
- • Health insurance payments made to the Attending School, credited to the Parent’s account[59].
- • If the amount specified in #1.a above exceeds the cost of tuition and related services paid to the Previous School for the Student’s attendance at the Previous School during the 2020-2021 school year, the amount to be paid by the DOE to the Parent in terms of #1.a shall be reduced to equal 70% of the amount so paid by the Parent to the Previous School.
- • ORDERED FURTHER that, the maximum liability of the DOE, whether it is in terms of #1.a or #1.b of this Order, shall be capped at $63,770.00 (Sixty-Three Thousand, Seven Hundred and Seventy Dollars), being 70% of $91,110.00[60] (i.e., the total liability of the DOE for the Parent’s claims in the DPC for the 2021-2022 school year shall not exceed $63,770.00).
- • ORDERED FURTHER that, if for whatever reason the Parent does not provide the required documentary proof in terms of #1 (#1.a and/or #1.b) of this Order to the DOE, the Parent’s claims in the DPC for the 2021-2022 school year, and the DOE’s liability to pay the Parent, shall be limited to a maximum of $59, 251.50 (Fifty-Nine Thousand, Two Hundred and Fifty-One Dollars, Fifty Cents)[61].
SO ORDERED.
DATED: June 18, 2022
__H.A.C._(Signed Electronically)___
Impartial Hearing Officer
Harry A. Christodoulou
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 EVIDENCE
Exhibit
Title
Date
Pages
1
Due Process Complaint
09/22/2021
6
2
Ten Day Notice
08/25/2021
3
3
Individualized Education Program
04/12/2021
26
4
Prior Written Notice
04/26/2021
4
5
School Location Letter
04/26/2021
3
6
Prior Written Notice
08/11/2021
4
7
School Location Letter
08/11/2021
3
8
Social History Evaluation
04/21/2020
3
9
Psychoeducational Evaluation
02/14/2019
19
10
Level I Parent Vocational Interview
04/20/2020
3
11
Level I Student Vocational Interview
04/20/2020
2
12
Neuropsychological Evaluation
04/29/2020
14
13
Psychiatric Evaluation
12/10/2019
8
14
Teacher Report Letter
05/10/2020
1
15
Non-Public School (NPS) Tracking Documents
Various Dates
29
PARENT EVIDENCE
Exhibit
Title
Date
Pages
A.
Hearing Request
09/22/2021
5
B.
Psycho-Educational Evaluation
03/19/2021
13
C.
Ten Day Notice
08/25/2021
3
D.
Ten Day Notice Confirmation
08/25/2021
1
E.
Ten Day Notice
09/07/2020
3
F.
Ten Day Notice Confirmation
09/07/2021
1
G.
Letter from Psychiatrist
09/09/2021
1
H.
REDACTED Financial Agreement
09/12/2021
7
I.
REDACTED Treatment Center Discharge Summary
09/15/2021
5
J.
Letter of Support from Psychiatrist
09/15/2021
1
K.
Recommendation Letter from Psychiatric Social Worker
09/17/2021
1
L.
Attending School’s Statement No. REDACTED
03/11/2022
2
IHO EVIDENCE
Exhibit
Title
Date
Pages
IHO-I
IHO emails to District’s representative
04/11/2022
2
IHO-II
District’s representative’s email to IHO
04/11/2022
1
IHO-III
Parent’s Closing Brief
05/31/2022
12
APPENDIX
REDACTED
Footnotes
[1] U.S.C. § 1400 et seq.
[2] C.F.R. § 300 et seq.
[3] Educ. Law Art. 89 § 4404 et seq.
[4] NYCRR § Part 200.
[5] My reason for granting it was stated on the record and is not repeated in this decision.
[6] Exhibit DOE-15.
[7] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[8] U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].
[9] U.S.C. § 1415[f][3][E][i].
[10] See Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005]; G.M. v. Dry Creek Joint Elementary Sch. Dist., 595 F. App'x 698, 699 [9th Cir. 2014]; Jalloh v. Dist. of Columbia, 535 F. Supp. 2d 13, 19-20 [D.D.C. 2008]; and Sykes v. Dist. of Columbia, 518 F. Supp. 2d 261, 267 [D.D.C. 2007], as well as Application of a Student with a Disability, Appeal Nos. 20-167; 20-203 and 21-032.
[11] Rowley, 458 U.S. at 203.
[12] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.
[13] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[14] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[15] See Antignano v. Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11 [E.D.N.Y. Jan. 4, 2010].
[16] NYS Educ. Law § 4404(1)(c).
[17] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].
[18] In L.B., ex rel. E.B., v. New York City Dep’t of Educ. (122 LRP 8348) (U.S. District Court, Southern District of New York) (21-CV-1033 (VEC)) (03/08/22).
[19] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[20] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[21] Roland M. v. Concord Sch. Comm., 16 IDELR 1129 (1st Cir. 1990), reh'g en banc denied, 110 LRP 65965 (1st Cir. 09/14/90), cert. denied, 110 LRP 66026, 499 U.S. 912 (1991) ("An IEP is a snapshot, not a retrospective" and "must take into account what was objectively reasonable at the time the IEP was drafted.").
[22] See H.L. v. New York City Dep't of Educ., 2019 WL 181307 [S.D.N.Y. Jan. 11, 2019] [noting that "[i]n light of M.O., courts have found that parents have the right to obtain timely and relevant information regarding school placement, in order to evaluate whether the IEP can be implemented at the proposed location"]; F.B. v New York City Dep't of Educ., 2015 WL 5564446 [S.D.N.Y. Sept. 21, 2015] [finding that the parents "had at least a procedural right to inquire whether the proposed school location had the resources set forth in the IEP"]; V.S. v New York City Dep't of Educ., 25 F. Supp. 3d 295, 299-301 [E.D.N.Y. 2014] [finding that the "parent's right to meaningfully participate in the school selection process" should be considered rather than the "parent's right to determine the actual school selection"]; C.U. v. New York City Dep't of Educ., 2014 WL 2207997 [S.D.N.Y. May 27, 2014] [holding that "parents have the procedural right to evaluate the school assignment" and "acquire relevant information about" it].
[23] See Luo v. Baldwin Union Free Sch. Dist., 2013 WL 1182232 [E.D.N.Y. Mar. 21, 2013], aff'd, 556 Fed. App'x. 1, 2013 WL 6726899 [2d Cir Dec. 23, 2013]; J.L. v. City Sch. Dist. of New York, 2013 WL 625064 [S.D.N.Y. Feb. 20, 2013]; See also; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 191-92 [2d Cir. 2012] [finding that a district may select a specific public-school site without the advice of the parents]; F.L. v. New York City Dep't of Educ., 2012 WL 4891748 [S.D.N.Y. Oct. 16, 2012] [noting that parents are not procedurally entitled to participate in decisions regarding public school site selection].
[24] See M.O. and G.O. v. New York City Dep't of Educ., 65 IDELR 283 (2d Cir. 2015).
[25] See R.E. v. New York City Department of Education, 59 IDELR 241 (2d Cir. 2012).
[26] See, e.g., Jusino v. New York City Dep't of Educ., 70 IDELR 87 (2d Cir. 2017, unpublished) (Evidence that a student with a disability could use a set of model steps and an outdoor staircase to work on one of his physical therapy benchmarks undercut the parents' claim that a one-story school building was an inappropriate placement.); and M.E. and T.E. v. New York City Dep't of Educ., 71 IDELR 125 (S.D.N.Y. 2018) (Testimony that a public school possessed sensory equipment and had the ability to meet the sensory needs of a 5-year-old boy with autism undercut the parents' claim that the proposed placement was inappropriate.).
[27] See, e.g., D.C. v. New York City Dep't of Educ., 61 IDELR 25 (S.D.N.Y. 2013) (Because a public special education school was not clearly a seafood-free environment when the parent of a 10-year-old boy with a life-threatening seafood allergy toured the facility, the proposed placement amounted to a denial of FAPE.).
[28] H.L. v. New York City Dep't of Educ., 69 IDELR 60 (S.D.N.Y. 2016)
[29] It was clarified that it was not arranged as in having organized the job for the Student, but that the Attending School would try to find out what opportunities were available in the area and then they would bring the kids the application paper.
[30] Whilst there is information related to the Student’s diet mentioned in the IEP under Physical Development (Exhibit DOE-3-6), it is not in the context of a diagnosis that is being addressed in the IEP.
[31] This statement is made as of May 31, 2022.
[32] In re: Student with a Disability New York State Educational Agency (51 IDELR 295) 08-026 (108 LRP 34384) (2008).
[33] In re: Student with a Disability New York State Educational Agency.
[34] (20 U.S.C. § 1400[d][1][A]; Schaffer, 546 U.S. at 51; Rowley, 458 U.S. at 180-81; Frank G., 459 F.3d at 371).
[35] (20 U.S.C. § 1414[d][4][A]; 34 C.F.R. § 300.324[b][1][i]; see also Educ. Law § 4402[2]; 8 NYCRR 200.4[f].
[36] Rowley, 458 U.S. at 203.
[37] See Sanger v. Montgomery County Bd. of Educ., 23 IDELR 955 (D. Md. 1996) (holding that a student's actual suicide attempt by drug overdose did not require a district to pay for a residential placement when the placement was for emotional rather than educational reasons); Shaw v. Weast, 53 IDELR 313 (4th Cir. 2010, unpublished) (finding that despite a student's severe emotional impairments and history of suicide attempts, she did not require a residential placement to receive FAPE); and Fort Bend Indep. Sch. Dist. v. Douglas A., 65 IDELR 1 (5th Cir. 2015, unpublished) (holding that any educational progress made by a student who attempted suicide as a result of mental health treatment did not justify his residential placement).
[38] See Independent Sch. Dist. No. 284 v. A.C., 35 IDELR 59 (8th Cir. 2001) (holding that a residential program offered a student with an emotional disturbance the structured and supportive environment she needed to address her absenteeism and receive FAPE).
[39] See Child v. Sequoia Union High Sch. Dist., 559 IDELR 133 (N.D. Cal. 1987) (ruling that a student's truancy and drug use indicated social maladjustment and did not require residential placement); and Blickle v. St. Charles Cmty. Unit Sch. Dist. No. 303, 20 IDELR 167 (N.D. Ill. 1993) (finding that residential placement would be too restrictive for a student with a behavioral disorder and a history of drug abuse).
[40] See Edmonds School District, v. A.T., 71 IDELR 31 (W.D. Wash. 2017) (the student received psychological services, social work services, counseling, and therapeutic recreation while attending the residential school. Not only did those supports qualify as related services, but they were also necessary to address the student's truancy and make him available for learning).
[41] Luo v. Baldwin Union Free School District and Gallo, U.S. District Court, Eastern District of New York 12-CV-3073(JS)(AKT) January 12, 2016 (67 IDELR 15) quoting (The 2d U.S. Circuit Court of Appeals affirmed this decision at 69 IDELR 88).
[42] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007].
[43] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006].
[44] Gagliardo, 489 F.3d at 115.
[45] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[46] G.W. v. Rye City Sch. Dist., 2013 WL 1286154, at *23 [S.D.N.Y. March 29, 2013], aff'd 554 Fed. App'x 56 [2d Cir. Feb. 11, 2014]; S.F., 2011 WL 5419847, at *10.
[47] Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 [2d Cir., 2014]; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"].
[48] U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 192 Fed. App'x 62, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at 69 n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001].
[49] U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].
[50] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004].
[51] Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007].
[52] Greenland Sch. Dist., 358 F.3d at 160.
[53] C.L., 744 F.3d at 840.
[54] Florence County School District Four v. Carter, 20 IDELR 532 (U.S. 1993).
[55] Letter to Mills, 213 IDELR 139 (OSEP 1988); Craven County Bd. of Educ. v. Willoughby, 23 IDELR 869 (N.C. App. Ct. 1996) (explaining that state law defined "residency" as the actual place of abode, regardless of whether the situation was permanent); and DiStefano v. East Greenwich Sch. Dist., 62 IDELR 38 (R.I. Super. Ct. 2013) (holding that the student's father did not "reside" in the home he purchased within the district's borders).
[56] See, e.g., Cumberland Reg'l High Sch. Dist. Bd. of Educ. v. Freehold Reg'l High Sch. Dist. Bd. of Educ., 51 IDELR 62 (3d Cir. 2008, unpublished) (holding that the mother's move to another district following the parents' divorce and joint-custody agreement required that district to share financial responsibility for a residential placement that predated the divorce).
[57] Exhibit P-E & -F.
[58] T. P148, L20; P150, L10-12.
[59] T. P156, L23-25; P157, L4-14.
[60] T. P150, L6.
[61] The amount specified in #1.a.i of this Order.