New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 562932 - NYC: 218736

FINDINGS OF FACT AND DECISION

Case Number:

218736

Student’s Name:

[ Redacted ]

Date of Birth:

REDACTED

District:

REDACTED

Hearing Requested By:

Parents

Date of Hearing:

PHC - November 17, 2021.

The matter was additionally heard on December 6, 2021; January 12, 2022; and January 25, 2022.

Actual Record Closed Date:

Hearing Officer:

Andrea Cohen, Esq

[REDACTED] v. NYCDOE   IHO Andrea Cohen

Parents S’ Disclosure

[Redacted]

DOE Disclosure

[ Redacted ]

IHO Disclosure

Exhibit No.

Name

No. of

Pages

Date

Date

Admitted

Date

W/D

Exh. I

DOE’s Closing Brief

12

02/11/2022

02/11/2022

Exh. II

Petitioners’ Closing Brief

12

02/11/2022

02/11/2022

NEW YORK CITYL HEARING OFFICE

In the matter of

[Redacted] a minor, by and through the His Parents,

Petitioners,

- against –

New York City Department of Education

Respondent.

IHO

Final Decision and Order

Andrea R. Cohen

Impartial Hearing Officer

Greetings:

This Final Decision And Order in the matter of [Redacted] (“Student”) by and through his Parents against the New York City Department of Education (“Respondent” or “DOE”) is rendered upon consideration of Petitioner’s Due Process Complaint (“Complaint”); prior proceedings in this matter and the federal Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

Jurisdiction is based on the state and federal statutes cited above.

• • Procedural History and Background This matter was commenced on behalf of Student, a student with a disability, by and through his Parents, on October 4, 2021, by filing a Compliant against the DOE pursuant to the IDEA and New York Law. Student and his Parents will be referred to collectively as “Petitioners.” This Hearing Officer was appointed to preside over the matter on Oct 8, 2021.

On November 17, 2021, a Pre-Hearing Conference (“PHC”) was conducted by telephone. The matter was additionally heard on December 6, 2021; January 12, 2022; and January 25, 2022.

All hearings were conducted remotely pursuant to Covid-19 protocols.

Both Parties submitted Closing Statements/Briefs on February 11, 2022.

• • Petitioners’ Position and Relief Sought For the 2020/2021 school year, the DOE failed to provide Student with a FAPE in that it failed to develop and provide an IEP for Student. Because of the DOE’s failure, Parents unilaterally enrolled Student as a boarding student in [Redacted]. (“Private School” or “PS”). Private School provides Student with an appropriate education.

Parent seeks an Order directing the DOE to fund the costs relating to Student’s tuition at PS for the 2020/2021 school year. Parent is not seeking public funding for costs relating to Student’s boarding at PS. Specifically, the proposed resolution seeks funding solely for the academic and Learning Support Center portions of the tuition, and not the residential portion of the tuition. Ex. A-2; T. 32-33.

• • The Doe’s Position and Relief Sought The DOE conceded it failed to provide a FAPE during the 2020/2021 school year. Tr. 63.

In its February 11, 2021 Closing Brief (IHO Ex. I), the DOE, for the first, time asserts the argument that Parents are barred from reimbursement because student is enrolled as a boarding student; that there is no showing that Student requires residential placement; and that therefore PS is not an appropriate placement for Student (Ex. I, p.3-4).

The DOE also asserts that Parent has failed to show that PS can provide an appropriate education to Student (Ex. I, p.3).

Lastly, the DOE argues that any relief awarded must (a) be limited by the terms of the contract and to services and costs related to the academic tuition of the student (Ex. I, P. 9-10); and (b) be reduced by the $20,000 in financial aid provided to the parent by PS (Exh. I, p. 11).

• • Issues

Whether or not:

• • The DOE provided Student with a FAPE for the 2021/2022 school year;
• • The Parent’s unilateral placement would provide Student with an appropriate education;
• • Equitable considerations support a reduction of any remedy awarded.
• • Witnesses DOE- None

PETITIONER -

[Redacted], Director of Learning Center at PS (“LCDirector”), testified by telephone on January 12, 2022; and January 25, 2022. Her testimony was recorded and is set forth in the transcript on pages 91-148 (“TR. 91-148”). LCDirector’s testimony as to her education and professional experience showed her to have the appropriate experience, expertise and competency for testifying in this matter. TR 91-93. LCDirector testified credibly and knowledgeably as to the PS and as to Petitioner’s records, educational needs and educational program, and was responsive to questions and able to provide additional details and clarification when asked.

[Redacted], Parent TR. 156- 177. the Parent of Petitioner. She testified in person on January 12, 2022. Her testimony was recorded and is set forth in the transcript on pages 156-177. Parent testified credibly and knowledgeably as to her familiarity with Petitioner and his program and performance in school; her participation in his education; and her familiarity and agreement with the reports and evaluations submitted into evidence by both Parties.

• • exhibits

DOE

Exhibits 3-4, entered into evidence on January 12, 2022.

Petitioner

Exhibits A-E, G-I, entered into evidence on December 6, 2021;

Exhibits F, J-L, entered into evidence on January 12, 2022.

IHO

Exhibits I-II entered into evidence on February 11, 2022.

• • Statement of Law
• • FAPE
• • FAPE - GENERALLY

The Individuals with Disabilities Education Act (“IDEA”) provides that a child with a disability is entitled to a free and appropriate public education (“FAPE”), and ensures that included special education and related services are designed to meet “their unique needs to prepare the child for further education, employment, and independent living.” ^[1] The FAPE providing this individualization must also conform to an individualized education program (“IEP”). ^[2]

The DOE bore the burden of production and persuasion to establish that it provided the Student with a FAPE for all of the school years at issue, as well as all other issues alleged in the DPC, except for the appropriateness of the private school, to which the Parent bore the burden of proof. ^[3]

A student is provided a FAPE when (a) the board of education complies with the IDEA’s procedural requirements, and (b) provides an IEP that is: “’likely to produce progress, not regression’ and if the IEP affords the student with an opportunity greater than ‘mere trivial advancement.’” ^[4]; is substantively appropriate – i.e., it is reasonably calculated to enable the child to receive educational benefits.^[5]

The IEP must be reviewed periodically, but not less than annually, to determine whether the annual goals for the child are being achieved. ^[6] The IEP must be revised to address: 1) any lack of expected progress toward the annual goals and in the general education curriculum, if appropriate; 2) the results of any reevaluation; 3) information about the child provided to, or by, the parents; the child’s anticipated needs; or other matters. ^[7]

• • FAPE - EVALUATIONS

An evaluation means procedures used in accordance with 34 C.F.R. §§ 300.304 through 300.311 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs.^[8]

In conducting the evaluation, the district must use a variety of tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the parent, to determine whether the child is eligible and, if so, the content of the child’s IEP. ^[9] The evaluation must be sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category. ^[10]

A reevaluation must occur at least once every three years, unless the parent and the LEA agree that a reevaluation is unnecessary. ^[11] A reevaluation of a child with a disability must occur when conditions warrant or if the parent or teacher requests a reevaluation. ^[12]

• • RELIEF/REMEDIES
• • REMEDIES - GENERALLY

In any action brought under the IDEA, the trier of fact “shall grant such relief as the court determines is appropriate.” ^[13] The relief must be appropriate in light of the purpose of the Act. A court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies. ^[14]

“In enacting the IDEA, Congress did not intend to create a right without a remedy.” ^[15] “Courts retain broad discretion in fashioning an award, restrained only by the Supreme Court’s directive that ‘the relief is to be “appropriate” in light of the purpose of the Act.’” ^[16]

OSEP advises that, “based upon the facts and circumstances of each individual case, an impartial hearing officer has the authority to grant any relief he/she deems necessary, inclusive of compensatory education, to ensure that a child receives the FAPE to which he/she is entitled.” ^[17] New York law provides that a state-approved nonpublic school is a permissible placement for a school district to make on a student’s IEP upon a showing of, inter alia, detailed evidence of the student's lack of progress in previous less restrictive programs and placements. ^[18]

• • TUITION REIMBURSEMENT

The United States Supreme Court established a three pronged test to determine whether school district may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent: (1) were the services offered by the board of education inadequate or inappropriate, (2) are the services selected by the parent appropriate, and (3) do equitable considerations support the parent's claim. ^[19]

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate.” ^[20]

A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). Parents “are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education.” Frank G., 459 F.3d at 364 (citing 20 U.S.C. § 1401(9)); see also Carter, 510 U.S. at 12-14. An appropriate private placement need not meet state education standards or provide certified special education teachers or prepare its own IEP for the student. (see Frank G., 459 F.3d at 364; Carter, 510 U.S. at 13 (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). See Application of a Student with a Disability, Appeal No. 11-041).

In order to meet this burden, parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G. v. Bd. of Educ., 459 F.3d 356,364 [2d Cir. 2006]).

When determining whether the parents’ unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefit,” ^[21] i.e., whether it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” ^[22] In the Second Circuit, no single factor is dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Rather, the totality of circumstances must be reviewed and assessed in determining whether a placement reasonably serves a child’s individual needs. ^[23]

• • Findings of Facts, and Conclusions of law and Discussion The findings and conclusions set forth below are based upon my review and analysis of the testimony and exhibits presented and the relevant law.

Background

Student is known to the DOE as a child with a Learning Disability. This matter relates to the 2020/2021 school year, during which Student was in ninth grade. The DOE last held an IEP meeting in July of 2018. Parent received no IEP, Prior Written Notice (PWN) or School Location Letter (SLL) for the 2020/2021 school year. TR. 164. Parent unilaterally enrolled Student in PS, in April 2021 to ensure he would have an actual spot in an actual classroom for the 2020/2021 school year. TR. 167. Additionally, prior to the start of the school year, Parent informed the DOE in writing that, for the 2020/2021 school year, an IEP meeting had not been held for Student and that she had not received a placement offer. Ex. B-1; Tr. 164-165. Parent received no response to this letter. Tr. 165. Accordingly, Student attended PS for the 2020/2021 school year and Parent filed this complaint, seeking funding for the academic and learning support center portions of the tuition, and not the residential portion of the tuition. Ex. A-2; Tr. 32-33.

I FIND that, for the 2020/2021 School Year, the DOE Failed to Provide Petitioner With a FAPE in that the DOE Failed to Provide an Appropriate Educational Plan, an Appropriate Placement and Appropriate Services to Petitioner.

The Individuals with Disabilities Education Act (“IDEA”) provides that a child with a disability is entitled to a free and appropriate public education (“FAPE”), and ensures that included special education and related services are designed to meet “their unique needs to prepare the child for further education, employment, and independent living.” ^[24] The FAPE providing this individualization must also conform to an individualized education program (“IEP”). ^[25] The IEP must be reviewed periodically, but not less than annually, to determine whether the annual goals for the child are being achieved. ^[26]

The DOE bore the burden of production and persuasion to establish that it provided the Student with a FAPE for all of the school years at issue. ^[27]

Here the DOE concedes it did not provide a FAPE to Student for the 2020/2021 school year. Tr. 63. It does not challenge any of the Parent’s allegations of its failures to provide an IEP, a PWN or a SLL. The DOE does not challenge Parent’s assertion that, prior to the commencement of the school year, she advised the DOE, in writing, of its failures and her intent to enroll Student at PS. Ex. B-1; Tr. 164-165. Similarly, the DOE does not claim to have responded to such notice and does not challenge Parents assertion that she received no response.

I Find the record clearly supports Petitioners’ assertion that the DOE failed to provide Student with a FAPE for the 2020/2021 school year.

I FIND That Petitioners Have Satisfied their Burden of Showing PS to be an Appropriate Placement for Petitioner for the 2020/2021 School Year.

Neither Party submitted documents relating to Student’s levels of performance prior to the September, 2020, commencement of the school year at issue. The DOE submitted, and, in its brief in part relies upon, a March 2021 neuropsychological evaluation (“March 2021 Evaluation” or “Evaluation”) (DOE Ex. 4, pages 1-25). I have reviewed this document and find it to be helpful in that, in his 25-page report, the Neuropsychologist (“Evaluator”) specified the findings set forth in several of Student’s prior evaluations and identified many of his educational needs as long standing and continuing.

Petitioners’ first witness, Director of Learning Center at PRS (“LCDirector”), provided clear and credible testimony showing her to be familiar with PS, its staff’s credentials and continuing training, and with Student, his prior relevant records, and his current program and performance at PS. Tr. 91-148. Additionally, Petitioners submitted Student’s ninth grade report cards from PRS which set forth Student’s educational needs, the strategies developed to meet those needs, and Student’s progress. Ex.’s J, K, and L.

Student’s Parent also testified on behalf of Petitioners. She provided clear credible testimony showing her to be familiar with Student’s strengths, struggles, and school program and performance.

I have reviewed these documents and testimony and find that they strongly support Petitioners’ assertion that the PS program developed for and provided to Student well matches his unique needs.

2021 Evaluation

As noted in the March 2021 Evaluation, Student “underwent neuropsychological testing in the fifth grade. Subsequent diagnostic conclusions included Attention-Deficit/Hyperactivity Disorder, inattentive presentation, as well as Language Disorder, Developmental Coordination Disorder, and Specific Learning Disorder with Impairment in Reading and Written Expression. The examiner felt that [Student] was not making progress in his ICT classroom and recommended placement in a fully specialized school.” DOE Ex. 4, p.2.

As also noted in the March 2021 Evaluation, “[a]nother evaluation was conducted in 2018 at the REDACTED when [Student] was REDACTED. Overall cognitive development was within the low average range (FSIQ=87) with average to low average performances across the five areas that comprise that assessment. Significant delays were noted in areas of reading, writing, attention, and executive functioning. He appeared well adjusted from a social, emotional, and behavioral perspective. Diagnoses included ADHD inattentive presentation, Language Disorder, and Specific Learning Disorder with impairment in reading.” DOE Ex. 4, p.2.

Evaluator also noted that Student continued with speech-language services with an independent provider through January 2021. Ex. 4, p.3

Evaluator determined Student’s current “[d]iagnoses remain consistent with his previous evaluation and include the inattentive presentation of Attention-Deficit/Hyperactivity Disorder, Language Disorder, Specific Learning Disorder with impairments in reading and writing, and Developmental Coordination Disorder.” Ex.4, p.10.

The evaluator set forth Student’s current academic performance levels (Ex.4, in pages 8-10), as paraphrased below:

With regard to academic skills, Student displayed low average abilities in the domain of reading (19th percentile to 27th percentile). Student struggled to read passages aloud with appropriate fluency, speed, and accuracy, and struggled to comprehend the content he read. In all respects, Student has made a great deal of progress since his last neuropsychological evaluation, even if there is still work to be done. He has gained ground in relation to developmental expectations in relation to word recognition, decoding, and comprehension.

Student demonstrated low average abilities on measures of written expression (6th -13th percentile). His written work featured suitable content, but lacked pertinent spelling, grammar, and transition words. Additionally, Student required a substantial amount of time to produce written work (6th percentile); For instance, he was allotted 10 minutes to compose his essay, but wrote only 4 sentences. … Student made substantial progress with writing, as he was now able to complete tasks he could not complete in his last evaluation. Gains have been made with sentence composition.

Student’s mathematical abilities were found to vary widely, from the 7th -79th percentile. He displayed a solid grasp of probability, graphs, and number patterns, and an average ability to conduct an assortment of calculations, but struggled to solve word problems. He showed a strong ability to recall math facts and solve multiplication problems. Particular gains since his last evaluation are seen in his knowledge of calculation procedures and math fact recall.

(Ex.4, in pages 8-10).

The Evaluator found Student continued to show variable development among his academic skills, and, in general, to have made progress in many academic areas, “making up ground towards age-appropriate developmental expectations, yet there is still a lot of work to be done.” Ex. 4 p.10

Evaluator concluded that:

“[Student] continues to require a small school that supports different learning styles with small classes and individualized special education support and instruction that is tailored to [Student]’s specific deficits. His educational needs are two-fold. First, he continues to require individualized, direct instruction and remediation to continue to build specific academic, language, and executive functioning skills on a daily basis. This also includes applying such skills towards completing his schoolwork, which requires one-on-one intervention. Second, he requires support within the context of the classroom in order to address the impact of inattention, learning, and language challenges on his capacity to learn and complete classroom assignments. Within the context of a small, special education classroom environment, along with more individualized supports, [Student] can receive the frequency of support he requires in order to learn and make progress, including modeling, repetition, corrective feedback, and implementation of special strategies. [Student] has always presented as a well-adjusted student from a social, emotional, and behavioral perspective and hence [Student] should not be placed among students with challenges in these areas. [Student] would not be appropriately placed in an ICT classroom, as this is too large and fails to provide sufficient curricular modification and individualized support. A 15:1 classroom is also too large for [Student] and does not provide the low student to teacher ratio that he needs.”

Ex. 4, p. 10-11.

Evaluator set forth detailed recommendations in several areas, including executive functioning skills (Ex. 4, p.11), all areas of ELA skills (id. p.11, 12), memory (id. p.11), OT (id. p.11), and testing accommodations (id. p.12). Ex. 4, pages 10-12.

Significantly, Evaluator provided an eight-page, detailed section of Specific Strategies to Support Student, specifically designed for this Student. (Ex4, pages18-25). As noted above, Evaluator clearly called for the need for small, structured environment with educational material to be presented in very organized, broken-down elements, in multiple modalities, with frequent repetitions, breaks and reviews. Evaluator repeatedly noted that strategies addressing Student’s memory deficits and struggles with ELA skills and organization skills must be integrated into all areas of learning. Evaluator also noted the importance of utilizing Student’s interests to encourage motivation, organization, and memory skills.

PRS Evidence and Testimony

LCDirector of the PRS testified on behalf of Petitioners. She testified that PS is a small residential college-preparatory school in REDACTED, which educates approximately 100 students ranging from 9th-12th grade. Tr. 94. It provides small classes of approximately 8-12 students. Ex. I-1. The school has a designated learning center called the REDACTED, (“Learning Support Center”) which individualizes and modifies instruction for the students identified as requiring specialized support in order to learn. Ex.I, 1-2. Such students may be enrolled in the Learning Center’s Strategies programs. Ex. I-2.

LCDirector’s testimony shows the staff at PS to have the qualifications and ongoing training opportunities needed to provide Student with an appropriate education. Tr. 91- 93, 94, 125.

LCDirector testified that day and boarding students have the same program and the same access to after school, supervised study hall. Tr. 126. Additionally, she testified that PS awards students with diplomas recognized by the state of Connecticut. Tr. 123

Based on PS’s review of Student’s educational needs, Student was placed in a class comprised of Strategies and non-strategies students. Tr. 114-115. Additionally, he was enrolled in the Strategies program of the Learning Support Center, which provided him with daily, 1:1 after school tutoring with a specifically assigned Learning Support tutor (“Tutor”). Ex. I-2. During these daily sessions, Student received academic support for his content classes, previewing and reviewing his homework, and support with organization and study skills. I-2.

LCDirector testified that she knows Student individually and in his classes. She noted that Student’s daily after school Tutor is in the office next to LCDirector’s and that she has substituted for his tutor for the 40-minute tutoring sessions on approximately four occasions. Tr. 110. She testified that she has covered Student’s gym class and has been on dorm duty, ensuring Student is focusing on his schoolwork Tr. 111. Additionally, LCDirector testified as to her familiarity with Student’s educational program and school performance: specifically, she meets weekly with his teachers (Tr.96), and his teachers send frequent reports to her and his Tutor, which they continually review to track his progress and revise to address his difficulties. Tr. 97-98.

LCDirector identified and emphasized the same challenges and strategies noted by Evaluator. For example, she noted Student’s weaknesses in all aspects of executive functioning, his global ELA deficits in reading comprehension, writing, and word knowledge, and Student’s need for help organizing and planning, repetition, breaking down info, and breaks and utilizing Student’s favorite subject, History. Tr. 96; 98-99; 101-102. (Parent provided similar testimony. Tr. 157.) The school also implemented many of the Evaluator’s suggested accommodations. Tr. 101-102, Ex. I-1.

LCDirector testified that Student was intentionally matched with a Learning Support Strategies I Tutor (“Tutor”) certified in Orton-Gillingham, an ELA program that was integrated into all his sessions in all subjects to help him with reading fluency, comprehension and word and language use. Tr. 105, 116, 124, 147. Tutor also used the “Empower Writing” program and used “brain frames” to organize and compare and contrast essays for English. Ex. J-2. Tutor reviewed class lessons with Student to ensure that he understood what was being taught in class. T. 99. Tutor also had access to Student’s content classes assignments through Google Classroom so she could review his work and tailor the tutoring sessions to align with his needs. T. 98. Tutor broke down Student’s assignments into more manageable chunks and worked with him on efficient ways to study and organize his work. T. 98; (see also, Student’s Report Card Ex. J-2). Each session began with addressing Student’s organizational needs for homework and helping him plan out his day to accomplish his daily goals. Ex. I-2. Tr. 98-99.

Parent testified that as to the significant progress Student made at PS in all areas noted in the Evaluation and in LCDirector’s testimony. Tr. 168-171. She testified that she attributed his progress to specific elements of the program provided to him by PRS; the same elements noted by Evaluator, LCDirector, and in Student’s report cards. Tr. 171.

Report Cards

Petitioners produced Student’s the three report cards issued by PS during Student’s ninth grade year. Ex.’s J, K, and L. In these report cards, Student’s teachers addressed the same needs and strategies highlighted by Evaluator and addressed in the testimony of LCDirector and Parent. For example, in the beginning of the year, “he struggled a bit without his computer but as soon as he received it, he hit the ground running.” Ex J-2. During the winter semester, “he was quite proud of himself when he could see his hard work paying off. By the end of the term, he was even advocating for himself and comfortably writing emails to his teachers.” K-2. Each day, “we went over his Google Classrooms and emails and reviewed his work. Some days, he would read his History to me or read his English book, Feed, together and check for comprehension.” L-2.

The end of year report card specifies Student’s challenges, program/strategies, and progress in ELA and, significantly, noted Student was taking Spanish and making progressing in this foreign language.

“English: It is clear that [Student] needed help focusing and doing his work, and understanding the material. With the help of his strategies teacher or myself sitting next to him and pushing him along he could produce written work, however, when left to work alone it was challenging for him to produce especially if it was a writing activity. He does not have a solid base of English yet, he lacks structure in his writing and basic grammar concepts. He preferred novels over short stories and did well with FEED. He did fairly well understanding the plot and the characters. He was able to discuss them but to think and connect the text to the outside world was challenging. [Student] is still learning to ask for help and to accept it. If he is willing to take the support offered, he would see his ideas develop into great paragraphs and his grammar mistakes would be found and explained. It is clear that [Student] is intelligent and if pushed can produce good work ….” Ex. L.

“[Student] did very well in Spanish 1 this term. He always arrived to class prepared by coming with completed homework, began taking notes, participating, and asking questions. Since the beginning of the year, I have heard [Student] a bit more in class, however, I would like to hear him conversing in Spanish more next year. If he did not understand a form of grammar we were covering, he would always ask for help. [Student] did very well in his end-of-term presentation over places he would like to visit and showed good use of vocabulary and grammar learned throughout the year.” Ex. L-4

I find the evidence above strongly supports Petitioners’ assertion that PS well knows Student, his challenges, interests and strengths and has provided him with an individualized education plan that was likely to enable him to access and benefit from his education.

In its closing brief, the DOE for the first time asserts the argument that Parents are barred from reimbursement because student is enrolled as a boarding student; that there is no showing that Student requires residential placement; and that therefore PS is not an appropriate placement for Student (Ex. I, p.3-4). The DOE argues that “[a]s no objective evidence has been presented to demonstrate the Student requires a residential placement, and Student should be educated at home so the Student can receive support from their family, [PS] is not appropriate for the Student. As such the relief requested must be denied.” Ex.I, p4. The DOE bases its position on the decision of the Second Circuit in Walczak v. Florida Union Free School Dist., 142 F. 3d 119, 132-34 (2d Cir. 1998) and on an SRO decision, Application of the Board of Education of the Katanoh-Lewisboro Union Free School District, 19-012, at 4.

In each of these matters, a parent unilaterally placed a student at a residential school and sought tuition reimbursement. While it is true that parents were unsuccessful in both matters, the DOE omits mention of the significant differences between the issues to be decided and the related underlying facts shared by both of those cases, compared to the facts and issues in the matter at hand. In each of the matters cited by the DOE, the local education agency (“LEA”) had provided to the student an IEP, and, in each case, the IEP recommended a day school placement. In each case, the parent disagreed with the IEP, asserted that the student required residential placement, and enrolled the student in a residential school. In each case, parent filed a claim seeking a finding that the IEP’s recommended day-school placement failed provide a FAPE to their child in that their child required a residential placement in order to access and benefit from his education. In each case, parent sought public funding for room, board, and tuition at a residential school. The Second Circuit and the SRO examined the IEP’s and the documents relied upon to create them, and found that the preponderance of the evidence established the adequacy of the LEA’s proposed day-school placement.

In the case at hand, the DOE failed to provide any IEP, failed to make any recommendation, and failed to locate a school for Student to attend this school year. There is no IEP for the court to examine for appropriateness. Additionally, the need for residential placement is not an issue in this case; No party has argued or even addressed the relative appropriateness of day or residential placement. I also note that there is no evidence that PS provides the type of residential facility, staff or services needed to serve students who do require residential placement in order to be provided with a FAPE. Testimony and evidence was provided showing that day and boarding students at PS receive the same education, that students with special educational needs are provided with Learning Supports through the Strategies program, and that Student was in a class comprised of students with and without Strategies support.

The DOE bases its argument on the sole factor that Student boards at PS.

As the DOE well knows,^[28] in the Second Circuit no single factor is dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Rather, the totality of circumstances must be reviewed and assessed in determining whether a placement reasonably serves a child’s individual needs. Moreover, and as the DOE well knows, parents are not barred from reimbursement where they fail to select a program approved by the State, or where a private school they choose does not meet the IDEA definition of a free appropriate public education, or provide certified special education teachers. Finally, as the DOE well knows, when determining whether the parents’ unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefit,” i.e., whether it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.” The DOE provided no evidence to rebut Petitioners well supported argument that PS provides to Student an education specifically designed to meet his unique needs and is reasonably calculated to enable Student to receive educational benefit. While the DOE has highlighted the salient elements the Second Circuit examined in determining that the evidence established the adequacy of the LEA’s proposed day-school placement, I find that the DOE has not shown how the facts of this case warrant a finding that Student’s placement at PS is inappropriate or that Parent is barred from recovery.

Next, the DOE argues that “Parent merely presented general information about the services offered at PS.” IHO Ex. I, p.4-7. Petitioners’ lengthy, detailed testimony and evidence noted above shows this argument to be without merit.

Last, the DOE argues that PS does not provide the occupational therapy and speech therapy called for in the March 2021 Evaluation, and therefore fails to provide an appropriate education. First I note, and as the DOE well knows, the Second Circuit has determined that in order to meet their burden, parents need not show that the placement provides every special service necessary to maximize the student's potential.^[29] Secondly, I disagree with the assertion that Student’s S/L and OT needs are not being addressed. Student has been matched with a daily Tutor specifically trained and certified in providing an education to students with language arts challenges and deficits and that the evidence shows that strategies addressing Student’s ELA issues are fully integrated into every aspect of his education at PS. Similarly, the March 2021 Evaluator recommended OT in part, to assist in Student’s current keyboarding skills. As noted above, Student has become accustomed to and adept at using his computer; he now uses it to regularly communicate with his teachers.

I FIND that any Remedy Awarded is to be Limited to the Costs Relating to the Education of the Student.

Petitioners submitted Exhibit F, a one-page affidavit with the notarized signature of PS’s Chief Financial Officer attesting that:

To determine the total of costs to be considered “tuition,” I look to E.M. v. New York City Dept. of Educ., (2d Cir. 2014), where the Second Circuit highlighted the role of equitable considerations in making such determinations.^[30] I also reviewed the SRO decision limiting reimbursement to the cost of the student's academic tuition and only such other fees that cover additional costs for the classes the student participated in.^[31]

Under the facts at hand, I find such costs to be comprised of Tuition ($39,000), and costs associated with the lessens provided by Tutor through the Learning Support Center Strategies I program ($11,500). The Learning Support includes the daily classes with Tutor. Roughly estimating 180 school days in a school year brings these charges to approximately $64.00 per school day. I find this to be within reason and is to be included as a cost relating to Student’s educational tuition.

In consideration of the above, I find that the costs of educating Student in classes at PS for the 2020/2021 school year total $50,500.

I FIND that Equitable Considerations Require any Remedy Awarded to be Reduced by Amount Provided to Parent by PS as Financial Aid.

A party seeking to have public funds directed towards reimbursing a private school education must show that they have a contractual obligation to pay for the services. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 449-461 (2d Cir. 2014).

Again, applying equitable considerations, and, again, citing E.M. where the court identified the equitable obligation of parents to avail themselves of need-based scholarships or other financial aid from a private school,^[32] I find the financial aid granted to Parents by PS for Student’s attendance in PS ($20,000) is to be applied to reduce the costs of educating Student in classes at PS, as identified above ($50,500). Equitable considerations favor applying financial aid received from the school to reduce the costs of the classroom education provided by the school.

Accordingly, I find the DOE to be responsible for a total of $30,500. Parents do not seek reimbursement for Students room and Board. No argument has been made, and no evidence has been produced showing an appropriate education for Student required a residential placement. The decision to enroll Student in a residential program was made by Parents and costs relating to that element are and to be borne, in total, by Parents. e

FINAL ORDER:

The DOE is Ordered to reimburse Parent and/or make direct payment to PS for any such tuition costs that remain outstanding, up to a total of $30,500, incurred in association with Petitioner’s education at PS for the 2020/2021school year.

The DOE is Ordered, upon receipt of billing statements from PS, or upon receipt of proof of payment by petitioner, to rapidly complete all administrative/bookkeeping procedures and issue such payment and/or reimbursement check.

This is a FINAL ORDER; this matter is resolved and is to be closed.

Dated this 27th day of February 2022

By: Hearing Officer Andrea R. Cohen, Esq.

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.

(NYSED 07/09/2020)

Footnotes

[1] U.S.C. § 1400(d)(1)(A).

[2] C.F.R. § 300.320.

[3] N.Y. Educ. Law §4404(1)(c). M.H. v. New York City Dept. of Educ., 685 F.3d 217, 225 (2d. Cir. 2012).

[4] Walczak, 142 F.3d at 130 (quotations omitted). Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005)

[5] Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982); Cerra v. Pawling Cent. Sch. Dist., 427 F.3f 186, 192 (2d Cir. 2005); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting Rowley, 458 U.S. 176, 207).

[6] C.F.R. § 300.324(b)(1)(i); 8 NYCRR § 200.4(f).

[7] C.F.R. § 300.324(b)(1)(ii); 8 NYCRR § 200.4(f)(2).

[8] C.F.R. § 300.15; see also 8 NYCRR § 200.1(aa).

[9] C.F.R. §300.304(b)(1); 8 NYCRR §200.4(b)(1).

[10] C.F.R. § 300.304© (6); 8 NYCRR § 200.4(b)(6)(ix).

[11] 34 C.F.R. § 300.303(b)(2); 8 NYCRR §200.4(b)(4).

[12] C.F.R. §300.303(a); 8 NYCRR §200.4(b)(4).

[13] U.S.C. § 1415(i)(2)(C)(iii).

[14] Doe v. E. Lyme Bd. of Educ., 790 F.3d 440 (2d Cir. 2015) (internal citations omitted).

[15] Streck v. Bd. of Educ. of the E. Greenbush Cent. Sch. Dist., 408 F. App’x 411, 415 (2d Cir. 2010).

[16] L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 125 (2d Cir. 2016).

[17] (Letter to Kohn, 17 IDELR 522 (OSEP 1991). See also Letter to Riffel, 34 IDELR 292 (OSEP 2000) (discussing a hearing officer’s authority to grant compensatory education services).

[18] N.Y.C.R.R. § 200.6(j)(iii)(c).

[19] (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]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. Sept. 28, 2005]).

[20] (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 at 112 [2d Cir. 2007]).

[21] (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112),

[22] (Gagliardo, 489 F.3d at 365).

[23] (Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 364-65).

[24] U.S.C. § 1400(d)(1)(A).

[25] C.F.R. § 300.320.

[26] C.F.R. § 300.324(b)(1)(i); 8 NYCRR § 200.4(f).

[27] N.Y. Educ. Law §4404(1)(c). M.H. v. New York City Dept. of Educ., 685 F.3d 217, 225 (2d. Cir. 2012).

[28] and as set forth with citations above in Section VII. B. 2., STATEMENT OF LAW: Tuition Reimbursement; and in the DOE’s Brief, Ex. I, p.2-3.

[29] Frank G. v. Bd. of Educ., 459 F.3d 356,364 [2d Cir. 2006].

[30] “Of course, that plaintiff has standing to pursue her claim does not mean that she is entitled to the relief she seeks. As we have noted, even if a plaintiff satisfies the Burlington–Carter prerequisites, “because the authority to grant reimbursement [under the IDEA] is discretionary, ‘equitable considerations... are relevant in fashioning relief.’” Frank G.,459 F.3d at 363–64 (quoting Burlington,471 U.S. at 374, 105 S.Ct. 1996); see also Forest Grove Sch. Dist. v. T.A.,557 U.S. 230, 246–47, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009) (stating that, even if a plaintiff establishes a right to reimbursement under the IDEA, “courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant”).” E.M. v. N.Y.C. Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014)

[31] Application of the New York City Dep’t of Educ., Appeal No. 10-101, 22-23.

[32] E.M. at p. 461.