New York City Department of Education, Impartial Hearing Decision

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

SPECIAL EDUCATION HEARINGS DIVISION

In the matter of Student, a Minor, by her/his Parent(s),
against
THE NEW YORK CITY DEPARTMENT OF EDUCATION

Impartial Hearing No. 219838

FINDINGS OF FACT AND

DECISION

Virginia Tillyard

Impartial Hearing Officer

BACKGROUND AND POSITION OF THE PARTIES

Parents, through counsel, filed a due process complaint (the “DPC”),^[1] under the Individuals with Disabilities Education Act, 20 U.S.C. section 1400 ff and Article 89 of the New York State Education Law, against the New York City Department of Education (the “DOE”) on October 19, 2021, alleging that the DOE denied Student a free appropriate public education (“FAPE”) for the 2021-22 school year.

In the DPC the Parents allege, among other things, substantive and procedural violations in connection with the development of Student’s IEP developed on March 4, 2021 (the “2021 IEP”). Parents also allege the DOE failed to hold an annual review meeting for the 2021-22 school year. As remedies in the DPC, Parents request reimbursement of tuition and transportation for Student’s attendance at the Private School for the 2021-22 school years. As more fully discussed below, I find that (a) the DOE failed to meet its burden of showing that it offered Student a FAPE for the 2021-22 school year, (b) the Private School provides Student educational instruction specifically designed to meet Student’s unique needs, and (c) the equities support the Parent’s requested relief.

JURISDICTION

PROCEDURAL HISTORY

This case was first assigned to a different impartial hearing officer, who held several status conferences and extended the compliance date several times, but did not hold a merits hearing. Pendency was agreed effective as of February 25, 2022 based on an unappealed findings of fact and decision in case no. 201895. I was appointed as Impartial Hearing Officer to this case on May 31, 2023 after the previous hearing officer’s appointment had been rescinded. The compliance date was extended at parties’ request so that the Parents could arrange for a witness from the Private School to give testimony, and so that parties could try and settle this case. Settlement was unsuccessful and the Parents were not able to arrange for their proposed witness from the Private School to testify. That witness, although employed by the Private School for the 2021-22 school year, was no longer employed at the Private School at the time of hearing. The hearing therefore went ahead and Parents presented their case based on documentary evidence and the testimony of Student’s father, but without any testimony from a Private School witness.

At hearing, the Parents submitted an exhibit packet, including the affidavit testimony of Student’s father. All Parents’ exhibits were admitted. The DOE did not submit any exhibits. The Parents presented the affidavit testimony of Student’s father. The DOE’s attorney cross-examined him. The Parents made an oral opening statement and both parties made an oral closing. ^[2]

LEGAL FRAMEWORK

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a free appropriate public education (“FAPE”), 8 NYCRR § 200.5(j)(4)(i). Under the IDEA and New York law, where there is procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE.^[3]

A board of education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate (2) the services selected by the parent were appropriate and (3) equitable considerations support the parent's claim. 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, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 (Oct. 15, 2007). These three conditions constitute the Burlington/Carter test in a tuition reimbursement case.

Burden

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 (NYS Educ. Law § 4404(1)(c)). The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).

FINDINGS OF FACT AND DECISION

(I) impeded the child's right to a free appropriate public education; (II) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a free appropriate public education to the parents' child; or (III) caused a deprivation of educational benefits. Student is now almost [REDACTED] years old and for the 2021-22 school year was unilaterally placed at the Private School, a specialized private school in Connecticut. He has attended the Private School since the 2019-20 school year.^[4]

Student’s Needs

Student received special education services (SEIT) through the Committee for Preschool Special Education and again through the CSE while he attended various private schools through third grade, but even with that support he struggled consistently.^[5] In late 2018 a Doctor of Psychology performed a private psychological and educational evaluation and diagnosed Student with the following: Mixed ReceptiveExpressive Language Disorder, Developmental Coordination Disorder, Attention Deficit-Hyperactivity Disorder, Specific Learning Disorder in Reading, Math, and Writing, and Adjustment Disorder with Anxiety.^[6] Almost half of Student’s educational achievement levels, and many of his other assessment levels were rated “well below average”. She recommended that Student be placed in a specialized school for students with language-based learning disabilities and a low student-to-teacher ratio, with speech-language therapy and occupational therapy.^[7]

Parents requested an IEP meeting in May, 2019 but did not hear from the DOE. They identified the Private School as suitable for Student on the advice of an educational consultant. They enrolled Student there for the 2019-20 school year and Student met or outperformed his goals. Parents attended an IEP meeting in April 2020, at which the CSE recommended an integrated co-teaching (ICT) class. Parents disagreed with that recommendation and continued Student’s placement at the Private School for the 2020-21 school year. Parents filed a due process complaint with respect to the 2020-21 school year and an impartial hearing officer held hearings, including testimony from the Director of Foundations at the Private School with respect to Student’s program there for the 2020-21 school year. The hearing officer’s findings of fact and decision, included in the record as Exhibit B, includes a six-page excerpt from the Director of Foundation’s affidavit that describes in great detail the Private School program, speech-language services and motor training/occupational therapy services.^[8] The Private School offers a language-based remedial program for children with learning disabilities. It had an average student-to-teacher ratio of 4:1 as of September 2021, the date of the Director of Foundation’s affidavit.^[9]

Exhibit B also includes a very detailed description of Student’s program for the 2020-21 school year, Student was placed in each of his classes based on his specific needs and level of ability. He received a 40-minute tutorial class twice a day, which provided intensive remedial language instruction. He also had 40 minutes of special education instruction from a certified special education teacher in math, in a class of seven students. He had 1:1 weekly psychological services, 1:1 pull-out speech-language sessions and group speech, and motor training. The school had 20-minute “callback” periods four days a week where students were called back for extra help in homerooms in areas of weakness.^[10] Student made progress at the Private School during the 2020-21 school year, and the Director of Foundations, as well as Parents’ other witnesses for the 2020-21 school year agreed that the Private School was appropriate for Student for the 2020-21 school year.

Parents signed the contract for the Private School for the 2021-22 school year in February 2021, because it was due at that time and needed an appropriate option for Student if the DOE did not offer an appropriate program.^[11] They believed, when signing the contract, that the Private School would be an appropriate placement for Student based on the his success and progress there during the 2020-21 school year. This was confirmed by his report cards, his teachers’ communications, and the Parents’ own observations. However, Parents would have been happy if the DOE had offered an appropriate local program.^[12]

The Director of Foundations was no longer employed by the Private School at the time of the hearings for this case and the school was not able to schedule an alternate witness at that time. Student’s father, whom I found to be a credible witness, confirmed that the Director of Foundations’ description of the Private School program holds true for the 2021-22 school year.^[13] Student’s progress reports include substantial detail of his about his needs, his individualized programs and his services for the 2021-22 school year. For the 2021-22 school year, Student was in a class of four students and one teacher for his “tutorial” classes, four students and one teach for math. His writing class consisted of seven students, history class, ten students; literature class, In their ten day notice, Parents request specialized transportation for Student for the 2021-2022 school year.^[16] They received no response, so arranged private transportation in a carpool with three other students. They paid $1,500 per month for this transportation, for a total of $15,000 for the 10-month 2021-2022 school year.

The DOE’s case – provision of a FAPE (Prong 1)

As defined in the IDEA, a FAPE consists of special education and related services provided at no cost to a parent. Special education means “specially designed instruction...to meet the unique needs of a child with a disability” and “related services” are various supportive services “as may be required to assist a child with a disability to benefit from special education”.^[17] A school district has offered a student a FAPE when (a) the board of education has complied with the IDEA’s procedures and (b) the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). The IDEA’s procedures require the school district’s IEP Team, in developing an IEP, to consider (i) the strengths of the child; (ii) the concerns of the parents for enhancing the education of their child; (iii) the results of the initial evaluation or most recent evaluation of the child; and (iv) the academic, developmental, and functional needs of the child. 20 U.S.C. § 1414(d)(1)(A)(i)(I)-(IV). An IEP Team is a group of individuals, including the student’s parents. 20 U.S.C. § 1414(d)(1)(B).

A FAPE consists of “educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the 14 Hearing Transcript

15 Ex. F instruction.” Rowley, supra. To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15- 827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). When an IEP is disputed, a school district is expected to be able to offer a “cogent and responsive explanation for their decisions” to show that a student’s IEP meets that standard. The court in Endrew F. said that “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” A student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See 34 C.F.R.§§300.114 through 300.117; Walczak v. Florida Union Free Sch. Dist., supra.

The Second Circuit has confirmed that its pre-existing FAPE standard is consistent with the Supreme Court’s decision in Endrew F. Mr. P. & Mrs. P. v. West Hartford Board of Educ., 885 F.3d 735 (2d Cir. 2018).

The DOE’s failure to offer before the start of the school year an interim or permanent placement that can implement the student’s IEP is a procedural violation that may amount to denial of FAPE. See, e.g. Mr. and Mrs. A. v. New York City Dep’t of Educ., 56 IDELR 42 (S.D.N.Y. 2011), citing Bettinger v. New York City Dept. of Educ., 2007 U.S. Dist. LEXIS 86116 (S.D.N.Y. 2007); N.R. v. Dept. of Educ., 2009 WL 874061 (S.D.N.Y. March 31, 2009); G.U. v. New York City Dep't. of Educ., 23 F. Supp. 3D 210 (S.D.N.Y. 2014); V.S. v. New York City Dep't. of Educ., 25 F. Supp. 3D 295 (E.D.N.Y. 2014).

At hearing, the DOE conceded that it did not offer Student a FAPE for the 2021-22 school year.^[18] I therefore find that the DOE denied Student a FAPE for the 2021-22 school year.

The Parents’ Case (Prong 2)

Appropriateness of the Private School unilateral placement

The next issue to determine is whether the parent’s unilateral placement of the student at the Private School for the 2021-22 school year was appropriate. For the reasons described below, I find that Parents have met their burden with respect to the appropriateness of the Private School.

As described by the Second Circuit, whether a parent’s unilateral placement is appropriate ultimately turns on whether the placement is "reasonably calculated to enable the child to receive educational benefits." Frank G. v. Bd. of Educ. Of Hyde Park, 459 F.3d 356, 364 (2d. Cr. 2006). To that burden, the 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”. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007). However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ. Of Hyde Park, 459 F.3d 356, 364 (2d. Cr. 2006). The private placement need not provide certified special education teachers or have its own IEP for a student. Parental placements are not subject to the same mainstreaming requirements as a school district placement. Id. Subject to those exceptions, however, the same considerations and criteria that apply in determining whether a school district's placement is appropriate should be considered in determining the appropriateness of the parents' placement. Gagliardo, 489 F.3d at 112. A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).

The Second Circuit has provided the following guidance in determining whether parents have met their burden:

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

Gagliardo, supra, 489 F.3d at 112 (quoting Frank G, 459 F.3d at 364-65).

Although this question of evidence sufficiency is unusual in prong 2 of tuition reimbursement cases, it is less unusual in prong 1. In limited cases, school districts have successfully defended FAPE based on documents alone. That success depends on whether the documentary evidence is sufficient to demonstrate the soundness of the CSE’s decision making. A fact finder is in a strong position to evaluate the CSE’s decision making when the record includes the evaluative materials that the CSE reviewed when making recommendations for the IEP at issue.^[19] Courts in the Second Circuit have explained that the criteria applicable to a Prong 1 analysis (i.e. the Rowley/Endrew F. tests) apply with respect to the appropriateness of a unilateral placement. In Frank G., supra, the Second Circuit said:

Subject to the foregoing exceptions, the same considerations and criteria that apply in determining whether the School District's placement is appropriate should be considered in determining the appropriateness of the parents' placement. Ultimately, the issue turns on whether a placement -- public or private -- is "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v.

Rowley, 458 U.S. 176, 207 (1982); Muller ex rel. Muller v. Comm. on Special Educ., 145 F.3d 95, 105 (2d Cir.1998).^[20]

As Parent’s Attorney argued in opening and closing, the test is whether the unilateral placement was “reasonably calculated” to impart educational benefits. A hearing officer must decide, based on the record, whether, at the time the parents made the unilateral placement decision, they could reasonably believe that their chosen placement would benefit the student educationally.

Under the particular facts of this case, the evidence in the record is sufficient to meet the burden. Student attended the Private School for the two years before the year in question. As a result, Parents knew the school, its program, and its suitability for Student, and were in an excellent position to evaluate the placement. The hearing officer’s written findings of fact and decision for the 2020-21 school year, taken together with Student’s father’s testimony and the other evidence provides adequate evidence regarding the 2021-22 school year. The record clearly shows that when Parents decided to place Student at the Private School for the 2021-22 school year they had ample basis for believing that Student would receive educational benefits. Student’s progress reports for the 2021-22 school year show that he did, in fact make progress.

Based on the foregoing, I find that the Private School provided educational instruction specifically designed to meet Student’s unique needs for the 2021-22 school year. Parents have met their burden with respect to the Private School.

Equities

Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” Frank G., 459 F.3d at 363-64 (quoting Burlington, 471 U.S. at 374). The IDEA states that tuition reimbursement may be reduced or denied in certain circumstances, including failing to provide the CSE with notice of the unilateral placement either at the most recent CSE meeting or by written notice not less than ten business days before their removal of a student from public school, failure to make a student available for evaluation by the district, or “upon a judicial finding of unreasonableness with respect to actions taken by the parents”.21 Courts and hearing officers enjoy “broad discretion” in fashioning appropriate relief. Burlington, 471 U.S. at 374. In doing so, they may consider among other things whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014). Total reimbursement will not be appropriate if the cost of the private education was unreasonable. Carter, 510 U.S. 7.

Whether or not the parents cooperated with the CSE is a significant equitable consideration. The ten business days’ notice requirement "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004). 20 U.S.C. § 1412(a)(10)(C)(iv)(I) (bb) provides an exception to the ten business day notice requirement in the event a parent has not received notice of the ten business day requirement.22 Certain New York cases have also denied tuition reimbursement where the parents had no intention of accepting a school district placement.^[23]

In this case, the DOE did not make any arguments regarding the equities, and the DOE Attorney said that she did not see anything in the record indicating that there were any equitable issues.^[24] I find nothing in 21 20 U.S.C. §1412(a)(10)(c)(iii)

“Notwithstanding the notice requirement in clause (iii)(1), the cost of reimbursement ...shall not be reduced or denied ...if...the parents had not received notice, pursuant to section 1415 of this title, of the notice requirement in clause (iii)(1);….”

As to other equitable considerations, there is nothing to indicate that the cost of Student’s program for 2021-22, $71,150, was unreasonable.^[27] Student attended the Private School during the year at issue, except for a few days’ absence due to COVID.^[28] Parents attended the meeting for the 2021 IEP, visited the DOE’s proposed placement school, the Public School, and communicated their concerns about the Public School to the CSE.^[29] The weight of the evidence establishes that Parent cooperated with the CSE’s efforts to develop an IEP and recommend a program and placement for the 2021-22 school year. Overall and after considering the record at hearing, I find that the equities support Parent’s claim for tuition reimbursement for the 2021-22 school year. The DOE has been making payments pursuant to the February ^[25], 2022 pendency agreement.^[30] I am therefore ordering tuition reimbursement to the extent not previously reimbursed pursuant to pendency.

Transportation

Parents request payment of Student’s transportation expenses for the 2021-22 school year. School districts must provide disabled students with “suitable transportation to and from special classes or programs”.^[31] The school district is responsible for providing appropriate transportation to a nonpublic school for a student with a disability classified as such by the CSE, if the school is located not further than 50 miles from the student’s home and the student attends the school “for the purpose of receiving services or programs similar to special educational programs recommended for such child by the local committee on special education”. ^[32] Parents transported Student to and from the Private School during the year at issue via a car-pooling arrangement.^[33] Based on the foregoing, I find that Student is eligible for special transportation to and from the Private School and am ordering the DOE to provide it for the 2021-22 school year.

26 Id.

ORDERS

IT IS HEREBY ORDERED that the New York City Department of Education (“DOE”) is directed to fund the cost of Student’s 2021-22 school year tuition at the Private School up to a total amount $71,150; and it is further

ORDERED that the DOE shall make payment by reimbursing the Parents for the cost of Private School tuition for the 2021-22 school year upon proof of payment and to the extent not previously paid pursuant to pendency; and it is further

ORDERED that the DOE shall reimburse the Parents for the cost of Student’s transportation to and from the Private School for the 2021-22 school year up to a total amount of $15,000, upon proof of payment.

September 14, 2023

Virginia Tillyard, Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

CERTIFICATION OF IMPARTIAL HEARING OFFICER

I, Virginia Tillyard, Impartial Hearing Officer in this matter DO HEREBY CERTIFY that the below list of exhibits included in this decision, taken together with any prior submissions with certifications, identifies each exhibit admitted into evidence in the above matter as of this date.

In addition, the full record of this case, maintained by the district, includes all briefs, arguments or written requests for an order filed by the parties; all written orders, decisions or subpoenas issued by me; and transcripts of all proceedings on the record, along with any other applicable items described in 8 NYCRR §200.5(j)(5)(vi)(a).

I FURTHER CERTIFY that upon information and belief, the materials included in the record are either the original or true copy of the original documents submitted in this matter.

Dated: September 14, 2023

Virginia Tillyard, Impartial Hearing Officer

EXHIBITS ADMITTED INTO EVIDENCE

PARENT EXHIBITS

A. Request for Impartial Hearing 10/19/2021 7 pages

B. /25/2022 32 pages

C. Neuropsychological Evaluation 10/30 – 11/12/2018 18 pages

D. Notice of Unilateral Placement 8/24/2021 3 pages

E. [REDACTED]Enrollment Contract 8/9/2021 3 pages

F. [REDACTED] Class Schedule 2021-2022 2 pages

G. [REDACTED] Progress Report December 2021 24 pages

H. [REDACTED] Progress Report June 2022 24 pages

I. Affidavit of [REDACTED] Undated 6 pages

DOE EXHIBITS

None

IHO EXHIBITS

None

Footnotes

[1] Ex. A The IDEA and its implementing regulations and Article 89 of the New York State Education Law and its implementing regulations provide jurisdiction for this decision.

[2] References to “Hearing Transcript” in this decision refer to the cumulative transcript of any hearings in this case.

[3] 20 U.S.C. § 1415 (f)(3)(E)(ii) states: Procedural issues In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies-- The IDEA is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). Two purposes of the IDEA are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B).

[4] Ex. I

[5] Id.

[6] Ex. C

[7] Id.

[8] Ex. B, pp. 13-19

[9] Ex. B, p. 32

[10] Ex. B, pp. 16-18

[11] Ex. E; Ex. I

[12] Ex. I

[13] Exs. G and H; Ex. I seven students; and study skills, eight students. He had 1:1 weekly psychological services, 1:1 pull-out speech-language sessions, and motor training with individual goals, all with individual goals. He also had a 2:1 pragmatic speech and language group. In terms of executive functioning, Student’s father testified that executive functioning supports are the “core of their academic offering. Like, it's not -- this is not like an extra thing that they sort of add in. This is one of the main reasons that he attends [REDACTED].”14 In addition to core academic classes, Student had a 40-minute study skills class and a 40-minute tutorial class every day, and a “callback” class four days a week.15 Student’s progress reports also indicate that he made progress over the course of the year.

[16] Ex. D

[17] See the IDEA’s definitions at 20 U.S.C. §1401.

[18] Hearing Transcript 7/25/2023, p. 43 Here, the DOE argued that Parents cannot meet their burden of showing the appropriateness and suitability of the unilateral placement based on the documentary evidence and testimony submitted, and that the DOE should have the opportunity to cross examine a witness from the Private School. After review of the applicable law and the evidence in this case, however, I find that Parents here have met their burden.

[19] See L. O. v. New York City Dep’t of Educ., 67 IDELR 225 (2d Cir. 2016); SRO Appeal Nos. 23-090 and 19-054.

[20] Frank G., supra (emphasis added). See also Mr. and Mrs. P., supra.

[23] See, e.g. Carmel Cent. Sch. Dist., 375 F.Supp. 402 (S.D.N.Y. 2005).

[24] Hearing Transcript the record to show that the Parents in this case failed to cooperate with the DOE. They provided the necessary ten days’ notice of their concerns with the 2021 IEP, including detailed and specific concerns.25 Parents also gave the DOE notice of their intention to unilaterally place the Student at the Private School for the 2021-22 school year.26 No evidence was submitted at hearing describing the DOE’s response to the ten day letter.

[25] Ex. D

[27] Ex. E

[28] Testimony of Student’s father, Hearing Transcript

[29] Exs. A and E

[30] Hearing Transcript

[31] Educ. Law §§ 4401(1); 4402(4)(a); Educ. Law § 4401(2); see also 8 NYCRR 200.1(ww).

[32] N.Y. Educ. Law §4402(4)(d).

[33] Testimony of Student’s father, hearing transcript I have reviewed Parents’ other requests and claims and find them either to be without merit, not supported by the record, not within my jurisdiction or beyond the scope of my authority. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parents’ remaining claims not discussed herein are dismissed with prejudice.