NY IHO #220586: New York City... | Special Education Law

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FINDINGS OF FACT AND DECISION (CORRECTED)^[1]

Case Number: 220586

Student’s Name: REDACTED

School District: N.Y.C. Dept. of Ed., District # REDACTED Impartial Hearing Officer: Harry A. Christodoulou

Date of Filing: 10/29/2021

Hearing Requested by: REDACTED (“Parent”) & REDACTED (collectively “Parents”)

Date of Hearing: 09/23/2022

Record Close Date: 10/05/2022

Date of Decision: 10/14/2022

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 23, 2022

For the Student:

REDACTED (hereinafter referred to as “Parents’ representative”)

REDACTED (Observer)

REDACTED (“Parents’ Witness 1”)

REDACTED (“Parents’ Witness 2”)

Parents

For the Department of Education (“DOE”):

REDACTED (hereinafter referred to as “District’s representative”)

REDACTED (Observer)

BACKGROUND AND PROCEDURAL HISTORY

Student is a REDACTED-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). Student’s eligibility for special education supports and services is not in dispute.

On October 29, 2021, Parents, through Parents’ representative firm, filed a due process complaint (“DPC”) against the DOE pursuant to the IDEA (Exhibit P-A). I was appointed on March 24, 2022, 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 Student’s special education program.

The claims in the DPC relate to the 2020-2021 school year (“SY”), asserting that based on numerous procedural and substantive grounds, the DOE failed to offer Student a free and appropriate public education (“FAPE”). Student was REDACTED-years-old at the start of the extended SY (T. P64, L15-16). Parents are seeking, inter alia, tuition reimbursement for the cost of Student’s placement at the Attending School (defined on page 22) for the 2020-2021 SY (Exhibit P-A-4). Parents filed an amended DPC on June 29, 2022, which was approved by the District on July 1, 2022. The relief in the amended DPC remains the same (Exhibit P-B-7).

The parties sought, and were afforded time, to try resolve the matter without the need for an IH. The IH was scheduled for, and held on, September 23, 2022.

JURISDICTION

A decision in this matter is being rendered pursuant to the IDEA^[2] and its implementing regulations^[3], and the New York State Education Law^[4] and its implementing regulations^[5].

PARTIES’ POSITIONS AND CASES PRESENTED

DOE:

District’s representative confirmed at the IH that the DOE was not putting on a case, would not be calling any witnesses, and that the DOE was conceding Prong I, namely that it failed to provide Student with a FAPE for the SY in question (T. P60, L11-16). District’s representative also confirmed that the DOE was challenging Prong II and reserving its rights to raise any relevant Prong III factors.

Four of the DOE’s proposed exhibits were admitted to the record, and the rest were withdrawn, by agreement between the parties (T. P201, L6-20).

In an opening statement at the IH, District representative stated that: the District was not presenting a Prong I case for the SY at issue but was contesting the appropriateness of the program at the Attending School for the SY at issue; asserted that the Attending School was not appropriate to meet the needs of Student; and that the equities favored the DOE (T. P64, L1-8). After Parents’ representative made an opening statement, District’s representative confirmed that the DOE was resting its case (T. P70, L16-17).

In a closing statement at the IH, District’s representative, inter alia (T. P201-203): Asserted that Parents failed to meet their burden that the unilateral placement was appropriate and therefore the equities favor the DOE or would limit the award.

Parents:

Parents, through the Parents’ representative, submitted nineteen documents in support of the Parents’ case. All Parents’ proposed exhibits were admitted to the record (and are listed below) after confirming with the District’s representative that there were no objections from the DOE to those documents being admitted into evidence (T. P61, L2-4; P70, L20-25; P71, L1-19).

Parents’ representative led the evidence of three witnesses in support of Parents’ case, namely, Parents’ Witness 1, Student’s special education teacher at the time and Parents’ Witness 2, the Director at the Attending School, and Parent. A tuition affidavit (Exhibit P-L) was admitted to the record as the Affiant (defined on page 22) was not required for either cross-examination or clarifying questions (T. P61, L4-16).

In an opening statement, Parents’ representative inter alia (T. P64, L12-25; P65-68; P69, L1-19): provided information related to Student, Student’s learning challenges, and challenges experienced at the placement prior to attending the Attending School; mentioned Student’s delays and challenges in the ability to take academic risks; addressed the burden of proof; asserted how Parents had no choice but to arrange for some school for Student to attend when the DOE failed to offer a school placement; indicated how the testimony that Parents were planning to present would demonstrate that the Attending School was providing a ‘superb program’ to meet Student’s needs, also detailing what that program looked like; asserted that Student achieved ‘extraordinary progress’ over the SY at issue, providing examples to support the assertion; asserted how the equities favor reimbursement in that Parents cooperated at ‘every step’ with the DOE and have worked ‘very hard to try work with them’ in order to find Student a proper placement, speaking to the long history of inappropriate school placements recommended by DOE for Student; and stated the relief sought.

In a closing statement at the IH, Parents’ representative, inter alia (T. P203-210): referenced the legal standards and asserted that the issue turns on whether the placement is reasonably calculated to enable the child to receive ‘educational benefits’; asserted that the Attending School satisfied the relevant requirements, referencing the testimony on record as well as the ‘highly individualized program’ that catered for different student group sizes for the various classes and ‘extensive modifications’ to the curriculum, referencing Student’s learning plans (Exhibit P-G, & -H) and techniques used; highlighted the progress achieved by Student at the Attending School; addressed the related services Student received, and the collaborative nature of the program, asserted that Student was able to access the curriculum with the ‘highly specialized’ supports; addressed the equities, pointing to Parents’ cooperation throughout the process; and reaffirmed the relief sought, referencing case authority.

PREVAILING PARTY

Parents are the prevailing party, and an award or Order is granted in their favor.

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^[6].

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^[7].

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^[8], and default judgments are disfavored by the federal courts^[9]. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”^[10].

School districts are not required to “maximize” the potential of students with disabilities^[11], 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’”^[12]. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit”^[13].

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^[14].

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^[15].

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^[16].

FINDINGS OF FACT AND DECISION

Prong I - Denial of a FAPE:

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.”^[17] The DOE, as of right, elected to concede that it failed to provide Student with a FAPE for the 2020-2021 SY. Given the DOE’s decision to concede Prong I, it has not discharged its burden in these proceedings to establish that it provided Student a FAPE for the 2020-2021 SY. Even had the concession not been made, the record established that the DOE had not provided Parents with an IEP prior to the start of the extended SY for the entire SY^[18]. Parent testified (T. P179, L22-25; P180, L1-23) inter alia that: she did not receive an IEP for Student at any point prior to the July 1st start of the 12-month 2020-2021 SY^[19]; and that Parent did not receive a written school placement recommendation for Student, offering Parents a school placement prior to the July 1st start of the 12-month 2020-2021 SY.

Although the IEP on record covered a portion of the SY at issue, it would not have covered the entire extended SY and, without a school placement, Parents concerns documented in Parents’ ten-day notice were justified (Exhibit P-C). Even without the concession, these facts would have resulted a finding that Student was denied a FAPE for the 2020-2021 SY^[20].

Parents have accordingly met the first criterion of the three-part test set out in the Burlington/Carter case for tuition reimbursement.

Prong II - Appropriateness of the Parents’ 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”^[21]. The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements”^[22].

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”^[23].

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”^[24] (my emphases).

In both instances highlighted above, the focus is on the needs of the child, which are individual and unique, and that 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.

Evidence on record:

Parents’ representative presented detailed testimony by Parents’ Witness 1, Parents’ Witness 2, and Parent and submitted documentary evidence in support of the Parents’ position that the Attending School placement was an appropriate placement.

Parents’ Witness 1 testified (T. P72-102) as to:

Witness’s title, namely special education teacher certified and licensed in New York State for high school grades seven through twelve, and during the SY at issue was employed by the Attending School; Witness’s educational background, work experience and trainings; Witness’s familiarity with Student, namely having taught Student in ELA during the SY at issue and into the following SY, also helping oversee some of Student’s programming.

Student’s strengths and weaknesses, and her learning difficulties, addressing Student’s distractibility and unpredictability, and providing examples of how Student could easily become dysregulated in the classroom; the class size and make up; how the curriculum was modified to meet each students’ needs; how Witness wrote Students’ ELA functioning sections in both of the learning plans in evidence; how Student was significantly behind in some areas; the ‘gradual release model’ used and how they would focus on meeting students where they were and making sure that every single skill was addressed ‘in bite size chunks’.

How Student had gone up two to three grade levels by the end of the year based on the same diagnostic that was conducted at the beginning of the year; overall, reading, writing, everything improved one to two grade levels; how Student’s social-emotional needs were addressed in Witness’s classes, providing examples in support, including use of “exposure therapy”, and how by the end of the year Student was able to participate in the larger group activities with much better results where she was actually enjoying herself as opposed to being very dysregulated and upset.

How there were periods during the SY where they were on and off working remotely for various reasons, but how, at least in terms of core academics, it didn't really change much from the in-person program; learning was synchronous and at times hybrid, where they also had in-person students attending; students attending remotely would see the exact same presentation and engage in the same way, as Witness would face the camera so that if students were talking to each other they could see each other and that it was ‘pretty seamless’; how Witness could still give Student individual support at the screen while her paraprofessional would be able to oversee the other two students in the room; how Student had the same access to Witness that Student had to her when in-person; and how Student was a fantastic remote learner, because a remote environment is a very controlled environment, with the result that Student was able to maintain her skills through those remote periods.

Witness’s collaboration with other school staff at least weekly if not daily, including overseeing the writing of Student’s learning plan, which was one hundred percent individualized for Student, and helping other teachers getting better at extrapolating diagnostic data, using it in their instruction, using it to write goals, and ensuring consistency and transparency as part of a uniform approach, especially when addressing non-academic goals like executive function or social-emotional skills.

How the learning plans were an accurate statement of Student’s program and progress at the Attending School during the course of the SY; and her professional opinion regarding the Attending School being an appropriate school setting to meet Student’s needs for the 2020-2021 SY.

Parents’ Witness 2 testified (T. P103-174) as to:

Witness’s title, namely Director of the Attending School; Witness’s educational background, work experience and trainings; Witness’s duties and responsibilities as Director; a detailed description of the Attending School; the philosophy upon which the school is based; the number of students enrolled in the school for the SY at issue; Witness’s familiarity with Student, namely having interviewed Student at the school with Parents during 2019, through working with Student, observing Student in class, and also being part of Student’s treatment educational team.

Student’s ‘rich academic curriculum’; the make of the classes (talking to Student’s class schedule – Exhibit P-I, as well as Student’s remote learning schedule), including the number of students which varied from class to class (as well as the age range of the students), the teachers and their credentials (including three special education teachers), the paraprofessional working with Student one-on-one, as well as details of the related services Student received (OT twice a week in the sensory motor room and once a week as a push in service; S&L twice a week; social group class; and adaptive PE); the credentials of the service providers, of which the speech and OT providers were New York State licensed; and some of the skills targeted in S&L and OT, providing some general examples and also examples specific to Student.

The interface with the other school on the campus; Student’s functioning skills in math at the beginning of the year and how she made progress; Student’s social-emotional skills at the beginning of the year and how the Attending School addressed Student’s social-emotional needs over the course of the year, providing detailed examples; Student’s interactions with other students; and all the progress Student made over the course of the year.

Parent testified (T. P175-198) as to:

Student’s educational history and experienced at prior school placements during prior SYs; the DOE’s failure to provide either an IEP or a school placement recommendation prior to the July 1st start of the 12-month 2020-2021 SY; sending the CSE the ten-day notice letter, explaining Parents’ concerns and informing of their intention to retain Student at the Attending School, and that there was no response from the CSE to Parents’ letter.

The brief period when Student was learning remotely, being a little over a month; what prompted Student to move over to remote instruction, and how Student consistently signed on and attended remote instruction sessions on schedule; how Student was provided with a device so that Student could access remote instruction and that there were no problems doing so.

How, when Student was in a small classroom, Student was not distracted by other students’ actions, so Student can focus on learning; Student was really thriving and had made meaningful connection with other peers and teachers; how in a small setting Student was pretty controlled, so that Student did not have issues, and could focus; how academically Student made steady progress and socially too, and had also made good connections with other peers; how the Attending School was appropriate for Student because Student made progress in all areas.

I find that Student’s program was specifically designed to cater to Student’s learning disabilities, that it was a ‘really good fit’ for Student’s strengths and needs providing the individualized supports she needed to receive educational benefits. The entire program, including the learning methodologies and the supports provided were all designed to meet Student’s needs, and Student’s learning plans were “100 percent” individualized specifically for Student to achieve learning and progress (T. P169-173).

The detailed evidence presented by Parents’ Witness 1 substantiating how Student’s teachers specifically tailored the program for Student’s unique and individual needs, is uncontested and credible. For example, Parent’s Witness 1 readily offered testimony, unprompted, that not all parts of in-person learning could be replicated through remote learning (T. P87, L19-23). The ‘lost things’ were however not significant enough to render the placement inappropriate, in other words, I find it to be de minimis given the complete offering by the Attending School during the very brief period of remote learning that in fact took place during the SY at issue.

It was asserted that Parents have failed to show what specifically about Attending School’s programming differentiates them from other schools and why a mainstream placement is not appropriate for this student (T. P202, L6-9). It was also asserted that the unilateral placement encourages over-dependence on one-to-one assistance with no progress toward any goal of broader integration and that Student’s improvements have come at a cost to her independence (T. P202, L22-24). Besides the fact that these assertions do not comport with the legal standard, set out above, it is also not supported by the evidence on record^[25]. I also note the concession that the unilateral placement resulted in improvements for Student.

The evidence on record, which was not disputed through any testimony, let alone any expert testimony contradicting the testimony of Parents’ Witnesses 2, supports the Parents’ representatives’ assertion that the Attending School was an appropriate placement for Student, including: being a specialized program or placement where Student received on-on-one support strictly around particular academic classes and other experiential classes where Student was going to be required to navigate more distraction and manage sensory input because, according to Parents’ Witness 2, without that support Student would shut down (T. P113, L20-24); that Student needed an environment for the 2020-2021 SY where Student had a high level of support and a low ratio so that Student would be able to be distracted as minimally as possible and also manage all of Student’s struggles with learning processes; that Student needed a small class and to be with peers that were similar to her, that did not have aggressive behaviors, were verbal, close in age, that could model for Student, and where Student could get certain supports, and which Student ‘needed quite a bit of support’ (T. P142, L7-25; P143, L1-2).

The testimony of the Parent, Parents’ Witness 1 and Parents’ Witness 2, and the Parents’ documentary evidence (Exhibits P-E, P-F, P-G, P-H, P-I, P-J, P-N, and P-O) establishes that the Attending School was appropriate and provided Student with educational instruction that was specifically designed to meet Student’s unique special education needs, supported by such services that were necessary to permit Student to benefit from instruction, for the 2020-2021 SY. I find that, based on the Student’s attendance at the Attending School for the extended SY in question, as testified to by Parent, Parents’ Witness 1, and Parents’ Witness 2, Student made progress during the 2020-2021 SY.

Parents have therefore met the second criterion of the three-part test set out in the Burlington/Carter case for tuition reimbursement.

Prong III - Equitable Factors:

Equitable considerations are relevant to fashioning relief under the IDEA^[26].

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^[27].

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 ten 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”^[28].

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”^[29].

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^[30].

The hearing record reflects that Parents notified the CSE by letters dated June 17, 2020 and October 8, 2022 of their intention to place, and then retain, Student at the Attending School and seek public funding for the 2020-2021 SY (Exhibits P-C & -D, respectively).

I find that in these letter Parents offered sufficient information to put the DOE on notice about their concerns regarding the CSE’s failure to make an appropriate program and placement recommendation and informed of Parents’ intention to place, and then retain, Student at the Attending School for the 2020-2021 SY, giving the DOE an opportunity to cure any deficiencies, which is the intent underlying the ten-day notice requirement^[31].

Although it is apparent from the record that Parents signed a contract enrolling Student in the Attending School prior to the start of the extended 2020-2021 SY and before providing the CSE the ten-day notice, namely on June 15, 2020 (Exhibit P-K-4), the Second Circuit has 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”^[32]. I find that the timing when the ten-day notice was sent to the CSE to be of no consequence to Parents’ claim and the relief being granted.

Parents have therefore met the third criterion of the three-part test set out in the Burlington/Carter case for tuition reimbursement. Having met all three criteria of the Burlington/Carter test, Parents are entitled to funding for the cost of the Student’s placement at the Attending School for the 2020-2021 SY.

Amount Claimed:

A District must provide extended school year (“ESY”) programming services when a student's IEP team determines on an individual basis that the services are necessary for the provision of a FAPE to the child^[33].

The term ESY services means special education and related services that: are provided to a child with a disability: i) beyond the normal school year of the public agency; ii) in accordance with the child's IEP; iii) at no cost to the parents of the child; and iv) meet the standards of the state educational agency^[34]. I note that the IEP prepared for the Student on record (Exhibit DOE-9) determined that Student was eligible to receive special education services and/or program during July/August (Exhibit DOE-9-26, & -31). Based on the record, I do not find that the IEP team’s determination should be disturbed.

Affiant confirmed, as of April 25, 2021, the total annual tuition rate of $79,000.00 owing to the Attending School for the 2020-2021 SY for Student’s enrolment from July 7, 2020 through June 30, 2021 (i.e., the extended SY), plus $200.00 for “registration, meals, books, etc.”, of which Parents had paid $72,820.00 (Exhibit P-L-1, & -L-2). Parents’ representative clarified for me that there is no direct funding sought^[35] and that Parents are only claiming tuition reimbursement for the amounts paid totaling $72,820.00 (T. P198, L8-25; P199: P200, L1-25).

Proof of Parents payments totaling $72,820.00 towards the tuition owing is included in the record (Exhibit P-M) and the payments corelate to the payments confirmed under oath by the Affiant (Exhibit P-L). Parent confirmed the enrollment contract signed by Parents (Exhibit P-K), as well as the payments made by them (Exhibit P-M) in her testimony (T. P186, L1-25, P187, L1-4). I find that Parents made payments totaling $72,820.00 to the Attending School for the 2020-2021 SY for Student’s enrolment from July 7, 2020 through June 30, 2021 (i.e., the extended SY). Given that Parents are claiming an amount less than the total tuition cost of $79,000.00, even after deducting the “special discount” of $4,800.00 (i.e., $79, 000.00 minus $4,800.00 = $74, 200.00), the fact that a “special discount” was offered is of no consequence to Parents’ claim and the relief being granted.

Although transportation is mentioned as part of the proposed solution in the DPC and the amended DPC, it was not pursued as part of the IH (T. P69, L13-20; P209, L-25; P210, L1-13). Interest is claimed in the DPC and the amended DPC (Exhibit P-A-4, & -B-7), utilizing standard federal interest calculation methodology. Unlike the claim for transportation, the interest claim was pursued as part of the IH and Parents’ representative relied upon case authority in support of the claim (T. P210, L4-12). The interest claim is not being awarded.

Firstly, a determination has only just been made pursuant to these proceedings that Parents are entitled to relief. This includes the amount which should be paid. Parents however, through Parents’ representative, only confirmed towards the end of the proceedings that Parents were claiming a lesser amount equal to the total payments made by them ($72, 820.00), and not the higher amount specified in the tuition affidavit ($79,000.00). District’s representative raised in cross-examination the ‘special discount’ ($4,800.00) (Exhibit P-L-2) that Attending School provided, but the evidence in response was not very clear as to why the discount was provided. There was also a further amount reflected as outstanding, but which Parent testified was not owed to the Attending School, and which Parents chose not to pursue. The DOE was entitled to ensure that correct amounts were being claimed, even if it was conceding Prong I. DOE also sought to challenge Prong II, albeit unsuccessfully.

Secondly, both parties chose to engage is settlement discussions for a considerable period, extending the due date for the final determination of this case. If interest were to be awarded as claimed, Parents would benefit to the detriment of the DOE, for this additional extended period that both parties willing chose to engage in and where confirmation was sought each time an extension was granted that none of the four factors would bar granting the extension, which included no “adverse financial or other detrimental consequences likely to be suffered by a party in the event of a delay”^[36].

Finally, the amount being granted is the amount determined due as an equitable remedy in the circumstances of this case and should not be adjusted either up or down, as the remedial purpose of the IDEA is being served by the amount being awarded^[37].

Other than the relief set out in my Order below, I do not find any other basis or evidence in the record supporting any additional relief.

ORDER

Based upon the above Findings of Fact, it is hereby ORDERED that, the DOE shall reimburse Parents the tuition payments made to the Attending School for Student’s placement at the Attending School for the 2020-2021 extended school year in the sum of $72,820.00 (Seventy Two Thousand Eight Hundred and Twenty Dollars).

SO ORDERED.

DATED: October 14, 2022

(Corrected)

__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’S EXHIBITS

Exhibit

Title

Date

Pages

Withdrawn

Social History Update

07/30/2019

Psychological Evaluation

07/31/2019

IEP

10/30/2019

10.

Recommendations Signed by Parent

10/30/2019

11.

Withdrawn

PARENTS’ EXHIBITS

Exhibit

Title

Date

Pages

Impartial Hearing Request

10/29/2021

Amended Impartial Hearing Request

06/28/2022

Letter from Parents to REDACTED, CSE Chairperson with transmission confirmations

06/17/2020

Letter from Parents to REDACTED, CSE Chairperson with transmission confirmations

10/08/2020

Program Description

2020-2021

Remote Learning Plan

Undated

Student Learning Plan

01/31/2021

Student Learning Plan

06/30/2021

Daily Schedule

2020-2021

Remote Schedule

2020-2021

Enrollment Contract

06/20/2020

Affidavit of Payment

04/25/2020

Proof of Payments (from 06/15/2020 to 04/07/2021)

Various

Progress Report

06/17/2019

Fall 2018 and Spring 2019 NWEA Scores

06/03/2019

Psychoeducational Evaluation

07/18/2017,

07/19/2017

Neuropsychological Evaluation

11/14/2011

Email correspondence between Parent and REDACTED, CSE Psychologist

08/17/2020,

08/19/2020

Request for Medical Accommodations and Authorization for Release of Health Information Pursuant to HIPAA

01/21/2021,

01/25/2021

IHO’S EXHIBITS

Exhibit

Title

Date

Pages

APPENDIX

REDACTED

Footnotes

[1] See pages 7, 8, and 15, where the SY was incorrectly referred to as the 2021-2022 SY, instead of the 2020-2021 SY. The corrections have been bolded.

[2] U.S.C. § 1400 et seq.

[3] C.F.R. § 300 et seq.

[4] Educ. Law Art. 89 § 4404 et seq.

[5] NYCRR § Part 200.

[6] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].

[7] 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].

[8] U.S.C. § 1415[f][3][E][i].

[9] 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.

[10] Rowley, 458 U.S. at 203.

[11] 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.

[12] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.

[13] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.

[14] See Antignano v. Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11 [E.D.N.Y. Jan. 4, 2010].

[15] NYS Educ. Law § 4404(1)(c).

[16] 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].

[17] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).

[18] The projected implementation period is 11/20/2019 and the projected date of annual review was 10/30/2020 (Exhibit DOE-9-1).

[19] Parent did testify that after the meeting that occurred on or around October, 2019, she did receive a one-page summary of the program recommendation and related services that day, which somebody brought to her at the end of the meeting and said sign it here, which she did, but that it was only one page, not a whole IEP. Such a one-page document consistent with Parent’s testimony described as a ‘draft’ is admitted to the record as Exhibit DOE-10-1.

[20] 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), 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 emphasis).”

[21] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007].

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

[23] Gagliardo, 489 F.3d at 115.

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

[25] See for example: T. P113, L13-18; and P166-167.

[26] 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"].

[27] 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].

[28] U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].

[29] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004].

[30] 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].

[31] Greenland Sch. Dist., 358 F.3d at 160.

[32] C.L., 744 F.3d at 840.

[33] C.F.R. § 300.106[a][2].

[34] C.F.R. § 300.106[b].

[35] As such, a case for direct funding based upon need does not have to be supported by the record.

[36] NYCRR § 200.5(j)(5)(ii)(a-d).

[37] See Doe v. East Lyme Board of Education, 76 IDELR 233 (2d Cir. 2020), where it was stated that “Prejudgment interest is generally not awarded, but it may be ordered in the district court's discretion to ensure that a plaintiff is fully compensated or to meet the "remedial purpose of the statute involved." See Wickham Contracting Co., Inc. v. Local Union No. 3, Int'l Bhd. of Elec. Workers, AFL-CIO, 955 F.2d 831, 833-34 (2d Cir. 1992). …”; and also references the case authority relied upon by Parents’ representative.

New York City Department of Education, Impartial Hearing Decision

JURISDICTION

ORDER