New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 565408 - NYC: 220855

FINDINGS OF FACT AND DECISION

220855

[REDACTED]

[REDACTED]

Parents

Martin J. Kehoe III, Esq.

November 2, 2022

220855

[REDACTED]

[REDACTED]

Parents

Martin J. Kehoe III, Esq.

November 2, 2022

Case Number:

Student’s Name:

District:

Hearing Requested By:

Hearing Officer:

Actual Record Close Date:

Table of Contents

I. Introduction 2

II. Overview 2 a. Parents’ Position 3 b. District’s Position 4 c. Background of the Case 4 d. Student History 4 e. Legal Overview 5

III. Prong I 6 a. Did the District Present a Prima Facie Case? 6 i. Standard 6 ii. Analysis 7 iii. Conclusion 8

IV. Prong II 8 a. Legal Issue: Did the Parents Establish the Appropriateness of the Independent SETSS Provider? 8 i. Legal Standard 8 ii. Analysis 9 iii. Conclusion 10

V. Prong III 10 a. Legal Issue: Did the Parents Cooperate with the District? 10 i. Legal Standard 10 ii. Analysis 11 iii. Conclusion 11

VI. Market Rate v. District Rate 11

I. Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent(s) as Parent(s) and the student will be referred to as Student.

II. Overview

This claim is for Special Education Teacher Support Services (SETSS) and various related services governed by the Individualized Education Services Program (IESP) (Ex. B)^[1]. This case involves a demand for enhanced rate services for the 2020-2021 school year (SY). The Parents filed the complaint notice on November 3, 2021. (Ex. A) I was appointed as the IHO on March 25, 2022. The Parents introduced exhibits A-G into the record and called two (2) witnesses: the Parent/Mother and the Supervisor of Special Education Services at the Private Agency (the Supervisor). A hearing was held across multiple dates.^[2] The District did not call any witnesses or offer any exhibits.

The State Review Officer has directed that the analytical framework for deciding the type of case that is before me now is analogous to a classic “reimbursement” case. A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985). The analytical framework for deciding a reimbursement case is typically called a three-prong analysis. I adopt this for the instant case. See, SRO 22-046

There is also a demand for “compensatory education” in addition to tuition reimbursement. Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and... mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997]. a. Parents’ Position The Parents assert that for the 2020-2021 school year, the District did not develop an IESP for the Student recommending special education services. They attempted to locate a paraprofessional; however, they were unable to locate a provider. (Ex. A-2)

As a result, the Parents request the following:

• • That the District continue to fund the program outlined in the IEP dated 3/18/2019 at the provider’s prevailing rate; and
• • That the District fund a bank of compensatory periods of all services which the Student
• • is entitled to under pendency for the entire 2021-2022 school year – or the parts of which were not serviced. (Ex. A-3)

b. District’s Position The District did not present a case, introduce evidence, nor call any witness to testify on their behalf. The District did assert an objection to the enhanced rate being requested by the Parents. c. Background of the Case

On March 18, 2019, a Committee on Special Education (CSE) meeting was held to develop an Individualized Educational Program (IESP) for the Student, where the CSE team recommended SETTS services (English; Direct) with related services.^[3] (Ex. B-5) d. Student History The Student was [REDACTED] years old at the start of the 2021-2022 SY. The Student carried a disability classification of Other Health Impairment.^[4] (Ex. B-1) He was described in a September 2022 progress report by the Private Agency as “an active little boy who does well socially.” (Ex. F) His IESP notes his distractibility, impulsivity, and fine motor issues. (Ex. B-1) e. Legal Overview The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:

(A) have been provided at public expense, under public supervision and direction, and without charge,

(B) meet the standards of the state educational agency,

(C) include an appropriate preschool, elementary, or secondary school education in the state involved, and

(D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).^[5]

A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally, 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an IEE of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).

Education Law section 3602-c, as amended by Chapter 378 of the Laws of 2007, establishes New York State’s (NYS) requirements relating to the provision of special education to students with disabilities enrolled in nonpublic elementary and secondary schools by their parents. Under the provisions of section 3602-c, students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an individualized education services program (IESP) from the public school district in which the nonpublic school is located while they receive general education from the nonpublic school where their parents enrolled them.

III. Prong I a. Did the District Present a Prima Facie Case? i. Standard

IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must be able to “... offer a cogent and responsive explanation for their decisions...” Endrew F., Supra.

ii. Analysis

I first look to the Parents’ allegations to determine the scrutiny to apply in evaluating the District’s presentation. In the complaint notice, the Parents write the following:

Parent is concerned regarding the delay in convening a new IEP meeting to recommend FAPE or services. The 3/18/2019 IEP is by now outdated and expired. The delay in convening an IEP meeting and recommending proper placement and services is a denial of a FAPE.

As to the services recommended on the old IEP, Parent has been unable to locate a provider on their own accord and the District has failed to implement their own recommendations. Without the supports, the parental mainstream placement is untenable, and the failure to either implement the services or provide a placement is a denial of a FAPE. Parent utilized DOE’s online resources to locate a SETSS and related services provider, but the providers they contacted were unable to service their child, either due to the low standard rate offered by the DOE, or general dearth of providers in this area. Parent has located appropriate services providers independently for the 2021-2022 school year at their prevailing rate. (Ex. A-2)

This is the backdrop from which I weigh the District’s presentation, ever mindful that the District has the burden of proof. In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.

The District conceded Prong I to the extent that they did not defend the failure to implement claim. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 111 2016 U.S. App. LEXIS 9239. There was no explanation for the District’s inaction, and I am left to speculate concerning the particulars of the public finance principles that justify such inaction. iii. Conclusion

Upon review, I find that the District failed to demonstrate that they met their burden in providing the Student an IEP tailored to meet his individualized needs. I, therefore, rule for the Parents on Prong I.

IV. Prong II a. Legal Issue: Did the Parents Establish the Appropriateness of the Independent SETSS Provider? i. Legal Standard

I now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Unilateral Placement. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:

“... [P]arents 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 v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006]

Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect"). ii. Analysis The Mother, who testified on behalf of the Parents, stated that the Private Agency provided the Student five (5) hours of SETSS per week during the 2021-2022 SY. (Ex. D-2)

The Supervisor of Special Education Services at the Private Agency (the Supervisor), who also testified on the Parents’ behalf, provided some insight regarding the Student’s SETSS. He mentioned that the Private Agency provides one-on-one supervision and educational resources. During the 2021-2022 SY, the Student received his services in his mainstream school setting and were typically provided outside the classroom. Theses individualized sessions include a “great deal of specialized instruction.” (Ex. E-2)

The Private Agency monitors the Student’s progress on a quarterly basis, through assessments, meetings, observations, and daily session notes. The Supervisor noted that the Student displayed signs of progress with his SETSS provider. He concluded by stating that the Student requires a continuation of his services due to his academic and social delays. (Ex. E-2) iii. Conclusion

I find that the Parent acted appropriately by contracting the Private Agency. The Parents have met their burden by establishing that such services were necessary to permit the Student to benefit from instruction. I, therefore, rule for the Parents for Prong II.

V. Prong III a. Legal Issue: Did the Parents Cooperate with the District? i. Legal Standard

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents where equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148^[6]). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).

ii. Analysis

There were no equitable issues were raised in this proceeding. iii. Conclusion

Upon review of the record, I find that the Parents cooperated with the District and did nothing to impede them from developing an appropriate IEP for the Student. As such, I find no reason for reduction in reimbursement. I, therefore, rule for the Parents in Prong III.

VI. Market Rate v. District Rate In this type of case before me, where the parties agree regarding services to be delivered, but the Parents cannot find a District provider, there are myriad variables that influence the market rate for enhanced rate services. (i.e. language of delivery, locale of delivery, characteristics of student, agency overhead, frequency of services, etc.) The prospect of developing a full record in each of the numerous “enhanced rate” cases is daunting and while possible, in the existing environment on Special Education litigation in New York City,^[7] an option has arisen that allows for flexibility and fairness while expeditiously ensuring the timely provision of services to the Students, that all agree, require such services. Over time, I have noticed that the District’s “Implementation Unit”, when given the opportunity to execute interim orders and pendency decisions, is adept at identifying providers without issue. In effect that unit is “making the market” for enhanced rate services.

Compensatory Education

Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001].

Likewise, SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13-226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]).

In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]).

Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Parents of Student W. v. Puyallup Sch. Dist. 31 F.3d 1489, 1497 ["There is no obligation to provide a day-for-day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091). See, specifically, Application of a Student with a Disability, Appeal No. 14-014.

In this case the Complaiont notice identifies the issue of mandated services that are not delivered and seeks the remedy of additional services, or compensatory education services, to place the Student in the same position they would have occupied but for the school district's violations of IDEA. The parent further articulated the particulars of their concern through testimony at the hearing. Specifically, from the Parent’s affidavit:

Despite my best efforts, I was unable to locate a SETSS provider for [The Student]. I made many phone calls to independent SETSS providers on the list that is published on the DOE website, and none of them were available to service my child at the standard DOE rate. The DOE did not make available any SETSS provider. As a result of the above, [The Student] did not receive SETSS from the DOE for the period from 9/1/2021 to 11/3/2021... am requesting a bank of 45 periods of SETSS corresponding to the 9 weeks during which the District failed to implement its own recommendations.

He continues

I have been unable to locate providers for the Physical Therapy services which [The Student] is recommended to receive as part of the most recent IESP and to which [The Student] is entitled to under the pendency program. The DOE did not make available any Physical Therapy providers. [As a result he is seeking]a bank of 20 hours of Physical Therapy.

It is therefore ORDERED

• • That upon presentation of invoicing for same, the District fund the Student’s SETSS provider/agency for up to five (5) periods per week of one-on-one, enhanced rate SETSS services for the portion of the 2021-2022 SY commencing on November 4, 2022. The rate to be paid shall be determined by the District’s implantation unit with cooperation from the Parents and/or the agency provider of said services; and
• • The District shall create a bank^[8] of:
• • Forty five periods (45) of SETSS;
• • Twenty (20) hours of Physical Therapy Services Dated: November 2, 2022

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.

Footnotes

[1] When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law §3602-c). The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts related to IESPs, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections of the IDEA and the analogous State law provisions is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]). See, SRO #22-054

[2] A hearing was held across the following dates: May 6, 2022; July 28, 2022; and September 28, 2022.

[3] The recommended related services include occupational therapy (1:1; 2x30) and physical therapy (1:1, 1x30). (Ex. B-5)

[4] NYCRR Part 200.1(zz)(10) Other health-impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student's educational performance.

[5] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).

[6] § 300.148 Placement of children by parents when FAPE is at issue. (a) General. This part does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency must include that child in the population whose needs are addressed consistent with §§ 300.131 through 300.144. (b) Disagreements about FAPE. Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in §§ 300.504 through 300.520. (c) Reimbursement for private school placement. If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs. (d) Limitation on reimbursement. The cost of reimbursement described in paragraph (c) of this section may be reduced or denied (1) If - (i) At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or (ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section; (2) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in § 300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or (3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents. (e) Exception. Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement - (1) Must not be reduced or denied for failure to provide the notice if - (i) The school prevented the parents from providing the notice; (ii) The parents had not received notice, pursuant to § 300.504, of the notice requirement in paragraph (d)(1) of this section; or (iii) Compliance with paragraph (d)(1) of this section would likely result in physical harm to the child; and (2) May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if - (i) The parents are not literate or cannot write in English; or (ii) Compliance with paragraph (d)(1) of this section would likely result in serious emotional harm to the child. (Approved by the Office of Management and Budget under control number 1820-0030) (Authority: 20 U.S.C. 1412(a)(10)(C))

[7] In overruling the District objection to the instant disposition, I remain focused on the fact that the Student has been denied a FAPE for a long time during a short life, and the District has been unresponsive over the course of this case. This is an obvious example of the endemic failures that plague the NYCDOE impartial hearing process. “The failure to promptly resolve due process complaints keeps children in an ‘administrative limbo’ and, for some, delays to free appropriate public education to which they are entitled” Deusdedi Merced, Report External Review of the New York City Impartial Hearing Office, at 18-19 (2019).

[8] The District must pay a provider(s) of the Parents’ choosing at a market rate, at the time the services are provided, to be determined by the “implementation unit” of the District, in consultation with the Parents and/or their provider(s).