New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 221360

Student’s Name: REDACTED

(hereinafter referred to as “Student”)

School District: N.Y.C. Dept. of Ed., Impartial Hearing Officer: Teril Holston, Esq. Date of Filing: November 12, 2021 Hearing Requested by: Parent Date of Hearing: July 27, 2022

September 14, 2022

Record Close Date: October 7, 2022

Date of Decision: October 10, 2022

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 29, 2022

For the Student:

REDACTED

Parent: REDACTED

For the Department of Education:

REDACTED

Parent Witnesses:

REDACTED, Director Dr. REDACTED, Psychologist

REDACTED, Parent

NAMES AND TITLES OF PERSONS WHO APPEARED August 4, 2022

For the Student:

REDACTED

Parent: REDACTED

For the Department of Education: REDACTED

INTRODUCTION

This matter comes before the undersigned Hearing Officer at the request of Petitioner, the parent of the student, a REDACTED-year-old school student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”); New York State Education Law; and the New York State regulations.

On November 12, 2021, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) alleging that the District failed to provide the student with a Free and Appropriate Public Education (“FAPE”) for the 2021-2022 school year, in that the District failed it’s Child Find obligation, the IEP program was not reasonably calculated to confer an educational benefit, and the placement was untimely and inappropriate (P-A)1. The Petitioner is seeking tuition reimbursement for their unilateral placement of the student at Private School and the Wilderness Program, private programs not approved by the Commissioner of Education for the education of students with disabilities for the 2021-2022 school year, reimbursement for a private psychological evaluation, and transportation (Id.). Furthermore, the parent alleges that the equities support their claim for tuition reimbursement for the school year at issue (Id.).

In light of the foregoing and as more fully discussed below, I find that a) the DOE failed to meet its child find obligations, b) the DOE failed to meet its burden that it offered the student FAPE for the 2021-2022 school year, c) the Private School offers the student with specially designed instruction sufficient to meet student’s needs, d) the parent is entitled to reimbursement for the psychological evaluation, e) the parent is not entitled to reimbursement for the Wilderness program and c) the equities support the Parent’s.

PROCEDURAL HISTORY

On March 29, 2022, the undersigned was appointed to conduct an impartial hearing.

The parties held a prehearing conference on April 8, 2022 (IHO-I). The compliance deadline was extended four times for settlement negotiations, illness and witness availability on the application, and consent of the parties.

On July 27, 2022, the virtual impartial hearing on the merits of the DPC commenced and concluded September 14, 2022. The record closed on October 7, 2022.

1 Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.

At the hearing, the District’s representative presented documents (Ex. 1- 7) but did not call any witnesses. The documents were admitted into evidence without objection. The District made a brief opening statement, arguing that the District provided the student with a FAPE and the parent’s unilateral placement was inappropriate because it did not fully implement the student’s IEP.

The Parent, through their representative, submitted to documents (Ex. P-A though P-Q)2 in support of the Parent’s case. All of the documents were admitted into evidence without objection from the District. Parent also presented the live testimony of Psychologist, Private School Academic School staff and parent. The Parent rested and the DOE advised that it had no further statement to make or testimony or documents to offer.

Parent’s representative made a detailed closing statement reiterating the relief sought, summarizing the DOE’s failures, including the specific examples supporting the assertions, and linking it to the evidence on record.

FINDINGS OF FACT

After a full review of the record generated at hearing, I make the following findings of fact and determinations:

The student is a REDACTED-year-old classified by the CSE as student with an Emotional Disturbance (DOE-1).

During 2020-2021 school year, the student was attending Specialized Public High School. On March 8, 2021, the student was psychiatrically hospitalized at Hospital after being found REDACTED (P-C). Prior to REDACTED, the student had a history of REDACTED, was currently prescribed medication and seeing a psychiatrist (P-C).

The student remained at Hospital until he was transferred to [REDACTED] Hospital on REDACTED to be REDACTED (P-C; P-D). While the student was hospitalized, the parent contacted the staff at Specialized Public School to inform them that he would be absent and the situation. At that time, parent was not informed about CSE procedures to have the student evaluated. The student remained at [REDACTED] Hospital until March 23, 2021, where he was diagnosed with Major Depressive Disorder, Recurrent Episode, Severe (P-D).

2 A more detailed list of exhibits is attached.

The student was discharged to a wilderness program (P-D; P-J). While the student was enrolled in the wilderness program, the parent was informed by the Specialized High School that the parents had to fill out forms to discharge the student because he wasn’t attending school and his spot would not be saved at the school (Transcript, pg. 65). The parent didn’t learn from the District that the parent could request an evaluation of the student or receive supports for the student (Id.).

The parent obtained a private psychological evaluation of the student in April 2021 (P-B).

The student was also diagnosed with Persistent Depressive Disorder, with intermittent major depressive episodes. Social Anxiety Disorder, Generalized Anxiety Disorder, Attention Deficit Hyperactivity Disorder (“ADHD”, and Parent Child Relationship Problem (P-B). The psychologist also found that the student was very intelligent, with a full-scale IQ score in the very superior range (P-B). However, the student presented with a “large discrepancy between processing speed and general reasoning ability, as well as overall intellectual ability…” which could “create frustration, anxiety, or mental fatigue” affecting learning (P-B). The student displayed a “very strong pattern of social avoidance” (P-B). The student’s executive functioning challenges are exacerbated by his inability to focus and emotional distress (Id.). The Psychologist recommended that the student be placed at a residential therapeutic setting to address his deficits and emotional needs that impede his ability to learn (Id.).

After receiving the evaluation, the parent learned that the student required additional supports in order to succeed in the classroom, and of the District’s obligation to provide those supports and requested a FAPE in June 2021. The student was discharged from the wilderness program on July 7, 2021 (P-J). On July 8, 2021, the parent provided notice of her intention to enroll the student at Private School and would be seeking reimbursement since there still had not been an IEP meeting scheduled for the student (P-G). The student was enrolled in the summer program at Private School, which began on July 9, 2021, which the parent paid (P-K).

An IEP meeting was convened on August 11, 2021 (DOE-1; DOE-2). The IEP classified the student with an emotional disturbance and recommended a 12:1:1 class ratio in a Residential NYSED-Approved Non-Public School for an extended school year with counseling services 2x40:1 and 1x40:5 (Id.). After not receiving a placement, the parent signed a contract with Private School for the 2021-2022 academic school year on August 24, 2021 (P-M). The deferral to central to locate a placement for the student was sent on August 27, 2021 and the prior written notice was sent to the parents on August 28, 2021 (DOE-3; DOE-6).

On October 1, 2021, the parent was contacted by Public Residential School 1 and learned that the school was an all-boys school of 32 total students that could only implement a 6:1:1 class ratio, more restrictive than the 12:1:1 setting recommended in the IEP (P-O). The parent also learned that the school could not provide the rigorous academic program that the student requires, nor could the school meet his emotional needs (Id.). The parent notified the District on November 1, 2021 that she is declining the placement and will continue the unilateral placement until an appropriate placement is found (Id.). It appears from the record that on November 8, 2021, Public Residential School 2 attempted to reach the parent while she was on a plane (P-7).

For the 2021-2022 school year, the student remained at the Private School, where he was placed in a small class setting and received counseling on campus. During the 2021-2022, the student excelled in the residential environment (P-Q).

APPLICABLE LEGAL STANDARD

The Individuals with Disability Education Act (“IDEA”) establishes that students with disabilities are entitled to a free and appropriate education (“FAPE”).3 A “free appropriate public education 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 instruction.”4 In order to demonstrate that a FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.”5 The student's recommended program must also be provided in the least restrictive environment with non-disabled peers.6 The parent seeks tuition reimbursement for the unilateral placement of the student in Private School for the 2022-2023 school year. As set forth in 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 (1985) it is well established that a District may be required to reimburse parents for tuition payment to a private school if the services offered by the District were inadequate or inappropriate, the services selected

3 See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005).

4 Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982).

5 See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206.

6 See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998). by the parents were appropriate under the IDEA, and equitable considerations support the parent’s claim for reimbursement. Thus, consideration of such a claim has been expressed by a three-prong test: (1) was student denied FAPE; (2) the appropriateness of the Parent’s unilateral placement; and (3) a balancing of the equities.

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE7. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."8 “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”9 Further, “an IEP is not a form document” and it should be constructed after carefully evaluating the student.10 The burden of persuasion and proof is by the preponderance of the evidence standard, which requires a finding that the existence of a fact is more probable than not. When the evidence is evenly balanced, the party with the burden loses. The burden of proof at an impartial hearing is on the district, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement11. Accordingly, the burden of production and persuasion is on the District for the first and third prongs and on the Parent for the second prong.

DISCUSSION

The parent first alleges that the District failed to timely evaluate, classify, and provide the student an IEP and such failure denied the student a FAPE. This District failed to present any evidence to challenge the parent’s assertion, and therefore failed to meet its burden.

The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446 F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11

7 20 U.S.C. § 1415[f][3][E][i].

8 Rowley, 458 U.S. at 203.

9 Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 999

10 Id.

11 Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012].

[S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 [D. Conn. 2008], aff'd, 370 Fed. App'x 202 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 CFR 300.111; 8 NYCRR 200.2[a][1], [7]). The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 CFR 300.111[a][1][i]; Forest Grove, 557 U.S. at 245; K.B. v. Katonah Lewisboro Union Free Sch. Dist., 2019 WL 5553292, at *7 [S.D.N.Y. Oct. 28, 2019]; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][1], [7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004]). The "child find" requirements apply to "children who are suspected of being a child with a disability... and in need of special education, even though they are advancing from grade to grade" (34 CFR 300.111[c][1]; see 8 NYCRR 200.2[a][1], [7]; D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. Nov. 18, 2011]). To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children (34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][1], [7]).

Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. Dist. of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [noting that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"]; see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826 F. Supp. 2d at 660; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ., State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]). To support a finding that a child find violation has occurred, school officials must have "overlooked clear signs of disability" and been "negligent in failing to order testing," or have "no rational justification for deciding not to evaluate" the student (Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 [2d Cir. 2018], quoting Bd. of Educ. of Fayette County, Ky. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]; see A.P., 572 F. Supp. 2d at 225). States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los Angeles Unified Sch. Dist. v. D.L., 548 F. Supp. 2d 815, 819 [C.D. Cal. 2008], citing 20 U.S.C.

§ 1400[c][5]). Additionally, a school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's response to intervention program (8 NYCRR 200.4[a]), see also 8 NYCRR 100.2[ii]).

Here, the District did not comply with its child-find obligations. The parent provided the guidance counselor and principal of the student’s REDACTED and resulting hospitalization. The school staff failed to inform the parent that the student could/ should receive supportive services in the school. Instead, school staff pressured the parent to discharge the student from the school and lose his placement at the prestigious Specialized Public School. As explained herein, the hearing record evinces that the student exhibited signs of a disability that the district ignored or that gave the district reason to suspect that the student had a disability and required special education to address that disability. The remedy for such a child find violation would typically be an order for the student to be evaluated, which has already occurred in this matter (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"]).

• • Prong I: FAPE It is asserted in the DPC that the DOE failed to provide the student with a FAPE for the 2021-2022 school year for a number of reasons. As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden. While the District submitted the August 2022 IEP (DOE-1), IEP Minutes (DOE-2), Prior written notice package (DOE-3), psychological evaluation (DOE-4), Vocational Assessment (DOE-5), Deferral to Central Package (DOE-6), and NPS Written Responses (DOE-7) into the record, a review of same offers no explanation as to how the CSE made its recommendation, how the IEP appropriately describes the Student, whether the IEP is meaningfully calculated to confer educational benefit, or whether the schools identified by the District met the student’s needs. Per the parent testimony, the schools that contacted her, well into the school year, could not implement the IEP as written. In short, the District declined to “offer a cogent and responsive explanation for their decisions” in creating that IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”. Endrew F., 137 S.Ct. at 1002. The District failed to provide any defense of the program recommended for the student. Therefore, the undersigned is constrained to find that the District failed to offer the student a FAPE for the 2021-2022 school year.
• • Unilateral Placement In this case, as the District did not offer the student a FAPE for the 2021-2022 school year, the next issue to determine is whether the Parent’s unilateral placement of the student at Private School was appropriate. The Parent argues that the Private School is an appropriate unilateral placement for the student as it provides instruction and services that are specifically designed to meet the student’s unique needs and that enable the student to make meaningful progress there. For the reasons below, the Parent’s unilateral placement was appropriate.

Parents need not show that the placement provides every special service necessary to maximize the student's potential.12 When determining whether the parents' unilateral placement is appropriate, that placement must be “reasonably calculated to enable the child to receive educational benefits.”13 A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student.14

A private school placement must be “proper under the Act”15, i.e., the private school must provide an educational program which meets the student's special education needs.16 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.17 The private school need not employ certified special education teachers or have its own IEP for the student.18 The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement:

“Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral

12. Frank G. v Bd. of Educ., 459 F.3d 356, 364-65 (2d Cir. 2006)

13 Id.; see Gagliardo, 489 F.3d at 115.

14 20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at

188-89.

15 Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370

16 See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129.

17 Carter, 510 U.S. at 14

18 Id. 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.”19

Moreover, where they failed to provide the student with a FAPE, the District is precluded from arguing that the testing, evaluations, or assessments introduced by the Parent’s and utilized by the unilateral placement are not sufficiently comprehensive evaluations of the student’s functioning levels and needs, as it is the District that retains the requirement to comprehensively evaluate the student.20

• • Student Needs In this case, the Parent submitted a psychological evaluation that concluded that the student needs a structured, therapeutic residential program to meet his needs. The District presumably agreed, in that the IEP recommends a small classroom in a residential program. The student is very intelligent and requires a rigorous academic program to stay engaged. The student’s diagnoses directly impair his learning ability, as noted in the psychological evaluation and in the testimony of the psychologist.
• • Program The Private School is a coeducational, residential college preparatory school in Maine with between 100-130 students (P-L). The academic program includes Advanced Placement Honors courses and a Character and Leadership Seminar, of which is important for this student 19 Gagliardi, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65.

20 see 34 CFR 300.305[c]; 8 NYCRR 200.4[b][5][iii]; A.D. v. Bd. of Educ., 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]; see also Application of the Dep't of Educ., Appeal No. 21-194; Application of the Dep't of Educ., Appeal No. 20-131; Application of the Dep't of Educ., Appeal No. 18-125; Application of a Student with a Disability, Appeal No. 180-049; Application of a Student with a Disability, Appeal No. 15-076; Application of a Student Suspected of Having a Disability, Appeal No. 15-038; 17 Application of a Student with a Disability, Appeal No. 14-033; Application of a Student with a Disability, Appeal No. 14-028; Application of a Student Suspected of Having a Disability, Appeal No. 14-003; Application of the Dep't of Educ., Appeal No. 13- 198; Application of the Dep't of Educ., Appeal No. 13-072; Application of a Student with a Disability, Appeal No. 12-027 to make meaningful progress (Id.). The Private School has a social worker on staff, coordinates with the student’s therapist, and provides an advisory group that meets the student’s socio-emotional needs. The school provides a learning support program and a required study hall.

While the student doesn’t offer special education services, the school does have students with IEPs. The school reviews the student’s IEPs and evaluations to inform the instruction provided to the students.

• • Progress With respect to the student’s progress at Private School, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered.21 However, here the student has made both academic and executive functioning progress as evidence in the final report in evidence (P-Q), as well as the testimony of the parent, the Academic Director and Psychologist. When the student enrolled in the Private School, the student was very socially withdrawn, unable to connect with his peers, and not able to advocate for himself which changes by the end of the school year (Transcript, pgs. 23-26). By the end of the year, the student was standing up for himself, and began to come out of his shell, and participated in his academic courses (Id.). The Discovery group really focuses on help the students identify their own strengths and weaknesses, and learn to build confidence and character (Transcript, pgs. 14-15). Specifically, the student was enrolled in pre-calculus and went to the Director and indicated that the course was too easy and was assessed and placed in Calculus (Id. At 35). The Private School coordinated with the student’s outside therapist to ensure the student’s psychological needs were met.

Based on all of the above, the parent has met the burden that the Private School is an appropriate placement for the student for the 2021-2022 school year as required.

The hearing record demonstrates that the student’s individual special education needs were addressed by the private school and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits."22 Of note, the District offered no valid arguments concerning the appropriateness of Parent’s unilateral placement, nor challenged the equities in this action. Further, the District took the opportunity to cross-examine the Parent’s witnesses and did not object to any evidence entered into the record. Under these circumstances, I find that the Parent’s witnesses and documentary evidence are credible.

• • Equitable Considerations Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.”23 “With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise 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 (20 U.S.C. § 1412 [a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may also be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice 10 business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense."24 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."25 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

23 Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374).

24 20 U.S.C. § 14129(a)(10)(C)(iii)(I); see 34 CFR 300.148(d)(1)

25 Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004). provision.26 Parents of students enrolled in private school are not exempted from 10-day notice requirements.27 The Second Circuit has recently reiterated that "[t]he ten-day notice requirement gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections—all before the parents enroll their child in a private school and file a due process complaint" and that "if parents unreasonably reject the school district's proposed changes to the IEP, or are otherwise uncooperative, courts and hearing officers are fully empowered to deny them reimbursement"28

However, the hearing officer must excuse the failure to provide timely notice if, in her discretion, she determines that the reason for the lack of timely notice is that the school district prevented the parents from providing the notice, the parents had not received the procedural safeguards notice advising of the requirement to provide notice, or compliance with the notice requirement would likely result in physical harm to the student.29 In the instant case, the parent provided the necessary Ten-Days’ Notice of their concerns with the District’s offer of a FAPE for the student for the 2021-2022 school year on July 8, 2021, after requesting an initial evaluation on June 15, 2021(P-E; P-G). Therein, the parent detailed her specific concerns with the recommendations and provide notice of their intention to unilaterally place the student (Id.). The District did respond and convene an IEP meeting and determining the student required a 12-month program but did not refer the student for a school placement until August 27, 2021 (DOE-7). The hearing record does not include any evidence that the District ever provided an appropriate school placement for the student for the 2021-2022 school year.

An IHO is not limited to consideration of the statutory equitable factors. See J.T. v. Dep’t of Educ., State of Hawaii, 72 IDELR 95 (D. Haw. 2018). Thus, I also consider the District’s conduct in failing to provide the parent with a school placement to implement the IEP. The District had an opportunity to develop an appropriate program that did not require private placement and failed to do so.

26 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., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

27 S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-63 (S.D.N.Y. 2009).

28 Bd. of Educ. of Yorktown Cent. Sch. Dist. v C.S., 990 F.3d 152, 171 (2d Cir. 2021).

29 See 20 U.S.C. § 1412(a)(10)(C)(iv); 34 C.F.R. § 300.148(e)(1)

By way of relief, Parent seeks reimbursement for their private school tuition costs and to have the balance of unpaid tuition sent directly to the schools. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. See e.g. Mr. and Mrs. A. v.

New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”). The parent testified that she cannot bear the burden of the tuition costs for the Private School alone. I find that the unilateral tuition costs, $67,300, exceeds the Parent’s ability to fund and await reimbursement. Equity demands that the DOE fund Student’s Private School tuition in this instance.

In balancing the equities, I find in favor of the Parent. To the extent possible, the Parent has participated in all aspects of the special education process. I find no issue with the reasonableness of the costs, including tuition, associated with the Private School and the Student was enrolled in the 2021-2022 school year (P-A).

CONCLUSION

Based on a review of the record and the findings mentioned above, the undersigned makes the following findings:

• • The District failed to meet its “Child Find” obligations, and as such the parent is entitled to an evaluation of the student.
• • The District failed to provide the student with a FAPE during the 2021-2022 school year.
• • The parent’s unilateral placement at Private School was appropriate and equitable considerations support an award of full tuition reimbursement and direct funding for the 2021-2022 school year.
• • The hearing record does not indicate that the parent is entitled to reimbursement for the wilderness program. In contrast to the Private School, the parent provided no information about the wilderness program other than a progress report for the student.30 Therefore, the undersign is constrained to find that the parent failed to meet their burden and the wilderness program is not an appropriate unilateral placement for the student.

30 S.B. v NY City Dept., 2022 US Dist LEXIS 158517 [SDNY Sep. 1, 2022]

• • In the DPC, the parent indicated a desire for transportation and related expenses for the student and parents to and from the wilderness program, and to and from the Private School (P-A). However, the parent offered no testimony or evidence to support such a request. The parent provided no receipts, bank or credit card statements, tickets or any other information to indicate the costs or method of transportation used. As such, the undersigned declines to award any reimbursement for transportation.31
• • The undersigned has reviewed the parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDER

IT IS HEREBY ORDERED that the New York City Department of Education shall directly pay Private School the balance for all tuition and fees for the student’s unilateral placement at Private School for the 2021-2022 school year in amount not to exceed $55,800, within 25 calendar days of this Order. For the purposes of this Order, I find the evidence submitted in Petitioner’s Exhibit K to be adequate proof of balance owed entitling Petitioner to immediate reimbursement. Furthermore, I find that the District has already been provided with adequate proof via this proceeding and so the District shall directly pay the Private School within 25 calendar days from the date of this decision without any action on the part of Petitioner.

IT IS HEREBY ORDERED that the New York City Department of Education shall directly reimburse the parent for all tuition and fees paid for the student’s unilateral placement at Private School for the 2021-2022 school year in amount not to exceed $11,500, within 25 calendar days of this Order. For the purposes of this Order, I find the evidence submitted in Petitioner’s Exhibit K to be adequate proof of payment made by Petitioner entitling Petitioner to immediate reimbursement. Furthermore, I find that the District has already been provided with adequate proof via this proceeding and so the District shall reimburse Petitioner within 25 calendar days from the date of this decision without any action on the part of Petitioner.

IT IS HEREBY, ORDERED, that the New York City Department of Education is directed to fund the psychological evaluation obtained on April 28, 2021, by issuing payment directly to the provider within thirty (30) days of the submission of copies of the invoices for such evaluation at a rate shall be capped by the lowest amount the DOE’s Implementation Unit has paid for substantially similar services to the same providers during the twelve months preceding the date of this decision, or if it has not paid the same providers within the preceding twelve months, what it has paid for substantially similar services to similar providers during the twelve months preceding the date of this decision.

DATED: SO, ORDERED

10/10/2022 /s/ Teril Holston

Teril Holston, Esq., IHO

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.

IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD

I, Teril Holston, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record are either the original or a true copy of the original materials that were provided to me in this matter.

DATED: CERTIFIED BY

10/10/2022 /s/ Teril Holston

Teril Holston, Esq., IHO

EXHIBITS

IHO Exhibits

District’s Exhibits

EXHIBIT

DATE

DOCUMENT

PAGES

1

August 11, 2021

IEP

29

2

August 11, 2021

IEP Meetings

2

3

August 28, 2021

Prior Written Notice Package

4

4

April 28, 2021

Psychological Evaluation

30

5

July 21, 2021

Vocational Assessment

2

6

August 27, 2021

Defer to Central Package

5

7

September 29, 2021

NPS Written Responses

11

Parent’s Exhibits

EXHIBIT

DATE

DOCUMENT

PAGES

A November 11, 2021 Due Process Complaint 8

B April 28, 2021 Psychological evaluation by REDACTED 30

C 3/9/2021- 3/12/2021 REDACTED Hospital Records 42

D 3/12/2021- 3/23/2021 REDACTED Hospital Records 50

E June 15, 2021 FAPE Letter 3

F June 29, 2021 Proof of Delivery for FAPE Letter 3

G July 8, 2021 Ten Day Notice 2

H October 11, 2021 REDACTED Report Card 1

I

August 11, 2021

IEP 29 J 3/23/21- 7/7/2021 Second [REDACTED] Transcript 5

K

September 3, 2021

Financial Affidavit

1

L

2021-2022

School Program Information

3

M

August 24, 2021

School Contract

4

N

2021-2022

School Schedule

1

O

November 1, 2021

Site Visit Rejection Letter

1

P

November 16, 2021

Proof of Delivery of Site Rejection Letter

1

Q

June 9, 2022

REDACTED School Report Card

STUDENT v. SCHOOL DISTRICT

REDACTED

21 Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 (1st Cir. 2002)

22 Frank G., 459 F.3d at 364.

31 Appeal of a Student with a Disability 20-114.

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Footnotes

[1] APPENDIX A – PERSONALLY IDENTIFIABLE INFORMATION