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CASE NUMBER: 570483 - NYC: 224759
FINDINGS OF FACT AND DECISION
Case Number: 224759
Student's Name: [REDACTED]
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Requested By: Parent
Date of Hearing: 06/02/2022
06/29/2022
Actual Record Close Date: 07/05/2022
Hearing Officer: Daniel Ajello Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 06/02/2022
(All Parties Appeared Via Teleconference)
For the Student: [REDACTED], ESQ., Attorney
[REDACTED], Parent
For the Department of Education: [REDACTED], ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED ON 06/29/2022
(All Parties Appeared Via Teleconference)
For the Student: [REDACTED], ESQ., Attorney
[REDACTED], Parent
[REDACTED], Program Director at [REDACTED]
For the Department of Education: [REDACTED], ESQ., Attorney
DOCUMENTS ENTERED INTO THE RECORD
PARENT DOCUMENTS
Exhibit
Date
Title
Pages / Entered
A 2/25/2022 Impartial Hearing Request 5 06/02/2022
B 2/25/2022 Amended Impartial Hearing Request 6 06/02/2022
C 6/25/2020 Letter from Parent to [REDACTED] with email confirmation 6 06/02/2022
D 9/11/2020 Letter from Parent to [REDACTED] with email confirmation 6 06/02/2022
E 2/2021 Educational Progress Report 6 06/02/2022
F 2/2021 Speech Language Progress Report 2 06/02/2022
G 2/2021 Occupational Therapy Progress Update 1 06/02/2022
H 2/2021 Counseling Progress Update 1 06/02/2022
I Undated Program Description 2 06/02/2022
J 7/6/2020 Summer Enrollment Contract and Addendum 3 06/02/2022
K 07/01/2021 Related Services Affidavit – Summer 2020 1 06/02/2022
L 07/06/2020 Academic Year Enrollment Contract and Addendum 3 06/02/2022
M 07/01/2021 Related Services Affidavit – Academic Year 2020-2021 1 06/02/2022
N Summer 2020 Summer Program Class Schedule 1 06/02/2022
O 2020-2021 2020-2021 Class Schedule 1 06/02/2022
P 07/01/2021 Affidavit of Administrative Assistant Regarding Tuition 1 06/02/2022
Q
2019
2019 U.S. Individual Income Tax Return
3 06/29/2022
R
2020
2020 U.S. Individual Income Tax Return
3 06/29/2022
S
2021
2021 U.S. Individual Income Tax Return
3 06/29/2022
T 2020-2021 Private School Educational Plan 14 06/29/2022
U 06/22/2022 Affidavit of Testimony of Parent 5 06/29/2022
V 06/22/2022 Affidavit of Testimony of Program Director 9 06/29/2022 HEARING OFFICER DOCUMENTS Entered 06/02/2022
I Notice of appointment, 12/8/20, four pages
Entered 06/29/2022
II Notice of Appearance, 06/10/2022, 1 page
DEPARTMENT OF EDUCATION
Entered 06/02/2022
EXHIBIT
DATE
NAME
PAGES
Excluded Duplicate
4/28/20
IEP
22
4/21/20
Notice of IEP Meeting
3
6/10/20
PWN
6
11/12/19
Psychoeducational
4
2/2020
Speech Progress Report
1
2/2020
Progress Report
5
INTRODUCTION
On 05/20/2022, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.
Hearing commenced on 06/02/2022, to allow the DOE an opportunity to present a defense to the allegations contained in the DPC.
Appended to the record are lists of persons in attendance and the documents received in evidence.
Due Process Complaint (DPC), of 02/25/2022, as amended, alleges a failure of the DOE to provide an appropriate IEP and placement for the 2020/2021 school year. (Ex B)
Parent seeks a variety of forms of relief to remedy the alleged failure, including, funding for unilateral placement (UP), at [REDACTED] (UP), and any related transportation costs. (Ex B)
Parent Attorney later withdrew the relief related to Transportation. (T 30)
THE POSITION OF EACH PARTY
The DOE Attorney set forth the DOE position, at Hearing, of 06/02/2022.
The DOE contends a FAPE was indeed offered the Student, submitted documents seeking to support its position and sought to present a Witness to support its position. (T 14-15)
IHO was told the Witness was not yet available for another hour. The IHO advised the DOE Attorney to contact the Witness to make herself available immediately since there is no valid reason to delay the Hearing. The DOE Attorney reached out to the Witness and was unsuccessful in acquiring an appearance. The IHO reminded the DOE Attorney that they had, and still have, the ability to request a subpoena. (T 14-18)
Parent Attorney set forth the basic Parent position, via Amended DPC. (Ex B)
Parent Attorney presented closing argument, at Hearing, arguing the alleged denial of FAPE, and seeking relief in the form of DOE Tuition funding. (T 40-53)
Parent Attorney supported the Parent’s case via Testimony and Documentary Evidence, each considered below.
[REDACTED], Program Director at UP
Witness Testimony included Testimony via Affidavit (Ex V) and Testimony obtained at Hearing, of 06/29/2022, which included:
- • Student [REDACTED] Reading Class is not a religious class, the point of which is to teach [REDACTED] reading using a phonetic approach (T 36);
- • For [REDACTED] reading a New York State approved text is used (T 37);
- • In [REDACTED] reading class instruction is provided utilizing special education methods and support (T 37); and
- • Behavior plan and other supports are used in [REDACTED] reading. (T 38)
Documentary evidence is considered below, is considered credible, and supportive of the Parent’s position.
A
2/25/2022
Impartial Hearing Request:
Amended via Amended DPC, Exhibit B.
B
2/25/2022
Amended Impartial Hearing Request:
- • Parent alleges the DOE failed to offer the Student a FAPE for the 20-21 school year;
- • Student, for the 20-21 school year, was seven year old, classifies Speech or Language Impairment, diagnosed with apraxia of speech, and has significant receptive and expressive, and pragmatic language and auditory processing challenges that impact her learning and functioning in school;
- • Student has poor frustration tolerance, social emotional challenges, anxiety, and deficits with fine motor and self regulation (Ex B 1);
- • Parent contends the Individualized Education Program (IEP) developed for the Student, on 04/28/2020 (Ex 2), is not sufficient;
- • Allegations of insufficiency relate to failure involving: evaluation; Parental Notice; lack of Parent and school involvement; insufficient services; and insufficient recommendations (Ex B 2-4);
- • Parent reached out to the recommended DOE placement for information, was unable to reach anyone, wrote the CSE for additional information, and received another copy of the IEP (Ex B 4); and
- • Parent seeks funding for appropriate UP for the 20-21 school year (Ex B 5).
C
6/25/2020
Letter from Parent to [REDACTED] with email confirmation:
Parent writes the CSE with concerns regarding the recent IEP and placement recommendation, and notes intent to continue UP placement and seek District funding. Parent notes that she is still considering a Public School placement, and awaits accurate information to make an appropriate placement for the Student. (Ex C 1-4)
D
9/11/2020
Letter from Parent to [REDACTED] with email confirmation:
Parent continues to raise concerns with the 20-21 IEP and placement recommendation, and notes without response to address concerns the UP placement will be made and District funding will be sought. (Ex D 1-4)
E
2/2021
Educational Progress Report:
Describes Student UP Program:
- • class of five students, one teacher and one assistant (Ex E 1).
Details areas of Student special education need:
- • “presents with significant delays in expressive and receptive language, executive functioning, and auditory processing. Additionally, her visual perception and fine motor skills and are weak” (Ex E 1);
- • significant expressive language deficits (Ex E 1);
- • impulsive and easily distracted by noise, sensory stimuli and classmates;
- • has extreme difficulty staying focused during group and one-on-one learning sessions
- • restless and fidgety and frequently touches things in search of sensory stimulation (Ex E 1);
- • anxiety (Ex E 2)
- • impulsivity and extreme difficulty waiting (Ex E 2);
- • social Skills deficits, including fleeting eye contact (Ex E 3); and
- • Reading delay, with a 1st grade level (Ex E 3).
Services and supports to address Student special education needs:
- “requires instructions and directions to be presented slowly, clearly, in manageable chunks and with visual cues so that she can comprehend and carry through. It requires great effort for [REDACTED] to follow multi step direction as she is impulsive and works quickly often before thinking. [REDACTED] is being reinforced for stopping and listening to directions, repeating the direction before starting to do so” (Ex E 1);
- Sensory breaks and materials are offered to her throughout the day (Ex E 1);
- Frequent prompting, redirection and reinforcement for appropriate behaviors are need for Student to learn (Ex E 1-2)
- Small group instruction with multisensory materials, games and activities are used to keep [REDACTED] focused and motivated (Ex E 2);
- verbal praise and a structured behavior modification program (Ex E 2);
- Social Thinking methodology to teach social skills, including prompt to keeps eyes on the speaker (Ex E 3); and
- 1:1 Reading instruction (Ex 3 -4).
2/2021
Speech Language Progress Report:
Student delays are noted as: significant receptive and expressive language delays. Specific areas of weakness include deficits in language processing, short-term memory and word retrieval. Expressively, deficits in syntax; and does not use past tense verbs or irregular past tense verbs correctly and she omits pronouns.
Student also “tends to be impulsive and often demonstrates signs of anxiety. (Ex F 1)
Student goals are detailed, including phonemic awareness skills, which are noted to be improving gradually as Student can now generate rhymes in context with 50% mastery.
Student is recommended to continue receiving speech and language services at the current mandate.
G
2/2021
Occupational Therapy Progress Update:
Student areas of deficit are detailed, including: muscle strength, fine motor skills, body awareness and self-regulation. Student also fatigues easily and has a low frustration tolerance.
Supports include increased activities providing proprioceptive input and heavy work have been implemented in therapy to improve body awareness and self-regulation.
Recommendation is made to continue Occupational Therapy services 2 times a week for 30 minute sessions 1:1.
H
2/2021
Counseling Progress Update:
Deficits are noted, including that the Student “lacks the ability to differentiate between different emotions, aside from happy/sad.”
Therapy is working on expanding Student emotional vocabulary.
Student also lacks proper social skills and could benefit from greater attention being made to her psychological/emotional wellbeing in counseling to help her expand her skills.
Recommendation is made that Student receive an increase in counseling for next year, including group, as her many social deficits continue to be present.
I
Undated
Program Description:
UP is a full time program which includes social services, and related services of Speech, Counseling, Occupational Therapy and Physical Therapy. (Ex I 1)
Students are provided an individualized education plan designed to address student deficits to reach academic and social/emotional goals.
J
7/6/2020
Summer Enrollment Contract and Addendum:
UP Summer 2020 Enrollment Contract amount of $8,000.00. (Ex J 1)
Parent obligated to payment via signature upon contract. (Ex J 2)
K
7/01/2021
Related Services Affidavit – Summer 2020:
Related services cost, related to Speech, Occupational Therapy and Counseling evidenced to be $1,350.00.
L
7/06/2020
Academic Year Enrollment Contract and Addendum:
Tuition evidence evidenced to be $53,500.00. (Ex L 1)
Parent obligated to payment via signature upon Contract. (Ex L 2)
M
7/01/2021
Related Services Affidavit – Academic Year 2020-2021:
Related services cost, related to Speech, Occupational Therapy and Counseling evidenced to be $9,000.00.
N
Summer 2020
Summer Program Class Schedule:
Summer Academic and Related Service Schedule.
O
2020-2021
2020-2021 Class Schedule:
Regular School year Academic and Related Service Schedule
P
7/01/2021
Affidavit of Administrative Assistant Regarding Tuition:
Total Student Tuition Due $71,850.00,with no payment made thus far.
Q
2019
2019 U.S. Individual Income Tax Return:
Parent evidences limited income of: $36,680.00.
R
2020
2020 U.S. Individual Income Tax Return:
Parent evidences limited income of: $43,102.00.
S
2021
2021 U.S. Individual Income Tax Return:
Parent evidences limited income of: $64,784.00.
T
2020-2021
Private School Educational Plan:
UP Educational Plan includes Student goals and supports, including:
- • Writing: Tactile materials, Multi-sensory material (Ex T 1)
- • Math: Interactive games and activities, coins (Ex T 2-3)
- • Behavior / Social Skills: Modeling/role play, Charts/incentives, Social Skills strategies (Ex T 4-5)
- • Reading: Tactile materials interactive games and activities, letter tiles (Ex T 7-9)
- • Speech: Manipulatives, Sequencing Cards (Ex T 10-11)
- • Counseling: roleplaying, modeling (Ex T 12)
U
6/22/2022
Affidavit of Testimony of Parent:
Testimony included:
- • Educational history, of the Student, including being told the Student needed a far more specialized program than a mainstream class with support services, during the 18-19 school year (Ex U 1);
- • The DOE did not hold a timely IEP meeting, for the 19-20 school year, resulting in UP placement (Ex U 2);
- • IEP meeting was held, on 04/28/2020, and Parent was concerned with the recommendations, including a lack of behavior support (Ex U 3);
- • Parent raised areas of concern, with the District and recommended school placement, but was unable to obtain information to address concerns;
- • Ultimately, Student was again enrolled at the UP, for the 20-21 school year;
- • Parent signed enrollment contracts and related service agreements, with the UP, and is responsible to pay the $71,850.00 cost of the UP program, for the Student, for the 20-21 school year;
- • Parent is financially unable to pay the Tuition; and
- • Parent believes the UP serves as an appropriate Student placement, resulting in significant Student progress (Ex U 5).
V
6/22/2022
Affidavit of Testimony of Program Director:
Testimony included:
- • UP Program Director reviewed her qualifications (Ex V 1);
- • General characteristics, of the UP, include:
- • a small, self-contained program for students who are unable to progress in a mainstream setting due to learning disabilities, behavioral difficulties, and social/emotional challenges;
- • About 40 students were enrolled in our program during the 2020-2021 school year. The REDACTED has very small class sizes, with small group and individual instruction;
- • a highly structured program that includes behavior modification programs;
- • a tailor made a program for each individual student based on their behavioral and academic needs;
- • multi-sensory approaches, hands on games and activities to keep students learning and engaged with the materials
- • incorporate social skills instruction throughout the week;
- • Topics in the direct social skills instruction include eye contact, maintaining appropriate proximity, learning how to initiate and maintain conversations, playing games, taking turns, learning how to problem solve in social situations, and perspective taking;
- • counseling, occupational therapy, speech therapy, physical therapy, and Hearing Education Services;
- • All staff members receive continuous training throughout the year through training and workshops provided
- • All professional staff attend professional development workshops which held two times per year (Ex V 1); and
- • Familiarity with the Student (Ex V 2).
- • Student challenges, at the start of the 2020-2021 school year, included: academic skills were delayed and difficulty with learning and retention of skills; significant receptive and expressive language delays, including articulation deficits that needed to be addressed both in the classroom and during speech therapy;
auditory processing skills were deficient, and receptively she needed information presented to her in smaller manageable chunks with multisensory cues and with pre-teaching of all vocabulary so that she could understand and learn; struggled to express herself;
Student tended to speak in very short phrases with errors of articulation and was not always intelligible; Student had a hard time putting her thoughts into coherent sentences; was also very distractible and had a lot of difficulty staying focused, and she could be very impulsive;
- • Student had difficulty with emotional regulation; she tended to be very anxious and would freeze up when unsure of herself. Support included constant support and reassurance that she was doing tasks correctly or she would shut down, and she needed support to help her learn strategies for emotional regulation;
- • Student also presented with social skills deficits and had difficulty interacting appropriately with her peers, which also required support throughout the day;
- • Student presented with weak fine motor and visual perceptual skills that also required support (Ex V 2);
- • In the area of writing, Student had poor visual spatial awareness with difficulty staying in the lines (Ex V 4);
- • To address Student challenges the Student was provided with a very small class that allowed for minimal distractions, very individualized 1:1 and small group instructions, a high amount of support, and continuous implementation of an individualized behavior intervention plan (Ex V 2);
- • Student supports included: Hearing Education Services;
a lot of 1:1 and small group instruction with a lot of multisensory materials and games, as well as sensory breaks and other opportunities for movement, to help her stay focused for learning; needed very structured behavior modification in order to stay focused and learn other appropriate behaviors for classroom and school functioning (Ex V 2);
- • Student attended a self contained class of five total students; with a head teacher; two classroom assistants; at times the head teacher was also a Board Certified Behavior Analyst (BCBA); supervised by a Curriculum Director;
- • Student had an individualized education plan and programming, with goals (Ex T, Ex V 3);
- • Witness details Student performance at the start of the 20-21 school year, at the kindergarten level, for reading, writing, and math (Ex V 3-4);
- • 1:1 reading instruction, with information provided in chunks with continuous reinforcement and multisensory program (Ex V 3)
- • For writing the Student required individual supports such as breaks. Tactile and multisensory materials (Ex V 4);
- • For math Student supports included instruction in a small group of three, substantial repetition and review of earlier foundational skills along with manipulatives and interactive games (Ex V 4-5);
- • Individual behavior supports and emotional support is incorporated, via regulating emotions and staying calm by taking a deep breath and counting to ten (Ex V 5-6);
- • Social skills are addressed with programmatic instruction and incorporating social skills throughout the day (Ex V 6);
- • Speech / Language challenges are addressed via speech language therapy (Ex V 6-7);
- • Witness notes progress in reading (Ex V 3); writing (Ex V 4); math (Ex V 5); and behavior and socially/emotionally (Ex V 6 & 8);
- • Student summer program was provided, as necessary: “because [Student] made less than expected progress towards her goals as a result of the restrictions on in-person learning imposed by the COVID-19 pandemic during the 2019-2020 school year…[Student] was in a class of 6 students who were all around her age…At the end of the 2019-2020 school year, [Student’s] teachers…determined skills that [Student] needed to work on over the summer and crafted an individualized workbook for [Student] of what she needed to work on over the summer…summer program targeted reading, writing, and mathematics skills to move her along with skills she still needed to master from the previous year and to make sure she did not lose academic skills over the summer. A structured behavioral plan was also implemented for her throughout the summer and social skills were emphasized…[Student]…received her related services from licensed therapists...As a result of the supports provided, [Student] was able to continue progressing in her skills and avoided regressing over the summer of 2020 (Ex V 7-8); and
- • Witness believes the UP program was appropriate, for the Student, for the 20-21 school year. (Ex V 9)
Department of Education evidence confirmed the Student need for special education services:
Student IEP classifies Student: Speech or Language Impairment. (Ex 2-1)
Recommendation is made for special education services, and supports, in the form of Special Education Teacher Support Services (SETSS) and Speech Language Therapy. (Ex 2-15)
Student is noted to be functioning at a kindergarten level, in Reading and Math. (Ex 2-20)
Psychoeducational Evaluation confirms Student academic, communication and executive functioning delays. (Ex 5)
Progress Report again confirms areas of Student delay, need for special education services, and progress via the delivered services:.
Student: “…is a sweet and generally cooperative REDACTED-year-old child. She presents with delays in critical thinking and expressive/receptive language skills…demonstrates significant attention deficits as well as memory and learning difficulties. She is currently enrolled in a class of 5 students with 1 teacher, 1 assistant and 1 paraprofessional. A small group is necessary to help [Student] focus as well provide instruction at a level catered to her learning ability.” (Ex 7-1)
FINDING OF FACTS AND DECISION
Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).
Under the IDEA, if procedural violations are alleged, an administrative 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
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 FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).
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, 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]; 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).
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). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; 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"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). 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]mportant 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 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 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" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). 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" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). 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 (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).
DOE offer of FAPE for the 2020-2021 School Year
DOE did not evidence an appropriate IEP or placement, for the Student, for the 20-21 school year.
DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 20-21 school year.
I find the DOE failed to offer the Student a FAPE for the 20-21 school year.
UP Placement for the 20-21 School Year
Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 20-21 school year.
The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. I find that the documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent.
Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex E, F, G, H, I, N, & O, T 36-38)
I find UP provides an appropriate education and program for the Student for the 20-21 school year.
UP provides special education services specifically tailored to meet the needs of the Student.
TUITION FUNDING 20/21 School Year
Parent is entitled to funding for the UP, 20-21, Tuition.
The DOE has denied a FAPE to the Student for the 20-21 school year.
UP Tuition consists of:
Summer 2020 Tuition $8,000.00 (Ex J)
Summer 2020 Related Services $1,350.00 (Ex K)
20-21 School Year Tuition $53,500.00 (Ex L)
20-21 School Year Related Services $9,00.00 (Ex M)
Tuition balance is due of $71,850.00. (Ex P)
With regard to fashioning equitable relief, one court has addressed whether it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so (Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). The court held that "[w]here... parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769 F. Supp. 2d at 428). The Mr. and Mrs. A. Court relied in part on dicta from earlier cases in which similar claims seeking direct retroactive payment to a private non-approved school were asserted (see Connors v. Mills, 34 F. Supp. 2d 795, 805-06 [N.D.N.Y. 1998] [opining that such financial disputes should be resolved within the administrative hearing process]; see also S.W., 646 F. Supp. 2d at 358-60). The Mr. and Mrs. A. Court held that in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs (Mr. and Mrs. A., 769 F. Supp.2d at 430).
Parent provides information relative to their limited financial capability. (Ex Q, R & S)
Parent needs to meet the burden of production and persuasion with respect to whether they have the financial resources to "front" the costs of a unilateral placement and whether they are legally obligated for the student's tuition payments (Application of the Dep't of Educ., 12- 132; Application of a Student with a Disability, 12-036; Application of a Student with a Disability, 12-004; Application of the Dep't of Educ., 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041).
I find Parent establishes an inability to front the costs of Student 20-21 Tuition and await reimbursement.
Parent also in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to direct DOE funding of the UP tuition, for the 20-21 school year.
Considering any religious portion of the Student Tuition, I find the Parent is entitled to direct UP funding as calculated, and Ordered below:
Summer 2020 Tuition $8,000.00 (Ex J)
Less: 1740 minute week / 75 minutes for prayer = 4% = $320.00 (Ex N)
Summer 2020 Related Services $1,350.00 (Ex K)
20-21 School Year Tuition $53,500.00 (Ex L)
Less: 1800 minute week / 60 minutes for prayer = 3% = $1,605.00 (Ex O)
20-21 School Year Related Services $9,00.00 (Ex M)
Tuition balance to be funded, $71,850.00 Less $1,925.00 = $69,925.00
ORDER
- • The Department of Education (DOE) failed to offer the Student a FAPE for the 2020-2021 school year.
- • The DOE shall directly fund Student, 12 month, 20-21 Tuition, at [REDACTED] (UP) in the amount of $69,925.00.
- • The DOE shall provide Parent with any documents or forms necessary to facilitate payment under this Order, within ten days of the date of this Order.
- • 4. This decision is subject to appeal and review by the State Review Officer.
DATED: July 8, 2022
DANIEL AJELLO
DANIEL AJELLO
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.