New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 570535 - NYC: 224803

FINDINGS OF FACT AND DECISION

Case Number: 224803

NYS Identifier Number: 570535

Student’s Name: REDACTED

Date of Birth: REDACTED

Region: REDACTED

Hearing Requested By: Parent

Date(s) of Hearing: 5/4/22

Actual Record Close Date: 7/30/22

Hearing Officer: Amy Lynne Itzla, Esq.

FINDINGS OF FACT AND DECISION

INTRODUCTION

I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(3), regarding STUDENT The hearing was convened at the written requests of the Parent by letter dated February 28, 2022. (Exhibit A) A hearing was held on May 4, 2022, by video/teleconference, with the presence of a court reporter to create a written transcript. A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision.

In scheduling the hearing date, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]

BACKGROUND

STUDENT was REDACTED years old at the beginning of the 2021-2022 school year and in 10th grade. She had been classified by the Department of Education (“DOE”), through its Committee on Special Education (“CSE”), as a student with a disability. STUDENT has had the diagnoses of Autism Spectrum Disorder, Without Accompanying Cognitive Impairment (Social Communication Level 1, Requiring Support, Restrictive and Repetitive Behaviors, Level 1, Requiring Support); Attention Deficit Hyperactivity Disorder (“ADHD”), Predominantly Inattentive Presentation; Major Depressive Disorder, Recurrent, Moderate; Social Anxiety Disorder; Generalized Anxiety Disorder; and, Specific Learning Disorder in Mathematics. (Exhibits D, E)

The Parent sent a letter to the CSE, dated June 1, 2021, describing STUDENT’s educational history, expressing the belief that STUDENT requires special education services, requesting that the DOE provide her with a Free Appropriate Public Education (“FAPE”), and providing written consent for the DOE to test and evaluate STUDENT for an IEP. (Exhibit B) By letter dated December 23, 2021, to the CSE, the Parent stated that there had been no CSE review following her June 1, 2021, letter and, therefore, no IEP created and no program or placement recommendation made for STUDENT for the 2021-2022 school year. (Exhibit C) In the letter, the Parent notified the CSE that she would be unilaterally placing STUDENT at SCHOOL (“SCHOOL”) for the 2021-2022 school year and seeking reimbursement for the placement from the DOE. She also provided the CSE with a neuropsychological evaluation conducted in June and July 2021 and stated that she was reserving her right to seek reimbursement for the evaluation. (Exhibits D, E)1 By letter dated February 28, 2022, the Parent requested an Impartial Hearing seeking tuition reimbursement for the unilateral placement at SCHOOL, for the period from January 2022 to June 2022, and claiming entitlement to the neuropsychological evaluation conducted in June and July 2021, based on the DOE’s failure to provide a FAPE to STUDENT for the 2021-2022 school year. (Exhibit A)

1 Unless otherwise specified individually, Exhibit D, “Confidential Neuropsychological Evaluation Addendum,” and Exhibit E, “Letter from Dr. REDACTED,” have been referred to collectively as the “neuropsychological evaluation.”

It is noted that, while the Parent reserved her right to seek reimbursement for the neuropsychological evaluation in her letter of December 23, 2021, and the impartial hearing request referred to the Parent being “entitled” to the evaluation, which might be interpreted as a request for reimbursement, the issue was not raised at hearing. The hearing record does not contain any testimony regarding a request for reimbursement for the evaluation, which was conducted shortly after the Parent’s consent to evaluate STUDENT There was no argument made at the hearing pursuing that remedy. There was also no evidence presented to establish that the Parent made a request to the DOE for an Independent Educational Evaluation (“IEE”) at any time to which the DOE refused, resulting in an issue to be determined in this forum.

POSITIONS OF THE PARTIES THE DOE’S CASE The DOE did not offer any documents or witness testimony. At the outset of the hearing, the DOE presented an opening statement that: the DOE would not be presenting a “prong 1 case;” that SCHOOL was not an appropriate placement (prong 2); and, that there may be prong 3 issues that “come up through testimony.” (T. 12)2 The DOE chose to cross-examine two of the Parent’s four witnesses. The DOE’s closing argument challenged the appropriateness of SCHOOL, maintaining that Dr. REDCTED testimony, provided through a sworn affidavit, was not specific to STUDENT, that SCHOOL did not consider the neuropsychological evaluations in creating an individualized program for STUDENT, that there was no documented support for a residential program, and that STUDENT was not in a group setting with a trained clinician to address her social development needs. The

DOE also asserted that STUDENT did not have a counselor during her time at SCHOOL, since the counselor was not a good match for her, although one had been recommended in the neuropsychological evaluation. In addition, the DOE argued that Ms. REDACTED did not specifically observe STUDENT and that the school provided STUDENT with assistive technology although there was no recommendation made for it in the neuropsychological evaluation. The DOE further contended that if there is an order in favor of the Parent, it should be limited to the tuition for the SCHOOL day program, since there was no recommendation for a residential program and it is too restrictive.

The DOE did not raise any argument with regard to equitable considerations that should be a factor in issuing an order in favor of the Parent.

THE PARENT’S CASE The Parent presented the testimony of four witnesses: REDACTED, Dean of Education at SCHOOL; REDACTED, Associate Director of Admission and Academic Advisor at SCHOOL; REDACTED, Chief Finance and Operations Officer at SCHOOL; and STUDENT, STUDENT’s mother.

REDACTED is the Dean of Education at SCHOOL. He provided his direct testimony through a sworn affidavit. (Exhibit O) He was available for cross-examination, but the DOE chose not to cross-examine him. He has worked at SCHOOL for approximately twenty-five years and provided a description of SCHOOL. He testified that SCHOOL is “an independent residential college preparatory boarding school for students with learning disorders. Every student has a diagnosed learning disability range from dyscalculia to higher-order autism spectrum.” He described the admissions process, the mission of the school, the qualifications of the teachers, the training and professional development provided to the teachers, the related services available, and the collaboration and communication with parents. He explained that there are 218 students at SCHOOL, ranging from thirteen to nineteen years of age, in grades 8 through 12. The class size of four to five students allows the teachers to tailor lessons and provide individualized instruction. Each student has an Academic Advisor who is in contact with all of the student’s teachers and is aware of what is going on with the student. Dr. REDACTED outlined a typical day at SCHOOL, including meals, class periods, office hours with teachers, extracurricular activities, free time, and structured study hall time which is managed by faculty who also provide assistance with assignments, if needed. He also described weekend activities.

Dr. REDACTED stated that SCHOOL “addresses students’ pragmatics issues both in the classroom and residentially. The goal of the faculty is to educate in appropriate social strategies in the classroom and on the dormitory floor and have students generalize these skills to everyday social situations.”

REDACTED is the Associate Director of Admission and an Academic Advisor at SCHOOL and provided her sworn testimony during the hearing. She described the school, the daily schedule, the residential structure, and the opportunities for one-on-one help from teachers. (T. 18-22) Ms. REDACTED described STUDENT’s admission process, which included Ms. REDACTED interviewing STUDENT and her family, the head of school interviewing STUDENT and her mom, a three-hour full tour of the school, and many conversations. The process with STUDENT was “extra thorough” since STUDENT was transferring mid-year and the school is careful to ensure that all supports for the student will be in place. During the admissions process, STUDENT’s full neuropsychological evaluation and teacher evaluations from her previous school were reviewed and Ms. REDACTED spoke with STUDENT’s psychiatrist and the dean of students at her previous school. Ms. REDACTED testified that STUDENT’s scores fell within the range of the students at the school. Ms. REDACTED was able to confirm that there were opportunities within the school community that matched STUDENT’s interests. She also believed that STUDENT needed a school with comprehensive academic and residential supports. Based on STUDENT’s “extreme” needs in the area of executive functioning, the school’s small class size, 6:1, “is very specifically catered to students who have these kinds of executive function challenges.” The structure of the school also serves her struggles with time management. STUDENT required support with her activities of daily living which are areas worked on within the dorms. Ms. REDACTED spoke with Dr. REDACTED, STUDENT’s psychiatrist, who “assured me that STUDENT was prepared to be in a residential setting and that that would be an important factor for her.” Ms. REDACTED also used the neuropsychological evaluation in determining the appropriateness of SCHOOL for STUDENT Ms. REDACTED made sure that, since SCHOOL is a college preparatory school, that STUDENT’s academic scores indicated a strong academic match. She also considered STUDENT’s areas of weakness, diagnoses, and the recommendations, to make sure that SCHOOL was a good match based on what the school can provide. (T. 23-30; Exhibit D) Ms.

REDACTED cited the recommendation that “STUDENT may also benefit from explicit teaching, coaching, and practice of social friendship and skills in a group setting with a trained clinician in order to address vulnerabilities in her social development” as an indication that a residential program would be beneficial for STUDENT Based on her independent review of a student’s documents and her interviews with a student and her parents, Ms. REDACTED is able to determine whether a student is an appropriate candidate for a residential program. This is how she determined that STUDENT was appropriate for the residential program. She explained that the dorm counselors work under the supervision of a trained clinician, but the clinician does not work directly with the students in the dorm. The licensed clinician has weekly team meetings with the counselors to review students and provides the counselors with support for how to manage the students. (T. 64-66; 72; Exhibit E) Ms. REDACTED stated that there are day students attending SCHOOL and that there is a difference in the tuition for the day and residential programs. The boarding tuition is $84,450 and the day tuition is $60,500 for the 2021-2022 school year. (T. 66-70; Exhibit G)

Ms. REDACTED explained the unique schedule used at SCHOOL, consisting of nine-terms, with each “term” being a month. The schedule is customized for the students, with different classes lasting for different lengths of time, or terms, from one-term classes to eight-term classes. For the 2021-2022 school year, since STUDENT entered mid-year, her schedule, or “enrollment matrix,” began with the fifth term. Ms. REDACTED explained STUDENT’s matrix in detail. (T. 30-36; Exhibit I) Ms. REDACTED described STUDENT’s strengths, including her superior verbal abilities, discussing intellectual topics, her interest in current events, and her enjoyment of learning. She has a “huge talent in art” and “a strong desire to really have strong friendships.” Her weaknesses include “her executive function challenges, her time management challenges, and peer relations.” Ms. REDACTED described how STUDENT’s areas of challenge manifest in the classroom and outside of the classroom. For example, she does very well with work in the classroom, but her executive functioning struggles are with work outside of the classroom, completing independent work, managing her time, and breaking down her assignments. STUDENT also struggles with getting words out on paper, so assistive technology is helpful for her. Ms. REDACTED stated that it was recommended that STUDENT work in a distraction-reduced environment, which, to her, suggested something like noise-canceling headphones. She has the ability to wear noise-canceling headphones during class, which helps with her distractibility. STUDENT “receives differentiated instruction every day in every class.” She can also get up, walk, and take a break, which helps with her distractibility and ADHD. (T. 36-37; 44-45; 62; Exhibit D)

Ms. REDACTED explained that STUDENT attempted counseling with one of the school’s counselors, but the counselor was not good match for her and that counseling was discontinued. That was the only available school counselor at the time, since STUDENT came late the year. However, STUDENT has a counselor, who is not a SCHOOL faculty member, who she meets with on a weekly basis through Zoom, using Ms. REDACTED’s office. (T. 46; 73)

In terms of her residential needs, STUDENT needs one-to-one check-ins and supervision during the study hall time, which is provided by her dorm counselor. There is also a quieter study hall, the “success center,” for students specifically with executive functioning challenges, which STUDENT was visiting regularly. Through SCHOOL’s online system, resident counselors and teachers can write notes on a daily basis and, since Ms. REDACTED is STUDENT’s Academic Advisor, she reads the notes and everyone is communication including STUDENT Through this system, Ms. REDACTED remains aware of STUDENT’s struggles with daily living skills, along with everything else. STUDENT has had difficulties getting up on time on the morning, being in compliance with the dress code, and not wearing the same clothes multiple days in a row. The dorm counselors, who are trained to work with the challenges of executive functioning and daily living skills, will do multiple morning check-ins, wake-ups, and be physically in the room helping with picking out clothes in the morning, and giving reminders about showers in the evening, for example. There is “a lot of one-on-one interaction” between the dorm counselor and STUDENT has shown improvement in her daily living skills. (T. 39- 42) Ms. REDACTED testified that she has had many opportunities to observe STUDENT in her dorm. Ms. REDACTED is the on-duty faculty member on Tuesday evenings and is stationed in STUDENT’s dorm. She also sees her at lunch every day in the dining hall, frequently in the cafe, in the STEM building, and walking on campus. (T. 50-51)

Ms. REDACTED testified that STUDENT is doing very well in her classes and keeping pace with the curriculum, as reflected in her report card. She has made progress in all areas. (T. 46- 48; Exhibit N) Ms. REDACTED stated that, in her professional opinion, SCHOOL is serving STUDENT’s needs very well. She is receiving supports and differentiated instruction in every class, and supports after the school day in the dorm and on campus. SCHOOL is appropriate for her from an academic and a residential standpoint. She has made meaningful progress academically, socially, emotionally, and in her residential life. (T. 53-54)

REDACTED is the Chief Finance and Operations Officer at SCHOOL. He provided his direct testimony through a sworn affidavit. (Exhibit L) He was available for cross-examination, but the DOE chose not to cross-examine him. He testified that the total amount paid by the Parent to SCHOOL for STUDENT’s attendance from January 13, 2022, to June 3, 2022, was $52,493. That amount represents the Parent’s payment in full and there is no unpaid balance.

STUDENT is STUDENT’s mother and provided her sworn testimony during the hearing. She described the circumstances that led her to look for another school for STUDENT for the second half of the 2021-2022 school year. She stated that:

STUDENT was not doing well at all. She was emotionally going deeper and deeper into depression. She had social anxiety. She was -- her activities of daily living were very poor. She needed to be reminded to basically get out of bed, to brush your teeth, her hair, take a shower, change her clothes, eat. And she had no peer relationships. She had some online relationships with friends from when she was younger, but even children who lived close by, she would not go and see if I took her out of the house, which took a lot of coaxing. She would become uncomfortable, irritable, want to go back home. She was completely disorganized. She was taking different medication for her depression and anxiety and ADHD, but she would, you know, become, like, either sleep all day or have insomnia, was very difficult to manage.

I would say that she had kind of fallen into this place where she felt hopeless, that she didn't really see any prospects for her future. She didn't have any confidence in her ability to do well in school, make friends, be a good daughter, be a good friend, be a good sister. She -- I would say that she was pretty depressed and hopeless, and that presented itself as irritability.

She had an REDACTED. She also -- we went to REDCTED in July, and they said that they would admit her, but she was so REDACTED that they -- as long as I could be with her 24/7, they felt like it would be better for her to be at home because she didn't have enough gumption, frankly, to pursue suicide.

During this period of time, the fall of 2021, she was at the REDACTED School. She was not doing well. The teachers really didn't know what to do with her. She was not completing assignments. She was not participating in class. She was not engaged. She -- when confronted, she would become irritable. She wasn't a behavior problem, but she just would completely zone out, go into herself. They told me they weren't really sure how to get her to do the work. They had been trying different remediations with little success. She was completing very little work. And I don't know what else to say. She just was not doing the work. She wasn't able to engage, and whatever supports they were providing were insufficient.

(T. 77-82)

REDACTED stated that STUDENT has a REDACTED who she interacts with. Other than REDACTED and STUDENT’s sister, STUDENT was not interacting with anyone else, including peers. (T. 82)

REDACTED explained how she decided to send STUDENT to SCHOOL after looking at approximately ten schools, including REDACTED. She was only allowed to physically visit a few of the schools due to Covid restrictions. REDACTED stated that she considered Dr. REDACTED’s evaluation when selecting a school for STUDENT, that he spoke with SCHOOL, and he supported her placement at SCHOOL. (T. 93-96)

REDACTED Further testified that:

I knew that STUDENT needed a lot of academic support that she wasn't getting. And as a result of not having that academic support, she had very low self-esteem. She thought of herself as stupid, as incapable, as, you know, a bad kid because she couldn't learn and expectations were being placed on her that she just could not figure out how to satisfy.

I really -- I felt like I had tried everything. I had -- she had been in the CTT classroom. She had tutors. She -- you know, I felt like I had tried all the different avenues. That she had several neuropsych, you know, evaluations that I tried to -- they just didn't seem to be working, so I started researching schools in New York, and in boarding school settings. And when I spoke to SCHOOL, they work very specifically -- their target population is mostly students with executive functioning difficulties and ADHD, which is STUDENT’s greatest area of struggle. In terms of the residential setting, I found the way that she -- my ability to engage her at home was really compromised, and I thought that having the life coach in the dorm, having the structured activities, they could reinforce what they were doing in the classroom, outside of the classroom, in terms of the structured before school, after school, study hall at night. All the different things that they were doing were things that I felt STUDENT could benefit from because I think it's holistic. Her problem is not just academic.

(T. 83-84)

REDACTED testified that STUDENT has been working with her psychiatrist, Dr. REDACTED, for four years. When the counselor at SCHOOL was not a god match for STUDENT, she resumed seeing Dr. REDACTED for weekly therapy through Zoom. Dr. REDACTED had felt that a residential program would be appropriate for STUDENT, instead of her issues at school and her issues at home being dealt with separately. He felt that “her issues needed to be dealt with in a more holistic fashion, and he felt that a residential program would provide that for her.” (T. 88-91)

REDACTED expressed that, from her overall experience with SCHOOL, she is satisfied that STUDENT is appropriately placed in their academic and residential programs. (T. 92)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C.

§§ 1400-1482) is to ensure that students with disabilities have available to them a Free Appropriate Public Education (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). 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; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir.

2005]).

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 parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). 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 (id.). "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 developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).

The DOE did not present a case to establish that it offered a FAPE to STUDENT for the 2021-2022 school year and, therefore, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parent’s case.

The Parent has the burden of establishing the appropriateness of the program they have provided to STUDENT (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, they must demonstrate that the services provided offer an educational program which meets the student’s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29; Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363; Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105 [2d Cir. 2007]) The standard used to measure the appropriateness of the parent’s placement is “not perfection.” (M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 [2d Cir. 2000]) “The issue turns on whether a placement - public or private- is reasonably calculated to enable the child to receive educational benefits.” (Gagliardo, 489 F. 3d at 112) A parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement. (Carter, 510 U.S. 7 [1993])

I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions. Those who are familiar with STUDENT, including Ms. REDACTED, who was directly involved in STUDENT’s admission to SCHOOL and serves as her Academic Advisor, and REDACTED, strongly agree that SCHOOL’s academic and residential program was appropriate for STUDENT for the 2022 portion of the 2021-2022 school year. The witnesses provided persuasive testimony and supporting evidence to this effect. The testimony provided by the witnesses affirms the appropriateness of the placement and demonstrates that SCHOOL addressed STUDENT’s individual and complex needs and that the academic and residential program was reasonably calculated to allow her to make meaningful progress. In fact, she made meaningful progress through her attendance at SCHOOL in the 2021-2022 school year. The DOE challenged the appropriateness of STUDENT’s placement at SCHOOL by arguing that it was too restrictive, that the neuropsychological evaluation did not recommend a residential program or assistive technology as provided by SCHOOL, that SCHOOL did not consider the neuropsychological evaluation, and that STUDENT did not have a counselor while at SCHOOL. Ms. REDACTED clearly explained the consideration that was given to the neuropsychological evaluation, the reasons for the residential program and assistive technology being appropriate, and that arrangements were made for STUDENT to work with a therapist on a weekly basis through Zoom while attending SCHOOL. In addition, REDACTED testified that Dr. REDACTED spoke with SCHOOL and supported STUDENT’s residential placement there. Dr. REDACTED, STUDENT’s treating psychiatrist for four years, also believed that the combination of the academic and residential programs would be appropriate to address her challenges. There has been no basis alleged for finding any of REDACTED’s testimony to be other than credible in that she discussed STUDENT’s placement with the medical professionals who knew STUDENT and they shared their opinions in support of the SCHOOL residential placement with her. There has been no evidence or testimony presented to rebut any aspect of the Parent's case for the placement at SCHOOL for the 2022 portion of the 2021-2022 school year. I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions.

The final criterion for an award of funding or reimbursement is whether the Parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; 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"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch.

Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that a parent failed to cooperate in the development of the IEP, or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of reimbursement (Application of a Child with a Disability, Appeal No. 04-049).

There were no assertions made by the DOE with regard to any equitable consideration that would preclude an order in favor of the Parent. The record clearly established the Parent’s continuous cooperation and communication with the DOE. There is absolutely no basis on which to reduce or modify the remedy for the Parent.

ORDER

• • The DOE failed to offer a FAPE to STUDENT for the 2021-2022 school year;
• • The Parent’s unilateral placement of STUDENT at SCHOOL’s residential program was appropriate for the 2021-2022 school year;
• • There are no equitable considerations which would reduce or bar an award of reimbursement for the 2021-2022 school year; and, therefore,
• • The DOE shall reimburse the Parent for the tuition and costs paid to SCHOOL in the amount of $52,493 for the period from January 2022 through June 2022 of the 2021-2022 school year. Payment shall be made immediately, since the Parent has already submitted proof of payment to the DOE. (Exhibits L, M).

Dated: August 10, 2022 Amy Lynne Itzla, Esq.

Amy Lynne Itzla, Esq.

Arbitrator

PLEASE TAKE NOTICE

Within 30 days of the receipt of this decision, the parent and/or Board of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act. Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and forms for filing an appeal are included with this decision. Directions and forms can also be found on the Office of State Review website: www.sro.nysed.gov/ appeals.htm

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 4, 2022

redacted

DOCUMENTATION ENTERED INTO THE RECORD

Parent Exhibits

Redacted

2 Citations to the transcript are identified in parenthesis with “T.” and the page number.