New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 571551- NYC: 225542

FINDINGS OF FACT AND DECISION

Case Number: 225542

Student’s Name: REDACTED

School District: N.Y.C. Dept. of Ed.,

Home District # REDACTED

Service District # REDACTED

Impartial Hearing Officer: Dr. Oren Varnai, Esq.

Date of Filing: 03/30/2022

Hearing Requested by: Parent

Dated of Hearing: 7/28/2022

Record Close Date: 9/1/2022

Date of Decision: 9/1/2022

NAMES AND TITLES OF PERSONS WHO APPEARED AT THE DUE PROCESS HEARING:

For the Student:

• • REDACTED, Esq. for the parent, (hereinafter referred to as “Parent’s attorney”)
• • REDACTED, parent, (hereinafter referred to as “the Parent”).
• • REDACTED, Educational Director for REDACTED, (hereinafter referred to as “Educational Director”).

For the Department of Education (“DOE”):

• • REDACTED appeared on behalf of the DOE, (hereinafter referred to as “District’s Representative”).
• • REDACTED, DOE School Psychologist, (hereinafter referred to as “School Psychologist”).

Glossary of Redacted Information

Private School - REDACTED

Public School - REDACTED

NEW YORK CITY OFFICE OF ADMINISTRATIVE

TRIALS AND HEARINGS (OATH)

SPECIAL EDUCATION HEARINGS DIVISION

REDACTED, a Minor, by and through his/her Parent(s),

PETITIONER FINDINGS OF FACT AND DECISION

against Case # 225542 THE NEW YORK CITY Dr. Oren Varnai, Esq.

DEPARTMENT OF EDUCATION, Impartial Hearing Officer

RESPONDENT

FINDINGS OF FACT AND DECISION

I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State Regulations at 8 NYCRR § Part 200, et seq, as well as Section 504 of the Rehabilitation Act.

The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statutes which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with his objectivity to hear this matter.

II. Background and Procedural History

Petitioner (Parent) is the parent of Student (“Student” or “Child”). On 3/30/2022, Petitioner filed a Due Process Complaint (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”). Parent alleged that the District failed to provide the Student a free appropriate public education (“FAPE”) for the 2021-2022 school year, by, among other things, failure to timely convene a CSE meeting, failure to provide Student with a placement, and refusal to provide Student with an Individualized Education Program (“IEP”) instead of an Individualized Education Service Program (“IESP”).

During the 2021-2022 school year, the year in which Parent filed the DPC, Student was REDACTED years old who and classified as a student with Speech or Language Impairment.^[1]

The undersigned IHO was appointed on June 9, 2022, and a Pre-Hearing Conference was held on June 28, 2022. A Due Process Hearing (“DPH”) took place on July 28, 2022. The DOE presented the testimony of School Psychologist, and Parent presented the testimony of Parent (through a REDACTED translator present) and Educational Director of Private School.

III. Finding of Facts and Decision

• • FAPE (Burlington/Carter Prong I)
• • Applicable Standards The IDEA (20 U.S.C. §§ 1400-1482) contemplates two specific purposes designed to ensure (1) 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) that the rights of students with disabilities and parents of such students are protected.^[2] 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.^[3]

A free and appropriate public education can be said to be 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.^[4] "[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."^[5] The Supreme Court ruled that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement."^[6]

"Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not,"^[7] and the Second Circuit explained that not all procedural errors render an IEP legally inadequate under the IDEA.^[8] Under the IDEA, if procedural violations are alleged, an IHO 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.^[9]

An IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE.^[10] A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction,"^[11] but the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."^[12] "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,"^[13] and an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents,"^[14] is what is required. School districts are not required to "maximize" the potential of students with disabilities,^[15] but are required to provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement.'"^[16] The IEP must be "reasonably calculated to provide some 'meaningful' benefit,"^[17] and designed to be provided in the least restrictive environment (“LRE”).^[18] An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance,^[19] and outlines annual goals specifically designed to address the Student’s needs resulting from his disability in order to make progress in the general education curriculum^[20] through the use of appropriate special education services.^[21] Although not every student can be expected to attend a regular education curriculum, the IEP “must be appropriately ambitious in light of his 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."^[22]

• • CSE Constitution Parent’s claim that the CSE did not include a qualified District Representative^[23] in conformity with 8 NYCRR §200.3(a)(1) is not supported by the evidence. Pursuant to 8 NYCRR §200.3(a)(1)(v):

“a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, provided that an individual who meets these qualifications may also be the same individual appointed as the special education teacher or the special education provider of the student or the school psychologist.” (Emphasis added.)

DOE’s witness School Psychologist testified he was at the CSE meeting, and his signature is affixed to the IESP.^[24] Therefore, I find that the DOE complied with the procedural requirements, and the CSE was validly constituted.

• • Public School Placement Parent’s claim that the IESP “fails to provide [Student] with a full-time special education program and public-school placement”^[25] must be rejected. The testimony and facts surrounding the Student’s CSE meeting make it clear that the Parent specifically requested that an IESP be developed because Student was to remain in Private School for the entirety of the 2021-2022 school year; an IEP is designed for students attending a DOE school. Although Parent alleges that the DOE refused “to develop an IEP and to offer a public-school placement,”^[26] according to School Psychologist, he believed that the CSE meeting was for the purposes of creating an IESP because he understood that was Parent’s wish before the CSE meeting.^[27] Nevertheless, School Psychologist went further to confirm Parent’s wishes during the CSE meeting:

“I just want to say the discussion for IEP to an IESP and, you know, for the parent to make a decision, whatever was a very open, was very slow discussion. It was very, as, I think I repeated myself in sense of going through IEP to IESP, so the parent should understand. The parent, you know, whatever, and I -- I said to the parent, whatever you would like, I will do, you know, I had no problem doing an IEP and making a program recommendation. The parent asked me to make the decisions for her. PERSONALLY, she said, you know, what do you think I should place in 5 and for that [unintelligible] [00:52:46] I said -- I can't -- that's not, I can't do that. It's not, you know, not in my realm, so we were open to whatever the parent wanted, but we can't, you know, we -- we can't make that decision for the parent.”^[28] In addition, the meeting minutes mirrored School Psychologist’s testimony that there was a discussion as to whether an IEP or IESP would be created, and that it was Parent who reiterated her wishes:

“Due process safeguards were explained to parent. The difference between an IESP and IEP was discussed. IEP is for a public school. [School Psychologist] explained that parent placed student in a private school. The IESP was given as student is in a private school. Parent was asked if she would like an IEP or an IESP. Parent reports that she is thinking about it and she is thinking about removing student from the school she is at and placing her in a public school where she was before. Parent was advised by School Psychologist that he can not [sic] tell her where to place the child that is up to the parent. Parent has advised to make the decision. Parent was not sure if she is keeping student at [Private School]. Parent stated that she will keep student at her current school [Private School] for the 3rd grade. [School Psychologist] advised that an IESP will be created for student.”^[29] The fact that the DOE made its determination with respect to developing an IEP or IESP based entirely on Parent’s choice to keep Student at the Private School is further buttressed by School Psychologist’s explanation he provided Parent during the CSE meeting with respect to the program that could be created in an IEP had Parent wished a placement:

The IEP, explained the IEP is for public schools, individual educational program, which means that for, if eligible for education services, we recommend a program or class size called on the spectrum or kind of the -- of least restricted environment that your class sizes from general education to come in more restricted to an ICT class that has teachers, 1 special ed, 1 general ed, to what we call a self-contained class and 12 students, teacher or 12 students, teacher, and a [sic] aid that doesn't go on the general education curriculum track, to more restricted environments in specialized schools with 12 students ratio, 8 students ratio, and 6 students ratio depending on the disability of the students. Services for the children are also offered for an IEP, but it has a program with that of an IESP, since it's a parental place [sic] for student and we don't really control the class size or the class, you know, the class that the student goes to. So we -- we -- the state and the New York City then offer services to the student, not -- not a program, to the student and that normally a student who is in a private school to receive services such as speech services, occupational therapy, physical therapy services, especially if just support, you would need an IESP to -- to obtain those services where IEP would be for public school and that track, this is a general overview of what I explained the difference between that.”^[30]

Finally, Parent’s DPC asserts that “[d]uring the November 2021 CSE review, [Student’s] parent was not informed that the creation of a services plan could result in a waiver to FAPE, impeding the parents’ participatory rights,”^[31] which all but conceded that Parent did ask for an IESP to be created because she intended to keep Student at the Private School.

I find School Psychologist’s testimony persuasive and credible, that the CSE developed an IESP based on Parent’s stated wishes to keep Student at Private School. Parent unilaterally placed Student in Private School, communicated with the CSE that the Student would remain in that school before the CSE meeting, and affirmatively requested an IESP instead of an IEP. Therefore, I find that the CSE complied with the dual enrollment requirements of Educ. Law § 3602-c.

• • Initial Evaluation Timeline Although the DPC alleges that Student “first began receiving services under the auspices of the district’s Committee on Preschool Special education,”^[32] there is no evidence that Student was previously classified as a student with disability, and there appears to be no claim that the evaluation in question was improper as an initial one. In fact, Parent’s attorney’s closing brief acknowledges that this was an initial evaluation,^[33] refers to Parent’s consent for the evaluation, cites New York State regulations for initial evaluations,^[34] and asserts that the “district was required to complete the referral process by October 1, 2021.”^[35] In the DPC, Parent alleges that that, as of August 18, 2021, Parent “had yet to meet with the CSE for development of an IEP,”^[36] and that “CSE failed to provide [Student] with a timely and appropriate public-school placement for the 2021-2022 school year.”^[37] Parent’s argument seems to focus on having an IEP for Student at the beginning of the school year, but does not allege the requirements in Educ. Law § 4401-a[1], [3]; 8 NYCRR 200.4[a][1][i]; [a][2][ii]-[iv], which set forth the timelines for initial evaluations and implementation of an IEP. This tension between two competing requirements had to have been resolved in the DPC, ab initio.

Parent’s attorney’s closing brief was the first instance whereby Parent alleged non-compliance with 8 NYCRR §200.4[e][1], which requires the DOE to evaluate the Student within 60 calendar days of obtaining parental consent for an initial evaluation. The only reference to “timeliness” in the DPC relates to the CSE’s failure to offer a procedurally valid and substantively appropriate education program and placement recommendation.^[38] Although non-precedential, Appeal No. 21-204 is directly on point, whereby the State Review Officer (“SRO”) found that an IHO should not consider a claim when “[t]he parent's due process complaint notice does not include allegations that the district failed to complete an initial evaluation within 60 days of receipt of parental consent, or that the district failed to arrange for appropriate special programs and services within 60 school days of the receipt of consent to evaluate.”^[39] “When a matter arises that did not appear in a due process complaint notice, the next inquiry focuses on whether the district, through the questioning of its witnesses, "open[ed] the door" to the issue under the holding of M.H. v. New York City Department of Education (685 F.3d at 250-51).”^[40] Here, the DOE contested all of the circumstances surrounding the DPC, but never opened the door with respect to the timelines for initial evaluations. “Accordingly, child find and the timeliness of the district's provision of special education […] are outside the scope of the impartial hearing (see B.P. v. New York City Dep't of Educ., 841 F. Supp. 2d 605, 611 [E.D.N.Y. 2012] [explaining that [t]he scope of the inquiry of the IHO, and therefore the SRO..., is limited to matters either raised in the... impartial hearing request or agreed to by [the opposing party]]."^[41] The DPC did not directly address the 60-day timeline as envisioned under New York Law, and I find that the DOE was not on sufficient notice that the issue would be raised in the context of a Due Process Hearing. In addition, since Parent’s closing brief was the first instance the 60-day timeline was raised (whether be it ‘calendar days’ for evaluation, or ‘school days’ for provision of services), IHO did not have the opportunity to ask clarifying questions from the Parties or witnesses, elucidate documentary evidence, and pinpoint the precise day 60-school days elapsed from the date of Parent’s initial consent. This issue, however, warrants discussion as it presents additional challenges to Parent’s case even if I were to find that it was properly raised in the DPC.

It is uncontested that Student was initially referred to the CSE for evaluation on June 3, 2021,^[42] and that the Parent consented to the evaluation on June 8, 2021.^[43] School districts are required to have a written IEP in effect for each child with a disability by the beginning of the school year, 20 U.S.C. § 1414(d)(2)(A), and, in New York State, the school year begins annually on the first day of July. See N.Y. Educ. Law § 2(15). Thus, failure to provide a written IEP by July 1 constitutes a substantive denial of FAPE.”^[44] In this case, however, since the Student was first referred to the CSE for evaluation on June 3, 2021, it would be unreasonable to expect the DOE to have an IEP in place by July 1, and this expectation would be at odds with the requirements outlined in 8 NYCRR §200.4[e][1], which sets out the timeline to conduct an initial evaluation of a Student, and the implementation of an IEP and services. I find that the caselaw on the issue does not control in the instant case because when a student is in the process of being initially evaluated, the expectation to have an IEP in place in the beginning of the school year must take into account that the process takes time. This is precisely the reason 8 NYCRR §200.4[e][1] exists—to give the District a timeline for what is legally required.

Once Parent consented to the Student’s evaluation on June 8, 2021, the DOE was required to initiate an individual evaluation of a student.^[45] Once a referral is received by the CSE, the CSE must immediately provide the parents with prior written notice, including a description of the proposed evaluation or reevaluation and the uses to be made of the information.^[46] Within 10 days of receipt of the referral, the CSE must request the parent's consent to initiate the evaluation of the Student,^[47] and following parental consent, the "initial evaluation shall be completed within 60 days of receipt of consent."^[48] "Within 60 school days of the receipt of consent to evaluate for a student not previously identified as having a disability... the board of education shall arrange for appropriate special programs and services."^[49] A "school day" is defined as "any day, including a partial day, that students are in attendance at school for instructional purposes."^[50] The request for initial referral of Student was made on June 3, 2021.^[51] Parent’s consent to the evaluation was dated June 8, 2021.^[52] Parent’s Ten-Day Notice^[53] (“TDN”) was dated August 18, 2021. Under 8 NYCRR §200.4(b)(7), “[t]he initial evaluation to determine if a student is a student with a disability must be completed within 60 days of receiving parental consent for the evaluation.” According to this timeline, the initial evaluation should have been completed by August 7, 2021. However, for purposes of arranging services and convening an IEP, 8 NYCRR §200.4(d) reads that “[f]or a student not previously identified as having a disability, the committee on special education shall provide a recommendation to the board of education, which shall arrange for the appropriate special education programs and services to be provided to the student with a disability within 60 school days of the receipt of consent to evaluate.” (Emphasis added.)

Under IDEA a "school day" means "any day, including a partial day that children are in attendance at school for instructional purposes."^[54] In New York State, however, in the months of July and August, a school day is defined as every day except Saturday, Sunday, and legal holidays.^[55]

IHO takes judicial notice of the NYC DOE school year calendars for 2020-2021^[56] (the school year when the initial referral was made) and 2021-2022.^[57] There were 13^[58] school days in the month of June 2021 (following Parent’s initial consent of June 8, 2021), 21^[59] school days in July 2021, 22^[60] school days in August 2021, and 13^[61] school days in September 2021. This would mean that the 60 school day deadline for the CSE to “arrange for the appropriate special education programs and services” pursuant to 8 NYCRR §200.4(d) would fall on September 17, 2021, a month after the Parent sent the TDN of the intent to unilaterally place Student.

Even if I were to find that Parent alleged DOE’s deficiency with respect to the timelines for evaluation and services in the DPC—and I do not—Parent enrolled Student in a private school prematurely for a finding that the DOE should fund the unilateral placement. In addition, Educational Director from the Private School testified that Parent contacted her to discuss Student’s enrollment in July 2021,^[62] which would further buttress DOE’s position that Parent intended all along to enroll Student in Private School and request an IESP instead of an IEP. This fact relates both to the provision of FAPE with respect to what DOE was required to do, as well as to the equitable considerations, discussed infra. Further, Parent’s decision to seek out a Private School roughly a month after the initial referral for evaluation could not be construed as giving the CSE an opportunity to develop an IEP or arrange for the special education program within the 60-school days or the 60-calendar days for it to complete its evaluations.

I do find that the CSE failed to complete all of the evaluations necessary by the end of the 60-calendar day timeline, and per Parent’s Attorney’s closing brief, the “CSE conducted 3 out of the 4 [] assessments/evaluations”^[63] in a timely fashion, and that the final evaluation (Speech and Language) was not completed until August 24, 2021, in violation of the applicable standards.^[64]

As noted above, the Second Circuit made it clear that the District must comply with the procedures for the development of an IEP and articulated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not."^[65] Further, not all procedural errors render an IEP legally insufficient under the IDEA.^[66] If procedural violations exist, an IHO 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.^[67]

I find that the procedural failures in this case did not impede the student's right to a FAPE, or significantly impede the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student as the Parent was fully engaged. The failures also did not cause a deprivation of educational benefits because the Parent intended to enroll Student in the Private School before the 60 calendar days for an initial evaluation lapsed. In other words, educational benefits could not have been deprived if they were not yet due. Also, the 60-school day timeline for implementation of the services had not yet elapsed when Parent sent the TDN.^[68] I find that the Parent communicated to the CSE that the Private School was Student’s permanent school for the 2021-2022 school year before the school year began. This does not absolve DOE from its failure to conduct the CSE meeting in a timely fashion, but I do not find that this failure amounted to a denial of a FAPE.

In Lesesne v. District of Columbia,^[69] the court held that IDEA claim is viable only if those procedural violations affected the student's substantive rights, and quoted Kuvant v. District of Columbia^[70] which held that “although [District] admits that it failed to satisfy its responsibility to assess [the student] for IDEA eligibility within 120 days of her parents' request, the [parents] have not shown that any harm resulted from that error." In New York, Parent does not have any burden to show that harm resulted, but I find that the DOE has met its burden that no harm resulted. Further, "only those procedural violations of the IDEA which result in loss of educational opportunity or seriously deprive parents of their participation rights are actionable."^[71] I find only procedural defects in this case.

Finally, the Second Circuit explained that Parent’s "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement,”^[72] and that a District's ability to implement an IEP may not be speculative with regard to "prospective challenges to [the assigned school's] capacity to provide the services mandated by the IEP."^[73] As indicated in Appeal No. 22-068 “[i]n order for such challenges to be based on more than speculation, a parent must allege that the school is "factually incapable" of implementing the IEP.”^[74] Although this speculation relates to equities as well, it warrant discussion for purposes of the provision of FAPE as well.

In this case, not only was there speculation that the DOE would not adhere to the IEP, there was no IEP because the TDN was sent before the conclusion of the 60 school days to design one. Parent’s actions were more than merely speculative; they were premature and did not afford the DOE the opportunity to provide Student with a placement even if Parent did not intend to permanently place Student at the Private School for the 2021-2022 school year. Thus, although the district may have made some procedural missteps in the process of engaging in educational planning for the student, any procedural violations did not impede the student's right to a FAPE, significantly impede the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or cause a deprivation of educational benefits.^[75]

Although I have found that the DOE provided Student with a FAPE for the 2021-2022, I will address the other prongs of Burlington/Carter below to complete the analysis for why Parent would not be entitled to tuition reimbursement even if FAPE were denied.

• • Appropriateness of Unilateral Placement (Burlington/Carter Prong II)

A private school placement must be "proper under the Act."^[76] This means that the private school must offer an educational program which met the student's special education needs.^[77] Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate."^[78] 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.'"^[79]

Parents need not show that the placement provides every special service necessary to maximize the student's potential, and 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."^[80] A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student.^[81]

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.^[82]

Parent’s exhibits E outlines Student’s Behavior Intervention Plan (“BIP”); exhibit F recites Student’s progress report; exhibit G is the speech and language progress report; exhibit H is the counseling progress report; and exhibit I is the end of year progress report. Student appears to have made progress in these domains. Exhibit L is the daily schedule for Private School, and exhibit P is Educational Director’s affidavit, which coupled with her live testimony,^[83] outlines the school program, class size, available educational resources, and teacher qualifications.

Based on the evidence presented at the hearing I find that Parents would have met their burden in proving that the private program offered an educational program which met Student’s need under Prong II of the Burlington/Carter standard.

In reviewing the testimony and documents presented, the weight of the evidence establishes that 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."^[84]

• • Equities (Burlington/Carter Prong III)

Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant."^[85] In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect.^[86]

Although I have found that the DOE did provide the Student with a FAPE, even if it had not, I find that the equities do not favor the Parent. As outlined above, Parent provided the necessary TDN of the concerns with the DOE’s offer of FAPE for the Student for the 2021-2022 school year on August 18, 2021.^[87] The 60 calendar day timeline from the initial consent date of June 8, 2021^[88] to evaluate Student elapsed on August 7, 2021. Although the District failed to procedurally comply with 8 NYCRR §200.4[e][1], it still had time until September 17, 2021 to design and implement and IEP pursuant to 8 NYCRR §200.4(d). I do not find that the Parent’s unilateral placement was justified because the DOE was still in the process of designing and implementing an IEP and DOE would have been in compliance with State law until September 17, 2021.

Educational Director from the Private School testified that Parent contacted her to discuss Student’s enrollment in July 2021,^[89] roughly a month after the initial referral for Student’s evaluation. This cannot be construed as giving the CSE an opportunity to develop an IEP or arrange for the special education program within the 60-school days or the 60-calendar days for it to complete its evaluations. At the time Parent sought out and decided to enroll Student in Private School, the DOE had not failed to implement and address, or was required to, any of Student’s then-existing educational needs. Not only did the Parent prematurely send the TDN, I find that they never intended to allow the DOE to complete the evaluation and devise an IEP or to implement one, and that Parent never wished to enroll Student in a DOE school. I find that Parent simply assumed that the DOE would be required to pay for the unilateral placement through the filing of a DPC.

As stated above under the Prong I analysis of Burlington/Carter "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement,”^[90] and that a District's ability to implement an IEP may not be speculative with regard to "prospective challenges to [the assigned school's] capacity to provide the services mandated by the IEP."^[91] “In order for such challenges to be based on more than speculation, a parent must allege that the school is "factually incapable" of implementing the IEP.”^[92] To reiterate, not only was there speculation that the DOE would not adhere to the IEP, there was no IEP because the TDN was sent before the conclusion of the 60 school days to design one. Parent’s actions were more than merely speculative; they were premature and did not afford the DOE the opportunity to provide Student with a placement for the 2021-2022 school year.

I am also unpersuaded that Parent would be responsible to pay for the Private School tuition absent a finding that DOE would be required to reimburse Parent for the alleged incurred debt. Although there is a tuition affidavit dated June 30, 2022 that Parent has made no payments with tuition due in the amount of $100,000, the enrollment contract^[93] and its amendment are undated. In addition, despite a proviso in the enrollment contract requiring Parent to pay a non-refundable enrollment deposit of $1,000 upon execution,^[94] no such payment was made,^[95] or an explanation why it was outstanding. When IHO asked whether Private School “tuition was the same for every student in the school?”^[96] Educational Director replied, “pretty much.”^[97] Curiously, DOE’s email to Parent confirming the receipt of the TDN,^[98] was, first, forwarded to Educational Director, who, in turn, forwarded the response to Parent’s attorney.

Overall, and after considering the record at hearing, I find that the equities would not support Parent’s claim for tuition reimbursement.

• • Section 504 Claims Parents asserted a claim under Section 504 of the Rehabilitation Act for the school years in question.^[99] Section 504 requires that school districts provide qualified students with a “free appropriate public education… regardless of the nature or severity of the person’s [disability].”^[100] Under Section 504, an appropriate education means “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to [504’s] procedures.”^[101] An individual with a disability includes any person who “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having an impairment.”^[102] However, only students who have a substantial limitation of a major life activity are entitled to a FAPE.^[103] Section 504 and the Americans with Disabilities Act share the same non-exhaustive list of major life activities, which include seeing, hearing, eating, walking, standing, sitting, speaking, learning, reading, concentrating, thinking, writing, and communicating, among others.^[104] The student’s parents bear the burden of proof, both in production and persuasion, on any claim under Section 504 of the Rehabilitation Act.^[105]

Section 504 requires that recipients of federal funds that operate public educational programs or activities must “establish and implement... a system of procedural safeguards that includes...an impartial hearing with opportunity for participation by the [student’s] parents or guardian and representation by counsel, and a review procedure.”^[106] Impartial Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act if delegated the authority by the Local Education Agency (LEA). The New York City Department of Education delegated to OATH the authority to adjudicate due process complaints under Section 504.^[107]

I find that Parent’s 504 claims are subsumed within the statutory framework of the IDEA, and that the Parents did not identify any specific regulatory requirement under 504 that is not subsumed under the IDEA and that would merit separate analysis and discussion. Therefore, I do not separately address factual determinations or analyze the 504 claims related thereto.

IV. Conclusion

Based on the forgoing, I find that the DOE provided the Student with a FAPE for the 2021-2022 school year, and that even if the DOE did not provide a FAPE, the equities would not have favored the Parent for any reimbursement.

SO ORDERED

9/1/2022

Dr. Oren Varnai, 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 proceedings 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.

EXHIBITS

Parent Exhibit

Date

Title

No. of Pages

P - A

03/30/2022

Impartial Hearing Request

3

P - B

08/18/2021

Ten Day Notice Letter (with email confirmation)

2

P - C

2020-2021

P.S Final Report Card

3

P - D

07/07/2022

Communication between Classroom Teacher at P.S. and Parent

P - E

01/2022

Private School Behavior Intervention Plan

3

P - F

03/04/2022

Private School Teacher Progress Report

2

P - G

06/12/2022

Private School Speech Therapy Progress Report

2

P - H

06/12/2022

Private School Counseling Progress Report

3

P - I

2021-2022

Private School End of Year Progress Report

6

P - J

05/12/2022

Psychological Assessment

4

P - K

2021-2022

Private School Mission Statement

2

P - L

2021-2022

Private School Daily Schedule

1

P - M

2021-2022

Private School Enrollment Contract

7

P - N

06/30/2022

Private School Tuition Affidavit

1

P – O

2021-2022

Private School Final Attendance

1

P – P

07/20/2022

Affidavit of Testimony of Educational Director

5

P – Q

07/21/2022

Affidavit of Testimony of Parent 3

DOE Exhibit

Date

Title

No. of Pages

DOE-1

6/3/2021

Request for Initial Referral

4

DOE-2

6/7/2021

Physical Examination

8

DOE-3

6/8/2021

Consent for Initial Evaluation

1

DOE-4

6/8/2021

Initial Social History

4

DOE-5

6/11/2021

Classroom Observation

2

DOE-6

6/15/2021

Comprehensive Data Driven Assessment

6

DOE-7

7/28/2021

Meeting Notice

3

DOE-8

8/24/2021

Speech and Language Evaluation

7

DOE-9

9/20/2021

Meeting Notice

3

DOE-10

11/9/2021

Meeting Notice

3

DOE-11

11/3/2021

IESP

18

DOE-12

11/3/2021

IESP Attendance Page

1

DOE-13

11/3/2021

CSE Meeting Minutes

4

DOE-14

11/9/2021

Consent for Initial Services

3

DOE-15

11/19/2021

Prior Written Notice

8

IHO Exhibit

Date

Title

No. of Pages

IHO-1

8/14/2022

DOE Closing Brief

6

IHO-2

8/14/2022

Parent Closing Brief

23

Footnotes

[1] Ex. P-A-1.

[2] U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982].

[3] Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85.

[4] Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; 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].

[5] Walczak v. Fla. 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].

[6] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017].

[7] R.E., 694 F.3d at 190-91.

[8] M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003].

[9] 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.

[10] U.S.C. § 1415[f][3][E][i].

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

[12] Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189.

[13] Endrew F., 137 S. Ct. at 1001.

[14] 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.

[15] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.

[16] 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].

[17] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001.

[18] 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.

[19] CFR 300.320[a][1]; 8 NYCRR §200.4[d][2][i].

[20] CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR §200.4[d][2][iii].

[21] CFR 300.320[a][4]; 8 NYCRR §200.4[d][2][v].

[22] Endrew F., 137 S. Ct. at 1000.

[23] Ex. P-A-2.

[24] Ex. DOE-12-1.

[25] Ex. P-A-2.

[26] Ex. P-A-2.

[27] Tr. p. 34.

[28] Tr. pp. 36-37. A translator was available for Parent at the CSE meeting.

[29] Ex. DOE-13-1.

[30] Tr. pp.32-33.

[31] Ex. P-A-2.

[32] Ex. P-A-1.

[33] Ex. IHO-2-6.

[34] Ex. IHO-2-7.

[35] Ex. IHO-2-6. It is unclear why the date of October 1, 2021 was chosen, but it appears to be a result of miscalculation of school days in June and September of 2021.

[36] Ex. P-A-2.

[37] Ex. P-A-3.

[38] Ex. P-A-1, 7.

[39] Appeal No. 21-204, p. 16.

[40] Id. at p. 17.

[41] Id. Emphasis added.

[42] Ex. DOE-1-1.

[43] Ex. DOE-3-1

[44] C.W.L. and E.L. v. Pelham Union Free Sch. Dist., 149 F. Supp. 3d 451, 465 (S.D.N.Y. 2015)”

[45] See Educ. Law § 4401-a[1], [3]; 8 NYCRR §200.4[a][1][i]; [a][2][ii]-[iv]; [b]; see also 20 U.S.C. § 1414[a][1][B]; 34 CFR 300.301[b].

[46] NYCRR §200.4[a][6]; §200.5[a][5].

[47] see 8 NYCRR §200.4[a][2][iv][a]; see also 34 CFR 300.300[a].

[48] NYCRR §200.4[b]; see also 8 NYCRR §200.4[b][7].

[49] NYCRR §200.4[e][1].

[50] NYCRR §200.1[n][1].

[51] Ex. DOE-1-1.

[52] Ex. DOE 3-1.

[53] Ex. P-B-1.

[54] C.F.R. § 300.11(c)(1).

[55] NYCRR § 201.11(b)(3)(iv).

[56] https://www.bing.com/ck/a?!&&p=706ba124bd31c568JmltdHM9MTY2MTg4MjA5MiZpZ3VpZD1iNjU4MmFmMC02NGIyLTQ5NjgtODM5YS02ZTE0NTA3MmQ4MDImaW5zaWQ9NTE3Nw&ptn=3&hsh=3&fclid=d8dec984-288c-11ed-81d2-b0453a529f66&u=a1aHR0cHM6Ly93d3cuc2Nob29scy5ueWMuZ292L2RvY3MvZGVmYXVsdC1zb3VyY2UvZGVmYXVsdC1kb2N1bWVudC1saWJyYXJ5L3NjaG9vbC1jYWxlbmRhci1mb3ItZmFtaWxpZXMtMjAyMC0yMDIx&ntb=1 (accessed on August 30, 2022).

[57] -2022 School Year Calendar (nyc.gov) (accessed on August 30, 2022).

[58] June 9, 10, 11, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25

[59] July 1, 2, 6, 7, 8, 9, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 26, 27, 28, 29, 30.

[60] August 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, 16, 17, 18, 19, 20, 23, 24, 25, 26, 27, 30, 31.

[61] September 13, 14, 15, 17, 20, 21, 22, 23, 24, 27, 28, 29, 30.

[62] Tr. p. 59; line 11.

[63] Ex. IHO-2-8.

[64] Ex. IHO-2-6.

[65] R.E., 694 F.3d at 190-91.

[66] M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003].

[67] 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.

[68] U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii].

[69] Lesesne v. District of Columbia, 447 F.3d 828,834 (D.C. Cir. 2006) (emphasis in original; internal citations omitted).

[70] Fed. Appx. 232, 233 (D.C.Cir. 2004).

[71] C.M. v. Bd. of Educ., 128 Fed. Appx. 876, 881 (3d Cir. 2005) (per curiam).

[72] R.E., 694 F.3d at 195. See E.H. v. New York City Dep't of Educ., 611 Fed. App'x 728, 731 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 40 [2d Cir. Mar. 19, 2015].

[73] M.O., 793 F.3d at 245; see Y.F. v. New York City Dep't of Educ., 659 Fed. App'x 3, 5-6 [2d Cir. Aug. 24, 2016]; J.C. v. New York City Dep't of Educ., 643 Fed. App'x 31, 33 [2d Cir. Mar. 16, 2016]; B.P. v. New York City Dep't of Educ., 634 Fed. App'x 845, 847-49 [2d Cir. Dec. 30, 2015]

[74] Citing M.E. v. New York City Dep't of Educ., 2018 WL 582601, at *12 [S.D.N.Y. Jan. 26, 2018]; Z.C. v. New York City Dep't of Educ., 2016 WL 7410783, at *9 [S.D.N.Y. Nov. 28, 2016]; L.B. v. New York City Dept. of Educ., 2016 WL 5404654, at *25 [S.D.N.Y. Sept. 27, 2016]; G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *15 [S.D.N.Y. Sept. 19, 2016]; M.T. v. New York City Dep't of Educ., 2016 WL 1267794, at *14 [S.D.N.Y. Mar. 29, 2016]).

[75] U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii].

[76] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985).

[77] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998).

[78] Gagliardo, 489 F.3d at 112.

[79] Id., quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).

[80] Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115.

[81] 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).

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

[83] Tr. pp. 52-59.

[84] Frank G., 459 F.3d at 364.

[85] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009).

[86] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

[87] Ex. P-B-1.

[88] Ex. DOE-3-1.

[89] Tr. p. 59; line 11.

[90] R.E., 694 F.3d at 195. See E.H. v. New York City Dep't of Educ., 611 Fed. App'x 728, 731 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 40 [2d Cir. Mar. 19, 2015].

[91] M.O., 793 F.3d at 245; see Y.F. v. New York City Dep't of Educ., 659 Fed. App'x 3, 5-6 [2d Cir. Aug. 24, 2016]; J.C. v. New York City Dep't of Educ., 643 Fed. App'x 31, 33 [2d Cir. Mar. 16, 2016]; B.P. v. New York City Dep't of Educ., 634 Fed. App'x 845, 847-49 [2d Cir. Dec. 30, 2015]

[92] Citing M.E. v. New York City Dep't of Educ., 2018 WL 582601, at *12 [S.D.N.Y. Jan. 26, 2018]; Z.C. v. New York City Dep't of Educ., 2016 WL 7410783, at *9 [S.D.N.Y. Nov. 28, 2016]; L.B. v. New York City Dept. of Educ., 2016 WL 5404654, at *25 [S.D.N.Y. Sept. 27, 2016]; G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *15 [S.D.N.Y. Sept. 19, 2016]; M.T. v. New York City Dep't of Educ., 2016 WL 1267794, at *14 [S.D.N.Y. Mar. 29, 2016]).

[93] Ex. P-M.

[94] Ex. P-M-1.

[95] Ex. P-N-1.

[96] Tr. P. 58; lines 12-23.

[97] Tr. p. 58; line 14.

[98] Ex. P-B-2.

[99] Ex. P-A-2, para 1.

[100] C.F.R. § 104.33(a).

[101] C.F.R. § 104.33(b).

[102] C.F.R. §104.3(j)(1).

[103] U.S.C. § 705(20)(B)(i); 42 U.S.C. § 12102(2).

[104] See 28 C.F.R. § 35.108(c)(1)(ii).

[105] See e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990); S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y. 2007).

[106] C.F.R. § 104.36.

[107] NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504-delegation-Signed.pdf.