NY IHO #226080: New York City... | Special Education Law

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CASE NUMBER: 572502 - NYC: 226080

NEW YORK CITY OFFICE OF ADMINISTRATIVE

TRIALS AND HEARINGS (OATH)

SPECIAL EDUCATION HEARINGS DIVISION

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

PETITIONER FINDINGS OF FACT AND DECISION

against Case # 226080 THE NEW YORK CITY Dustin Johnson, 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.

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

II. Overview – Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an Impartial Hearing Officer (“IHO”) (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).

III. Background and Procedural History

Petitioner is the parent of STUDENT (“Student” or “Child”). On April 28, 2022, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) (see Exhibit P-A) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”).

On May 3, 2022, the undersigned IHO was appointed to preside over this case. On June 2, 2022, a Prehearing Conference was held (See Exhibit IHO-I). On July 7, 2022, an impartial hearing on the merits of the DPC was held and completed the same day.

By due process complaint notice dated April 28, 2022, the Parent alleged, generally, that the DOE failed to provide the Student a free appropriate public education (“FAPE”) for the 2021-2022 school year by, among other things, not timely holding a CSE meeting for the 2021-2022 school year, not timely developing a substantively valid IEP for the Student, and not receiving a placement offer of a school capable of appropriately implementing the IEP that was created in March 2022 (P-A). In the DPC, the Parent alleged that the Student is an eleven-year-old classified as emotionally disturbed who currently exhibits self-harming behavior and suicidal ideations (id. at p. 1). The Parent alleged that they requested an IEP meeting in November 2021 and that it was not until March 2022 that the CSE convened to develop an IEP (id. at p. 2). The Parent alleged that the Student was expelled from her private school placement on January 21, 2022, and without a date for an IEP meeting and no placement recommendation for the Student, the Parent’s unilaterally placed the Student in a different private school placement (id.). For relief, the Parent sought a finding that the District denied the Student a FAPE and reimbursement for tuition and fees (id. at p. 3).

IV. Findings of Fact The Student is currently REDACTED years-old and is diagnosed with ADHD, Specific Learning Disorder with Impairment in Written Expression, Generalized Anxiety Disorder, Major Depressive Disorder, and Oppositional Defiant Disorder (DOE-3; P-C; P-D). The Student attended a NYC public school from pre-K through 5th Grade and did not previously receive special education services (P-P-1). The Student was first diagnosed with ADHD in 4th Grade (P-P-1).

The Student struggles with motivation and focus, sad mood, self-harming behaviors, and anxiety (P-D; P-P). The Student attended a private middle school and while there, the Student struggled with motivation, stamina and completing academic work, and started developing poor self-esteem and major depressive disorder (P-D). The Student was expelled from that school (P-P-2). The Student is concerned about the Student’s body image and presents with gender dysphoria (P-D; P-P). The Student is in therapy and prescribed various medications (P-D; P-P). The Student has self-harming and suicidal ideation with a plan and intent and was psychiatrically admitted earlier this year (P-D; P-P). The combination of these symptoms has limited the Student’s social and academic success at mainstream public and private schools (P-D). It was recommended by the Student’s treating Psychiatrist that the Student attend a small nurturing school with self-contained classes, special education teachers and a therapeutic environment that provides intensive school counseling (P-D).

Furthermore, the Student’s most recent Neuropsychological Evaluation recommended that the Student needs a placement in a full-time special education school, in a small school environment, in order to learn (P-C-26). The Student requires a small classroom with a teacher to student ratio that can support her academic, attention, and social needs (P-C-27). The Student requires a classroom with no more than eight students per teacher, and neither a mainstream class nor an ICT class, even with supports, will be appropriate for the Student (P-C-27). The Student requires a curriculum that specifically addresses her deficits and writing, executive functioning, and attention in order to develop her social and academic skills (P-C-27).

On November 4, 2021, the Parents emailed the DOE requesting the Student transfer to a District school (P-P; P-R). After numerous attempts by the DOE to assist the Parents, on November 24, 2021, the Parents informed the DOE that they were requesting an IEP meeting instead of a transfer to another school (P-R). On November 29, 2021, the Parent sent another request for an IEP to a different DOE email address after being provided with the appropriate contact person (P-S; P-T). On December 15, 2021, the DOE sent the Parent a notice of social history for the Student and a request to meet with the family on January 3, 2022 (DOE-2). A social history update was subsequently completed (DOE-3).

On January 27, 2022^[1], the Parent provided notice to the CSE that since the Student was expelled from her current school, and because an IEP meeting has not yet been held for the Student, and because the Parents have not received a school location letter containing a public-school placement, the Parents will be unilaterally placing the Student at a private school and reserved their right to seek reimbursement for the cost of the unilateral placement (P-B-1).

The Parent unilaterally enrolled the Student in a private school on January 24, 2022, for the academic year commencing on January 28, 2022 (P-K). The Parent’s felt that the school they had selected would offer the Student the academic and emotional support that she needed (P-P). The Parents liked the small classes and individualized attention, and also that the Student had continuous access to a school psychologist or counselor (P-P). The Parent indicated that the school has small classes and an academic program that is tailored to the Student’s specific learning needs (P-P). The average class size of the school is 5-12 students and this Student’s classes had between 4-8 students per class (P-Q-2; P-Q-4). Approximately 90-95% of the school’s students have IEPs with classifications of either Emotional Disturbance or Other Health Impairment (P-Q-2). The school has 4 psychologists on staff, offers a range of therapeutic support groups, and assigns an individual advisor to each student (P-Q-3). The school further individualized the Student’s program and delivery of instruction to address the Student’s challenges (P-Q-4-5). Furthermore, the school provided the Student with on-demand access to the counseling center and its staff of psychologists (P-Q-5). The Student has made academic, social, and emotional progress while attending the private school placement (P-Q-6).

An IEP was subsequently generated for the Student on March 4, 2022, and the Student was given a disability classification of Emotional Disturbance (P-E). It was recommended in the IEP that the Student be placed in a New York State Approved Nonpublic School day program with an 8:1:1 ratio, in addition to the related services of counseling (id.). An interim program with a 12:1:1 ratio with a behavioral support paraprofessional was also recommended (id.).

The Parent was contacted by three New York State Approved Non-public schools, spoke with representatives of the schools, and it was clear to the Parents that the schools were too far away from the Student’s home and did not offer sufficient levels of counseling to be viable options for the Student (P-P-3). Additionally, none of the schools offered the Student a seat in their program (P-P-4). Furthermore, the Parent did not receive a school location letter recommending a District 75 school (id.).

V. Applicable Standards

Two purposes of the 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 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]).

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; 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]). "'[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. 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]). The Supreme Court has indicated 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" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017]). 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. 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]). 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).

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 adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 137 S. Ct. at 1001). 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]). 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 Endrew F., 137 S. Ct. at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; 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).

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]), 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]). 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, 36970 [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).

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 their unilateral placement provides every service necessary to maximize the student's potential, but rather, must demonstrate that the placement provides education instruction specially designed to meet the unique needs of a student (M.H., 685 F.3d at 252; Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 365). 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 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).

VI. Discussion

A. FAPE

At the Due Process Hearing, the District conceded that it had failed to offer the Student a FAPE in this case. The District did not call any witnesses and rested its case on the two pieces of documentary evidence the District had admitted.

For these reasons, and for the reasons indicated above in the Findings of Fact, I find that the District failed to offer the Student a Free Appropriate Public Education as required by Federal and State law.

B. Unilateral Placement In this case, as the District conceded that it did not offer the Student a FAPE for the 2021-2022 school year, the next issue to determine is whether the Parent’s unilateral placement of the student at SCHOOL (“SCHOOL”), during the 2021-2022 school year, was appropriate. The Parent argues that SCHOOL is an appropriate unilateral placement for the Student as it provides special education and related services that appropriately address the Student’s needs, and is enabling the Student to make academic, social, and emotional progress and avoid regression (P-U). In opposition, the District contends that SCHOOL was not an appropriate unilateral placement because SCHOOL was not individually tailored to meet the unique needs of the Student (DOE-5).

For the reasons described below, I find that the Parent’s unilateral placement was appropriate.

Under the circumstances of this case, where the District conceded that it failed to offer the Student a FAPE for the school year in question and elected not to submit any evaluative information^[2] or assessments of the Student as evidence of the District's view of the Student's special education needs into the hearing record—the District has effectively abandoned any opportunity to assert its position regarding the Student's special education needs and the extent to which the Parent's unilateral placement either addressed or failed to address those needs. Additionally, the District's failure to enter any of its own evaluative information into the hearing record effectively precludes it from arguing a credible alternate view of the Student's needs or successfully rebutting the evidence proffered at the hearing by the Parents in support of the appropriateness of the unilateral placement for the Student. Accordingly, to the extent that SCHOOL staff relied upon evaluation reports or assessments of the Student to identify the Student's needs and develop the Student's educational program, or any allegation on the part of the District that the Parent's evidence of the appropriateness of the unilateral placement was not sufficiently comprehensive for the purposes of determining the Student's needs, the responsibility for such deficiency lies with the District and not the Parent (see 34 CFR 300.305[c]; 8 NYCRR 200.4[b][5][iii]; A.D. v. Bd. of Educ., 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]; see also Application of the Dep't of Educ., Appeal No. 21-194; Application of the Dep't of Educ., Appeal No. 20-131; Application of the Dep't of Educ., Appeal No. 18-125; Application of a Student with a Disability, Appeal No. 180-049; Application of a Student with a Disability, Appeal No. 15-076; Application of a Student Suspected of Having a Disability, Appeal No. 15-038; 17 Application of a Student with a Disability, Appeal No. 14-033; Application of a Student with a Disability, Appeal No. 14-028; Application of a Student Suspected of Having a Disability, Appeal No. 14-003; Application of the Dep't of Educ., Appeal No. 13-198; Application of the Dep't of Educ., Appeal No. 13-072; Application of a Student with a Disability, Appeal No. 12-027). Moreover, because a "private placement need not provide... an IEP for the disabled student," SCHOOL had no duty to conduct the tests or evaluations typically relied upon by a district to develop an IEP (Frank G., 459 F.3d at 364).

Thus, the question of whether SCHOOL was an appropriate unilateral placement is principally determined by analyzing whether the combined program provided "educational instruction specially designed to meet the unique needs of [the student]" (Rowley, 458 U.S. at 188-89; see Gagliardo, 489 F.3d at 115; Frank G., 459 F.3d at 365). Furthermore, even if the District were to allege that the hearing record did not contain sufficient information to determine the Student's needs, as discussed below, a review of the hearing record establishes that the evidence submitted by the Parents in this case was sufficient to identify the Student's unique individual needs and to satisfy the Parents' burden to establish the appropriateness of the Student's unilateral placement at SCHOOL for the 2021-2022 school year.

• The Student’s Needs Here, the Parent submitted a 2021 neuropsychological evaluation along with a letter from the Student’s treating Psychiatrist, both of which accurately described the Student’s special education needs (see P-C; P-D).

According to the Student’s treating Psychiatrist, the Student struggles with motivation and focus, sad mood, self-harming behaviors, and anxiety (P-D). The Student attended a private middle school and while there, the Student struggled with motivation, stamina and completing academic work, and started developing poor self-esteem and major depressive disorder (P-D). The Student is concerned about the Student’s body image and presents with gender dysphoria (P-D). The Student is in therapy and prescribed various medications (P-D). The Student has self-harming and suicidal ideation with a plan and intent and was psychiatrically admitted earlier this year (P-D). The combination of these symptoms has limited the Student’s social and academic success at mainstream public and private schools (P-D). It was recommended by the Student’s treating Psychiatrist that the Student attend a small nurturing school with self-contained classes, special education teachers and a therapeutic environment that provides intensive school counseling (P-D).

Furthermore, the Student’s most recent Neuropsychological Evaluation found that the Student met the criteria for ADHD and Specific Learning Disorder with impairment in Written Expression, and recommended that the Student needs a placement in a full-time special education school, in a small school environment, in order to learn (P-C-25-26). The Student requires a small classroom with a teacher to student ratio that can support her academic, attention, and social needs (P-C-27). The Student requires a classroom with no more than eight students per teacher, and neither a mainstream class nor an ICT class, even with supports, will be appropriate for the Student (P-C-27). The Student requires a curriculum that specifically addresses her deficits in writing, executive functioning, and attention in order to develop her social and academic skills (P-C-27).

• The SCHOOL According to a SCHOOL (“SCHOOL”) Program Description, SCHOOL provides a therapeutic day program that combines academic, advising, and clinical program components (P-H). SCHOOL provides every student individually formulated support in a structured and respectful environment (P-H). Part of the school's mission is a desire to welcome students with complex emotional profiles and provide them the conditions needed to experience school anew (P-H). The school's clinical program includes unlimited access to services in the schools Counseling Center (P-H). SCHOOL serves adolescents who have struggled to negotiate the academic, social, and emotional pressures of the typical school environment (P-H).

The Clinical Director of SCHOOL credibly testified that the average class size of the SCHOOL is 5-12 students and this Student’s classes had between 4-8 students per class (P-Q-2; P-Q-4). Approximately 90-95% of the school’s students have IEPs with classifications of either Emotional Disturbance or Other Health Impairment (P-Q-2). The school has 4 psychologists on staff, offers a range of therapeutic support groups, and assigns an individual advisor to each student (P-Q-3). The school further individualized the Student’s program and delivery of instruction to address the Student’s challenges (P-Q-4-5). Furthermore, the school provided the Student with on-demand access to the counseling center and its staff of psychologists (P-Q-5). Finally, there was testimony that the Student has made academic, social, and emotional progress while attending the private school placement (P-Q-6).

• Progress Although not dispositive, the hearing record also contains evidence to support a finding that the Student made progress at SCHOOL (see P-J; P-P; P-Q). With respect to the Student's progress at SCHOOL, a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78, 2013 WL 1277308 [2d Cir. Mar. 29, 2013]; D.DS. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81, 2012 WL 6684585, [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]; see also Frank G., 459 F.3d at 364). However, a finding of progress is, nevertheless, a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).

Based upon the foregoing, the hearing record demonstrates sufficient evidence describing how SCHOOL generally—as well as how the SCHOOL teachers specifically—addressed the Student's special educational needs and how the program is reasonably calculated to confer (and has conferred) educational benefits on the Student. Furthermore, the District failed to rebut any of the Petitioner’s proffered evidence. Therefore, I find that SCHOOL was an appropriate unilateral placement for the Student.

C. Equitable Considerations

Having found that SCHOOL was an appropriate unilateral placement for the Student for the 2021-2022 school year, the final criterion for a reimbursement award is that the Parent’s 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 also be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice 10 business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 14129(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). Parents of students enrolled in private school are not exempted from 10-day notice requirements (S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-63 [S.D.N.Y. 2009]).

The Second Circuit has recently reiterated that "[t]he ten-day notice requirement gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections—all before the parents enroll their child in a private school and file a due process complaint" and that "if parents unreasonably reject the school district's proposed changes to the IEP, or are otherwise uncooperative, courts and hearing officers are fully empowered to deny them reimbursement" (Bd. of Educ. of Yorktown Cent. Sch. Dist. v C.S., 990 F.3d 152, 171 [2d Cir. 2021]).

However, the hearing officer must excuse the failure to provide timely notice if, in his discretion, he determines that the reason for the lack of timely notice is that the school district prevented the parents from providing the notice, the parents had not received the procedural safeguards notice advising of the requirement to provide notice, or compliance with the notice requirement would likely result in physical harm to the student (See 20 U.S.C. § 1412(a)(10)(C)(iv); 34 C.F.R. § 300.148(e)(1)).

On the record before me, I see no equitable factors that would weigh against full tuition reimbursement to the Parents. The Parents communicated to the DOE their concerns regarding the Student, their desire to initially place the student at a District school, and then their desire to have the Student evaluated by the CSE (see P-R; P-S; P-T). Furthermore, on January 27, 2022, the Parent provided notice to the CSE that since the Student was expelled from her current school, because an IEP meeting has not yet been held for the Student, and because the Parents have not received a school location letter containing a public-school placement, the Parents will be unilaterally placing the Student at a private school and reserved their right to seek reimbursement for the cost of the unilateral placement (P-B-1).

The Parent unilaterally enrolled the Student in a private school on January 24, 2022, for the academic year commending on January 28, 2022 (P-K). The Parent’s felt that the school they had selected would offer the Student the academic and emotional support that she needed (P-P). The Parents liked the small classes and individualized attention, and also that the Student had continuous access to a school psychologist or counselor (P-P). The Parent indicated that the school has small classes and an academic program that is tailored to the Student’s specific learning needs (P-P).

The Parent was contacted by three New York State Approved Non-public schools, the Parent spoke with representatives of the schools, and it was clear to the Parents that the schools were too far away from the Student’s home and did not offer sufficient levels of counseling to be viable options for the Student (P-P-3). Additionally, none of the schools offered the Student a seat in their program (P-P-4). Furthermore, the Parent did not receive a school location letter recommending a District 75 school (id.). Fatally, the DOE presented no witnesses or documents to demonstrate that the equities do not weigh in favor of the Parents.

While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow that they may take advantage of deficiencies in the district's offered placement to obtain all those services they might wish to provide for their child at the expense of the public, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement 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). As one circuit court explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs), or if it provides some things that do not meet educational needs at all (such as purely recreational options), or if it is overpriced" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]; Still v. DeBuono, 101 F.3d 888, 893 [2d Cir. 1996] [finding that "[t]he appropriate amount (of reimbursement) thus bears a relationship to the quantum of services that the state would have been required to furnish"]; J.P. v County Sch. Bd., 447 F. Supp. 2d 553, 591 [E.D. Va. 2006], rev'd on other grounds 516 F.3d 254 [4th Cir. 2008] [explaining that the district "must reimburse the parents for the reasonable costs of educating (the student) at the (private school) and any related services and accommodations that would have been covered under the IDEA had (the district) provided (the student) with an appropriate education"]).

Based on the record before me, considering the Student’s unique needs and the way in which SCHOOL specifically tailored its program offerings to this Student, considering that the District did not generate an IEP until March 2022 and failed to recommend an appropriate placement, and considering that the Parent did not receive a school location letter recommending a District 75 school, I find that the Parent’s are entitled to full reimbursement on equitable grounds.

VII. Orders

• Tuition Reimbursement For the reasons outlined above, the equities and the evidence in the hearing record supports an award of tuition reimbursement to the Parents in this case in the amount of $39,000.00 (see Parent Ex. P-K; P-M; P-N).
• Other Requests for Relief I have reviewed the Parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

VIII. Conclusion In summary, a review of the evidence in the hearing record demonstrates that the District denied the Student a FAPE, the Parent sustained their burden to establish that SCHOOL was an appropriate unilateral placement for the Student for the 2021-2022 school year, and equitable considerations support an award of full tuition reimbursement.

IT IS HEREBY ORDERED that within 60 calendar days from the date of this decision, the District shall reimburse Petitioner the cost of the 2021-2022 SCHOOL tuition in the amount of $39,000.00. For the purposes of this Order, I find the evidence submitted in Petitioner’s Exhibits K, M, and N to be adequate proof of payment made by Petitioner entitling Petitioner to immediate reimbursement. Furthermore, I find that the District has already been provided with adequate proof via this proceeding and so the District shall reimburse Petitioner within 60 calendar days from the date of this decision without any action on the part of Petitioner.

DATED: SO ORDERED

8/23/2022 /s/ Dustin Johnson

Dustin Johnson, 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.

IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD

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

DATED: CERTIFIED BY

8/23/2022 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

CASE # 226080 EXHIBITS

Parent Exhibit

Date

Title

Number of Pages

P - A

04/28/2022

Impartial Hearing Request

P - B

01/27/2022

Ten Day Notice and Confirmation

P - C

Various 2021

Neuropsychological Evaluation

P - D

02/05/2022

Letter from Dr.

P - E

03/04/2022

Individualized Education Plan

P - F

03/21/2022

Prior Notice Package

P - H

07/14/2021

SCHOOL Program Description

P - I

Undated

Remote Learning Plan

P - J

03/22/2022

Report Card

P - K

01/24/2022

Enrollment Contract

P – M

06/07/2022

Tuition Affidavit

P - N

01/28/2022

Parent Proof of Payment

P – O

Undated

Student Schedule

P – P

06/17/2022

Parent Affidavit

P – Q

06/16/2022

Affidavit of Dr.

P – R

Nov. 2021

Email Correspondences

P – S

11/29/2021

Email Correspondences

P – T

11/29/2021

Email Correspondences

P - U

08/05/2022

Closing Brief

DOE Exhibit

Date

Title

Number of Pages

DOE-2

12/15/2021

Notice of Social History

DOE-3

03/04/2022

Social History Update

DOE-5

08/05/2022

Closing Brief

IHO Exhibit

Date

Title

Number of Pages

IHO-I

06/02/2022

Prehearing Conference Summary and Order

Footnotes

[1] Petitioner’s exhibit P-B-1 indicates a date of January 27, 2021, which appears to be a typo.

[2] While the DOE did offer a Social History Update, the substance of that update comes entirely from the Parent’s perspective.

New York City Department of Education, Impartial Hearing Decision

I. Introduction

VI. Discussion