New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 572586- NYC: 226128

NAMES AND TITLES OF PERSONS WHO APPEARED ON 8.17.2023:

For the Student:

Redacted, Esq., (hereinafter referred to as "Parent's Representative) Redacted, Parent (hereinafter referred to as "Witness # 4") Redacted, BCBA, Program Supervisor, Private School (hereinafter referred to as "Witness #3)

For the Department of Education ("DOE"): Redacted, Esq., Consultant Impartial Hearing Representative (hereinafter referred to as "District's representative") Redacted (hereinafter referred to as "Witness #1") Redacted (hereinafter referred to as "Witness #2")

Date of Decision: 11.6.23

BACKGROUND AND PROCEDURAL HISTORY

Petitioner filed a Due Process Complaint on 5.2.22 against the New York City Department of Education ("NYC DOE" or "DOE" or "District") pursuant to the Individuals with Disabilities Education Act ("IDEA"). I was appointed as the impartial hearing officer on 6.20.23. I held a Prehearing Conference in this matter on 6.29.23 and was advised that. IHO Farago rendered a decision in this case, which decision concerned both the 21-22 and 22-23 school years, DPC (#229251 for the 22-23 school year), which was consolidated with DPC #226128. The case for both school years proceeded under case #226128 (Exhibit C). The prior IHO's decision was appealed, and the SRO issued an opinion (23-079) remanding the case to IHO Farago for a determination on the issue of FAPE. It was relayed that IHO Farago recused himself from the case because he disagreed with the determination of the SRO and stated he could not be fair in issuing a determination. The case was thereafter assigned to me. I had requested that the parties provide me with the disclosure from the case as previously submitted to IHO Farago, a copy of the IHO's decision, and the SRO opinion remanding the case, as apparently that is where the dictates for the hearing would be found. I directed the Parent to state the issues to be presented to this tribunal (what are the underlying allegations for the deprivation of FAPE for each school year) and the relief sought by sending such information in an email to the District on or before the close of business on 7.7.23. The District was directed to provide its position to the underlying allegations and the number of witnesses it would present at the hearing by sending an email to Parent's counsel and this tribunal on or before the close of business on 7.14.23.

The parties selected 7.31.23 for a hearing on the merits (IHO Exhibit 1). The District requested an adjournment, and the hearing was then rescheduled for 8.17.23. Participating in the hearing were Parent's representative and the District's representative.

HEARING

At the beginning of the 8.17.23 hearing, I confirmed the scope of the hearing, specifically, the Parent's assertions, and requested relief and the District's position. The Parent alleged a deprivation of a free and appropriate public education ("FAPE") for the 21-22 and 22-23 school years and sought funding for tuition at the Private School (Tr. 7-8}. 1 The District stated they were presenting a Prong^[1] case for the 21-22 school year and conceding a denial of FAPE to the Student for the 22-23 school year. However, the District further asserted that the unilateral placement was not appropriate for the Student (Tr. 9-12). The Parent was seeking an educational program for the 12-month school year. The District contended that the Student did not need an extended school year (Tr. 12-13).

The District representative made an opening statement stating that the untimeliness of the ten-day notice was a Prong III issue (Tr. 13-16). The Parent made an opening statement discussing the Student and the placement (Tr. 19-21). From the parties' respective openings, two legal issues were identified: (i) When does a ten-day notice have to be served, and (ii) When is a student entitled to receive a recommendation for an extended school year? A third issue was identified during the hearing: whether consent of the Parent is necessary prior to the District sending notifications or other transmissions to the Parent by email. The representatives were asked to brief those issues in their closing summations (Tr. 24, 82). In their summations, neither party addressed when the predicate notice needed to be sent and what consent was required for email transmission (IHO Exhibits 2 and 3).

There was a lengthy discussion regarding the District's disclosure, which was untimely, and incomplete (Tr. 25-35). The District sought to introduce nine documents into evidence. Exhibit 10, an affidavit disclosed during the hearing, was marked for identification only. The Parent had no objection to Exhibits 1-9 being admitted into evidence (Tr. 34-39).

Parent sought to admit Exhibits A-U into evidence. There was a lengthy discussion regarding the Parent's disclosure, which was untimely as well (Tr. 39- 48). The District objected to Exhibit U on relevancy (Tr. 48-53). There was no objection by the District to the admission of the documents A-T. Exhibits A through R and U were admitted into evidence. Exhibits S and T, affidavits that were neither signed nor notarized, were not admitted into evidence (Tr. 53-58, 138-139).

The testimony of the witnesses is set forth below.

The Parent's representative submitted their post-hearing closing brief on 10.16.23 (IHO Exhibit 2). The District's representative submitted its closing brief on 10.17.23 (IHO Exhibit 3).

FINDINGS OF FACT AND DECISION

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

When the Student was evaluated in 4.2021 it was reported that: the Student "is [a] REDACTED years, REDACTED months old boy who is being evaluated at the request of the school, due to academic and behavioral concerns. [The Student's] principal, Mr. [Redacted], reports that [the Student] is performing below the level of his peers. Furthermore, [the Student] is reported by his teachers to "make strange noises" in the classroom, and he has difficulty focusing his attention in class (Exhibit 5-1). The Student's "scores on the test of intellectual functioning were in the Average range, with a Full-Scale I.Q. score in the Average range. [The Student's] Full-Scale I.Q. score is comparable to that of his peers" (Exhibit 5-2)

The conference minutes from the CSE meeting of 5.19.21 state: The psychoeducational evaluation indicated overall avg [sic] range intellectual abilities. Speech and language evaluation indicated that he makes noises, poor reading comprehension, struggled with putting words together for pictures, poor grammar. Occupational therapy indicated the impulsive sensory input and is recommending services.

12:1:1 class; speech 2x3; OT 2x1; counseling 1x3, 1x1. Testing accommodations: extended time 1 ½; separate location, on task focusing prompts. The school and parent are in agreement with the team's recommendations (Exhibit 6-2).

The District's Witnesses

Exhibit 10 was admitted into evidence as Witness #1's direct testimony. There was no objection by the Parent to the admission of the document into the record (Tr. 64). Witness #1 addressed the District's protocol when mailing a PWN and SLL (Exhibits 3 and 4). The mailing of such documents is entered as an event in the District's electronic system, known as SESIS (Tr. 65-68). Witness #1 testified that the Student did not require a Behavioral Intervention Plan ("BIP") because "[t]he behaviors that the student was exhibiting were modest in the sense that they could have been successfully addressed in a small class setting, in -- with a -- with a classroom behavior modification plan, not individualized just for him, but for the class management in general." (Tr. 68-69). Witness #1 had not met the Student. Her testimony and opinions were based on her review of the educational records. Witness #1 felt qualified to issue an opinion: "[a]s an expert in the field for 24 years and the person who participated in over thousands IEPs meetings with the same recommendation, with different recommendations, I was determined to speak for the student's special education needs" (Tr.70-71, Exhibit 10-1). Witness #1 testified that the conference minutes, prepared by a member of the CSE IEP team, generally capture the essential information discussed during the meeting (Tr.72-73, Exhibit 6). As the 21-22 school year was the initial evaluation for the Student, the packet has a form wherein the parent provides consent for email exchange with the parent (Tr. 82-83).

Witness #2 has been employed by the District for 29 years. She has previously been a teacher and has been the Assistant Principal at the recommended school for 19 years. '[O]ne of my jobs is to look at every single IEP and program students to meet the requirements of each -- of their IEP" (Tr. 133). Witness #2, the Assistant Principal at the school recommended for the Student, testified that the public school could have implemented the Student's educational program for the 21-22 school year and there was a seat available for the Student on the first day of the school year (Tr. 95-96).

Witness #2 identified a document appearing after the page Bates stamped 7-8 as an events log for the Student. Witness #2 explained the purpose of the events log: "So it is a log of any contact that was made to the parent. It's usually in SESIS as part of the events. It's -- it's in SESIS as part of the events. Any notifications, letters sent to parents or anyone who's part -- who is part of the team" (Tr.102-104). The District had not disclosed the events log prior to the hearing and the Parent objected to the document, which was neither timely disclosed nor Bates stamped. The objection was sustained. However, at the end of the hearing, I permitted both parties to submit additional documents, including the events log (Exhibit 11) (Tr.104-110, 141. 215-217). Witness #2 did not receive a call or message from the Parent with respect to the Student's placement at the School (Tr. 112-115).

Students who do not have 40 total periods of academic classes and related services are placed in a general education class for those periods not otherwise filled. (Tr. 124). On re-direct Witness #2 testified as to the Student's recommended program and any unscheduled periods: "In looking at the IEP, I would say no, because there were ten math, ten literacy. I think it was five social studies and three science. Between the related services that the child received, lunches, and cluster periods, if anything, I think there might have been one period left in the -- in the program, if that. So no, I don't believe he would need to be placed in a general education setting during that time."

On re-cross, Witness #2 added that apart from the core curriculum and related services, the students in the public school take art, gym, and music classes, so it was unlikely that the Student would have a gap in his schedule and need to be placed in a general education class to fill that gap. The Student's IEP does not require that he needs a licensed special education teacher for art, gym, and music. The IEP does not recommend adapted physical education for the Student. The 12:1:1 class size is for ELA, math, science, and social studies. The recommended school has teachers trained in ABA and behavioral interventions (Tr. 124, 126-131, Exhibit 1-15-16).

Witness #2 testified that the recommended placement has "a program in our building called the REDACTED Program, which is for students with autism, so we've all been trained in ABA therapies and strategies to address behaviors and -- and needs and learning needs." The REDACTED Program is in every grade and the recommended public school has had the program in place for 11 years (Tr. 134).

The Parent's Witnesses

Witness #3, the Parent's first witness, the Program Director at the Private School, presented her direct testimony by affidavit. The affidavit was authenticated by the witness and moved into evidence, without objection by the District (Tr. 145-147, Exhibit S). Witness #3 is a board-certified behavioral analyst (Tr. 160). Witness # 3 testified that the Private School is:

…aligned itself with the New York State Common Core Curriculum, yet it was modified in many different ways in order to meet the needs of an individual student. The typical student in our program exhibits moderate delays in areas of language, communication, and behavior. Some students have additional cognitive disabilities, but not everyone, as there was a range. The program was also aligned with the ABA methodology, which means that we had very clear and direct instructions provided for each student, with very specific materials allocated for the instruction of each student, and very clear and direct reinforcement plans and a point system for individual students, as well as for the class as a whole (Exhibit S-2-3).

The Private School Program utilizes an electronic data collection program to create an individual profile for each student. Data is collected on a consistent basis so the Private School could visually observe, coordinate, and make sure that they have successful instruction for the individual student, and that the data drove the instruction (Exhibit S-3).

Witness #3 stated that the Private School has an eight-week summer program, a length of time that exceeds the six weeks required by the DOE (Tr. 150-151). Witness #3 testified that approximately 4% of the curriculum contains religious study. However, in the summer there is no religious component to the curriculum (Tr. 153-154). The Private School is a special education program and does not exclude students based on their religious affiliation (Tr. 154). When describing the curriculum Witness #3 testified:

Library is a component of our literacy. It's when they have independent learning of reading. The teacher usually begins with a listening comprehension component to it in the library. Then the students break off. It's the same format as our other academic instruction, direct instruction, shared instruction, independent, and follow up. Get -- the students have that range of materials they can choose from that piques their particular interest within their level of skill, you know, within their skill level. And then you asked about current events. And so current events is the opportunity for students to make text connections, that's text to self, text to text, and text to world. And that, again, is a component of their literacy, obviously, including the reading comprehension, the content instruction of being able to scan, identify titles, identify the vocabulary words, understand inference clues, but then that final component to it, the main priority, is that they make those connections (Tr. 158-159).

The Private School has embedded ABA methodology within their program (Tr. 159).

In her affidavit Witness #3 describes how the Student presented and his individual challenges. However, since Witness #3 presented one narrative for both the 21-22 and 22-23 school years, the testimony is of little probative value for getting a clear picture of the Student (Exhibit S-4-6). Similarly, in Witness #3's affidavit, there is no distinction between supports and strategies provided for the Student during the two school years in question (Exhibit S-9).

During her in-person testimony Witness #3 stated that the Student made the following progress during the 21-22 school year:

• "And so his computation skills and ability to analyze was something that we were able to progress in being able to move to abstract concepts, abstract thinking skills, and multiple steps of instruction. So that's when I said transitions and initiation of tasks, even if it was a two-step or three-step instructions, as long as it included numeric values and computation As long as it included numeric values and computation, we were able to improve in that area of skill and strength and bring him up in grade level." (Tr. 161). • Improved one full grade level in math (from beginning of 4th grade level to beginning of 5th grade level) (Tr. 162). • As far as his readiness skills for math, he came in far behind. His language, his information, his ability to respond to instructions, you know, components of his executive functioning as well as his language acquisition within a group setting are definitely impacted based on those skills. He came in far behind. And if you want me to put a grade level, I would say approximately 2nd grade level in consistency, ability, and sustaining time on task. And I would say that he moved to the beginning of 3rd grade level in that capacity within the math acquisition of information and material and the readiness. • In the area of problem-solving, he came in at the mid-5th -- 3rd grade level, approximately in the 5th grade level. And again, math by far, is his strength, and ended the year in the mid-4th grade level. (Tr.163), Witness #3 stated that the Student made the following progress during the 22-23 school year: • Student came in at the 5th grade level in math and moved up one grade level (Tr. 162). • In the area of problem-solving, he came in -- in the 6th grade, he came in at the mid4th grade level and ended the year at the mid-5th grade level (Tr. 163). The Student receives related services as follows: "So all the related services are pull-out. Even if he has related services that are group, they would pull out in a small group, and they're provided embedded in his schedule, usually between library and current events, depending on -- our related service providers are all full-time employees…" Related services are adjusted throughout the school year according to the Student's needs (Tr.165-166). Religious instruction is only in the morning between 8:45 a.m. and 9:15 a.m., solely limited to one-half hour four days each week (Tr. 166-168). Witness #4, Parent, presented his direct testimony by affidavit, admitted into evidence without objection from the District (Tr. 187-188, 191, Exhibit T). Witness #4's affidavit does not address the progress made by the Student at the Private School during either of the two school years. Witness #4 testified that the Student has opportunities to interact with typically developing peers during social skills and lunch (Tr. 202-204, Exhibit H). Witness # 4 stated that since attending the Private School, the Student talks more, cries less, is happier, and looks forward to going to the Private School (Tr. 204-205). The Parent did not request a 12-month program until 7.1.21, the day the 12-month school year began, and months after the 5.21.21 CSE meeting (Exhibit K-1). The Parent already had signed a 12-month contract on 6.17.21 (Exhibit F-3).

I allowed both parties to submit additional documents that were identified during the hearing. Neither party objected to the ruling (Tr. 215-217). Considering the foregoing, and as more fully discussed below, I find that a) the DOE offered the Student a FAPE for the 21-22 school year; b) the DOE conceded it did not provide FAPE to the Student for the 22-23 school year; c) the Private School offered the Student specially designed instruction sufficient to meet the Student's needs for the 22-23 school year and c) the equities do not favor the Parent.

Burden

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in a parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. ^[2]

Prong I

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE").^[3] A FAPE consists of specialized education and related services designed to meet a student's unique needs, provided in conformity with a comprehensive written Individualized Education Program ("IEP").^[4] A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits.^[5] In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." ^[6]

As to Prong I of the Burlington/Carter standard, the DOE met its FAPE burden at the hearing for the 21-22 school year. A reviewing court may fairly expect the DOE to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make appropriate progress considering his circumstances.^[7] Specifically, for the 21-22 school year, the CSE held an initial IEP meeting on 5.19.21(Exhibit D). The team was duly constituted with (i) a School Psychologist and District Representative, (ii) a Special Education Teacher, (iii) a District Representative, (iv) a Parent, and (v) the Program Director from the Private School (Exhibits B-20 and 6-1). The CSE IEP team considered the student's social history dated 1.19.21; classroom observation dated 4.19.21; speech and language assessment dated 3.11.21; occupational therapy assessment dated 3.8.21; and a psychoeducational evaluation dated 4.15.21 (Exhibit 4-2). The psychoeducational evaluation was conducted by an outside provider (Exhibit 5-3). All areas of concern were evaluated. The Student received a comprehensive set of evaluations to address all areas of parental concerns and to establish the student's level of academic and intellectual functioning at the time. The psychological evaluation provided the Student's intelligence quotient and academic functioning in reading, writing, and math (Exhibit 10-3).

The IEP discussed the Student's present levels of performance and academic, developmental, and functional needs. The Student was then attending the REDACYED grade in the Private School. It was reported that the Student's functional grade level in math was at a fourthgrade level, and in reading, the Student was functioning at a third-grade level (Exhibit 1-21). The IEP team recommended that the Student attend a ten-month school year in a special education 12:1+1 classroom for ten periods of Math, ten periods of ELA, five periods of social studies, and three periods of science (Exhibit 1-15-16). The IEP team also recommended that the Student receive counseling services (group), counseling services (individual), occupational therapy (individual), and speech-language therapy (group) (Exhibit 1-16). The IEP team considered but rejected Integrative Co-Teaching as well as a 12:1+1 in a community school (Exhibit 1-22). The Student was provided extended time-and-a-half time testing; on-task verbal and nonverbal focusing prompts, and minimal separate location testing. (Exhibit 1-18). The management needs section of the IEP noted that the Student would benefit from a small classroom setting with additional assistance in occupational therapy, speech therapy, and counseling (Exhibit 1-5).

The IEP also included goals to address academics, communication, reading comprehension, decoding, expressive and receptive language, executive function, management, social thinking, and motor and emotional regulation skills (Exhibit 1-7-15). The academic goals were based on information available to the IEP team and reviewed at the CSE meeting (Exhibit 10-3). Specifically, goals included were to (i) read word problems and accurately identify the appropriate steps; (ii) completion of multi-step algebraic problems; (iii) independently and accurately describe how words or phrases given meaning in a story; (iv) write a complete paragraph using proper English conventions when given a reading comprehension question; (v) improve his self-esteem by learning to verbalize his feelings related to academic competence and developing strategies to deal with his anxiety; (vi) increase expressive language by consistently producing four word utterances for a variety of pragmatic functions to comment respond request using plurals and possessives and age-appropriate tactical forms with and without prompts; (vii) respond to "wh" questions pertaining to activity with prompts as needed: and, (viii) improve his self-help and adaptive skills for increased independence at school and remain actively engaged on directed tasks for 3-5 minutes with directed task during the OT session given minimal prompting (Exhibit 1-7-14).

Witness #1 stated that a 12:1+1 is a full-time special education program so support is available during lunch and non-core subjects. Individual student needs are worked out with the school (Exhibit 10-3). Additional support outside of core subjects is addressed in the school and support staff is available as needed (Exhibit 10-3). There is a school-based support team with a social worker, a family worker, and a psychologist. There is also a counselor, a teacher, and nursing staff. There is also coordination and collaboration with the service providers (Exhibit. 10-3).

According to Witness #1, the Student did not require a behavioral interventional plan (Exhibit 10-3). She testified that the Student did not exhibit behavior that is typically exhibited by students who need a behavioral implementation plan. His behaviors were "modest in the sense that they could have been successfully addressed in a small class setting with a classroom (-wide) behavior modification plan not individualized just for him, but for the class management in general" (Tr. 68). The IEP had no data to support such need (Exhibit 10-3). Therefore, Witness #1 opined an individual behavior implementation plan was not necessary. His needs and behaviors could have been addressed in the small student-to-teacher ratio of a 12:1+1 special education classroom and a classroom-wide behavioral intervention plan (Exhibit 10-3).

The District submits that:

…[the] recommendation for speech, occupational therapy, and counseling individual and group was appropriate as it would provide [the Student] with continued support in keeping with [the Student's] demonstrated needs. (DOE Ex. 2). This IEP recommendation was appropriate because it would provide small-group instruction and sufficient support while enabling [the Student] to remain in the least restrictive environment. (Id.). [The Student] has average intelligence and needs to be in an environment that will build on his strengths. (DOE Ex. 10-3). The small class and occupational therapy were recommended to address the sensory integration difficulty that he showed. (DOE Ex. 10-3). The recommended setting would provide [the Student] with small group instruction, support, and individualized attention.

He was of average intellectual ability with grade-level math skills (IHO Exhibit 2-8).

On 8.6.2, the District offered the student a school placement (Exhibit 3). This placement was able to implement the IEP and had a seat available for the Student on the first day of the 21-22 school year. The PWN and a school location letter were sent to the Parent following the IEP meeting (Exhibits 3, 4, and 11-2). I take note of the documentary evidence that the District sent the PWN and SLL by email and regular mail to Parent and the Private School (Exhibit 11-2). I question the credibility of Witness #4 who stated that he did not sign anything; as the District had an email address for the Parent perhaps the mother of the Student signed certain documents and provided information. She did not appear at the hearing or provide testimony.

The Parent's DPC does not detail alleged deficiencies constituting a deprivation of FAPE for the 22-23 school year. In the closing summation and memorandum, the Parent's representative states that the IEP did not adequately address the Student's behavioral needs. Witness #1 addressed the issue in detail as set forth above. It bears noting that the Private School provides the Student with the same class size and related services recommended in the relevant IEP (Exhibits S-7 and 1).

Based on the foregoing, the District offered FAPE to the Student for the 21-22 school year. The District conceded that it did not offer FAPE to the Student for the 22-23 school year.

Prong II

A private school placement must be "proper under the Act."^[8] This means the private school must offer an educational program that meets the student's special education needs.^[9] Parents seeking tuition reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate."^[10] 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." ^[11]

Parents need not show that the placement provides every special service necessary to maximize the student's potential.^[12] 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."^[13] A private placement is appropriate if it provides instruction specially designed to meet a student's unique needs. ^[14]

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 benefits, 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. ^[15]

Private School was an appropriate educational program for the Student for the 22-23 school year The literature from the Private School states that their program believes in utilizing an interdisciplinary approach and collaborating with the students and their parents to work together for the benefit of each child. Some of the techniques implemented to accomplish the Private School's goals include the following:

• Direct teaching • Clearly structured, multisensory experiences in all subject areas • Instruction of academic and social skills in small, sequential step • Helping students find strategies that fit their learning style • Interwoven skills instruction and application in all areas both academic and social, throughout the day • Providing a physical setting in which distractions are minimized and staying on task is promoted • Low student-teacher ratio in all school activities and trips to assure prompt feedback and support • Setting of personal, social, and academic goals for each individual student (Exhibit M 4-5).

The Private School's Program Description describes the curriculum in detail, which includes Torah Studies and General Studies, which is comprised of ELA, math, science and social studies, physical education, sports, and music (Exhibit M 5-25). Parent's closing summation, however, provides little support for the Parent's contention that the Private School is an appropriate educational placement for the Student. The Parent's representative failed to cite any of the testimony adduced at the hearing and asserted allegations without providing support for the statements (IHO Exhibit 3-6-7). The progress reports from the teacher addresses the Student's level of performance, but his progress is rarely noted for the 22-23 school year: • Progress: Which positive behaviors increased, or negative behaviors decreased? Whereas in the beginning of the school year [the Student] had a hard time remaining seated in his chair, he can now remain seated without disruption. He has also stopped talking to his peers in the middle of instruction (Exhibit Q-28). • Math-Which concepts did the student grasp easily? Ordering and comparing whole numbers, Estimating, and rounding (both whole numbers and decimals) Addition and subtraction with 7-digit numbers (Exhibit Q-30). • Reading- [The Student] is continuing to progress with the current supports with his reading abilities and skills. How fluently can the student read a text? [The Student] can read most texts given to him in class fluently and without stumbling, even if those texts are above grade level. He reads beautifully and smoothly and is not overwhelmed by reading in the way that other students sometimes are. However, [the Student] does not read aloud. When the class is reading a story, or from a book, or even a short math problem, [the Student] will read to himself only and will not read aloud despite all the rewards and motivation offered to him (Exhibit Q-32). • [The Student} has responded to some of the interventions we implemented but not all. He has opened to his classmates a bit, as a result of some deals and compromises we've made with him, and he now participates in sports games, but he is still reserved and sometimes keeps his distance (Exhibit Q-35).

There is no report card in the record for the 22-23 school year when the Student was in the sixth grade. The OT, counseling, and SLT progress reports bear a date of 5/2022 (Exhibit Q-37-41). They have no applicability toward the 22-23 school year. During her live testimony Witness #3 stated that the Student made the following progress during the 22-23 school year: • Student came in at the 5th grade level in math and moved up one grade level (Tr. 162). • In the area of problem-solving, he came in -- in the 6th grade, he came in at the mid4th grade level and ended the year at the mid-5th grade level (Tr. 163).

Based on the foregoing, and the above findings of fact I determine that the Private School was an appropriate placement for the Student for the 22-23 school year.

No showing that a 12-month program was warranted for the 2022-2023school year

Parent's Representative states that the Student requires a 12-month program for the 22-23 school year but offers no support for the assertion (Exhibit B). In the closing written summation Parent's representative states: "[Witness #3} also testified regarding the need for the Student to receive a 12-month special education program (See Ex S-7 at P 17)" (IHO Exhibit 3-8). Witness #3 made a general statement about the Student and students like him requiring a 12-month program but did not point to any objective data, nor did she identify any specific deficiencies or areas of regression. Both IEPs for the Student recommended a 10-month program (Exhibits D and E). On 6.22.22, the Parent notified the DOE that it had not provided the Student with a proper or adequate educational and school placement for the upcoming extended 12-month 22-23 school year (Exhibits B-2 and R). There is no notation in the 5.23.22 IEP that the Parent requested an extended school year for the Student (Exhibit E).

Extended school year services are defined as:

"special education and related services that (1) [a]re provided to a child with a disability . . . [b]eyond the normal school year of the public agency; . . . [i]n accordance with the child's IEP; and . . . [a]t no cost to the parents of the child; and (2) [m]eet the standards of the [state education agency]." 34 C.F.R. § 300.106. Students are entitled to ESY services if "because of their disabilities, [they] exhibit the need for a 12-month service and/or program provided in a structured learning environment of up to 12 months duration in order to prevent substantial regression." 8 N.Y.C.C.R.R. 200.6(k)(1)(v) . Substantial regression is defined as: a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year. 8 N.Y.C.C.R.R. 200.1(aaa) (emphasis added)." ^[16] The Parent has not produced any evidence of regression, nor is there any evidence that the Student's regression, if any, was atypical—that his academic skills would regress after summer vacation or another extended break to the point that they could not be recouped in twenty-to-forty school days. ^[17]

The burden of production rests with the parent of the child seeking the extended school year.^[18] Parent's Representative provides no legal support for Parent's request for an extended school year. Accordingly, neither the facts nor the law support Parent's request for a twelve-month program for the Student.

Equities

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."^[19] 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 (1) the parent provided the Department with adequate notice of the withdrawal, (2) the amount of private-school tuition was reasonable, (3) the parent should have availed herself of need-based scholarships or other financial aid from the private school, and (4) there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or the arrangement with the school was fraudulent or collusive in any other respect. ^[20]

There is no evidence that the Parent obstructed or was uncooperative in the District's efforts to meet its obligations under the IDEA. The DOE did not present evidence that the Parent hindered its efforts to provide the Student a FAPE.

Parent cooperated with the DOE by attending the IEP meeting and by making his concerns known through statutory notice pursuant to 20 U.S.C. 1412 (a) (10) (C) (iii) (I) (bb). It is unclear whether the ten-day notice was timely as the start date of the 22-23 school year is not set forth in the enrollment contract. However, the notice was timely for the 10-month school year. (Exhibits M-1 and R).

The Parent has requested an award of direct tuition payment to the Private School. The record demonstrates that the Parent is liable for tuition to the school but lacks the financial means to pay the tuition in advance and await reimbursement (Exhibits M, N and T-2). The enrollment contract obligates Parent financially in the amount of $115,000.00 for the 12-month 22-23 school year, less the religious component of the program (Exhibit N). However, as there has been no showing that the Student requires an extended school year, the full tuition of $120,000.00 must be equitably reduced by two months, or $20,000.00, and then further reduced for the religious component of the curriculum. The District is directed to fund tuition for the Student in the amount of $95,000.00 for the 22-23 school year. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA.^[21] The Southern District of New York has recently ruled that the inability to pay tuition is not a requirement for direct retroactive funding payment. ^[22]

While not insignificant, the District did not challenge the reasonableness of the cost of the tuition associated with the Private School. Overall, and after considering the record at the hearing, I find that the equities support Parent's claim for direct funding of the tuition for the 22-23 school year in the amount of $95,000.00.

The undersigned has reviewed the Parent's remaining contentions and finds 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.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

(1) The District provided FAPE for the Student for the 2021-2022 school year, and the Parent is not entitled to funding for the unilateral placement for the 2021-2022 school year.

(2) The District failed to provide FAPE for the Student for the 2022-2023 school year and the Parent's claim for tuition funding for the Private School for the 10-month 2022-2023 school year in the amount of $95,000.00 for the Student's unilateral placement is GRANTED and the District shall pay tuition to the Private School directly in the amount of $95,000.00 for said tuition payments.

Dated: November 6, 2023

Michelle S. Babbitt

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

DISTRICT EVIDENCE

1. Individualized Education Program 5.19.21 20 pages DOE

2. Notice of IEP Meeting 5.5.21 3 pages DOE

3. School Location Letter 8.6.21 1 page DOE

4. Prior Written Notice 8.6.21 13 pages DOE

5. Psychoeducational Evaluation 4.15.21 4 pages DOE

6. Conference Minutes 5.19.21 3 pages DOE

7. Occupational Therapy Evaluation 3.8.21 8 pages DOE

8. Speech Language Therapy Evaluation 3.10.21 5 pages DOE

9. Social History Assessment Report 1.19.21 2 pages DOE

10. Affidavit of Redacted, CSE 6 8.10.23 4 pages DOE

11. Event Log for Redacted from SESIS Dates from Dec 1, 2015 - June 30, 2023 Various 6 pages DOE

PARENT EVIDENCE

A. Request for Due Process Proceeding and Notice of Appearance 2021-2022 5.2.22 7 pages

B. Request for Due Process Proceeding and Notice of Appearance 2022-2023 7.14.22 5 pages

C. Order of Consolidation 01.26.23 2 pages

D. IEP 2021 5.19.21 20 pages

E. IEP 2022 5.18.22 23 pages

F. Student Contract, Program Description, and Curriculum 2021-2022 06.17.21 16 pages

G. Affirmations regarding Tuition Breakdown and Payments 2021-2022 08.04.22 2 pages

H. Curriculum Schedule 2021-2022 2021-2022 1 page

I. Student Attendance 2021-2022 2021-2022 1 page

J. Assessments, Plans, and Reports 2021-2022 Various 46 pages

K. Ten-day Notice from Parent to DOE 7.01.21 2 pages

L. Follow Up Ten-day Notice from Parent to DOE 08.16.21 2 pages

M. Student Contract, Program Description, and Curriculum 2022-2023 6.23.22 25 pages

N. Affirmations regarding Tuition Breakdown and Payments 8,10.22 2022-2023 2 pages

O. Curriculum Schedule 2022-2023 2022-2023 1 page

P. Student Attendance 2022-2023 2022-2023 1 page

Q. Assessments, Plans, and Reports 2022-2023 Various 46 pages

R. Ten-day Notice from Parent to DOE 06.22.22 2 pages

S. Affidavit of School Supervisor Undated 11 pages

T. Affidavit of Parent Undated 3 pages

U. Medicaid Benefits Card Undated 1 page

V. Notice of Decision on Public Assistance 06.22.23 1 page

W. HRA Cash Assistance Online Recertification 08.22.23 29 pages

IHO EXHIBITS

1. Prehearing Conference Summary and Order 6.29.23 10 pages IHO

2. Parent's closing brief 10.16.23 10 pages IHO

3. District closing brief and memorandum of law APPENDIX Information Term Used In FOFD Redacted Student Redacted, Esq., Parent Attorney/Representative Redacted, Esq., Consultant District Impartial Hearing Attorney/Representative Representative Redacted Program Private School Redacted, CSE 6 Witness # 1 Redacted Witness # 2 Redacted, BCBA, Program Witness # 3 Supervisor, Private School Redacted Parent Witness # 4 L.V. v. NYC Department of Education, 03 Civ. 9917 (SDNY) Parents of children with Individualized Education Programs who received or who may receive an order at the conclusion of an impartial hearing should read the attached notice about possible disclosure of information and documents about their children as part of a federal court litigation. Translations in Spanish, Arabic, Bengali, Chinese, French, Haitian Creole, Korean, Russian, and Urdu are available on the DOE webpage at https://www.schools.nyc.gov/learning/special-education/help/impartial-hearings Notice of Potential Disclosure of Student Education Records Please read this notice carefully. This is a message about possible disclosure of documents or data that might contain information about your child, if your child has been classified as a student with a disability and has been or may be the subject of a final Impartial Hearing Order. I. Nature of the Lawsuit This lawsuit challenged the failure of the Department of Education ("DOE") of the City of New York to timely implement orders issued by impartial hearing officers in connection with impartial hearings held pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 10.17.23 1400, et seq. and N.Y. Education Law § 4401, et seq. In 2007, the parties entered into a Stipulation of Settlement (the "Stipulation") in which the DOE agreed to timely implement these orders. In January 2021, the Court granted plaintiffs' motion for the appointment of a special master. On April 14, 2021, the Court entered an Order appointing David Irwin of Thru-Ed as the Special Master. On May 14, 2021, the Court entered an Order detailing the duties and authority of the Special Master which include, among other things, the authority to review DOE's processes for implementing impartial hearing orders and to recommend to the Court improvements to enable 13 pages IHO

II. DOE to timely implement orders a. Pursuant to this Order, the Special Master may have access to education records of students, upon DOE's compliance with the Family Education Rights and Privacy Act (20 U.S.C. § 1232g; 34 C.F.R. Part 99) ("FERPA"). 2 Data Ordered to Be Disclosed In order for the Special Master to perform his duties, the Court has directed the DOE to provide the Special Master (and employees and consultants at Thru-Ed) with access to records containing confidential student record information, including, but not limited to, documents submitted in the impartial hearing process, impartial hearing orders, data about compliance, and students' special education documents, such as individualized education programs, evaluations, authorizations, invoices, etc. The Special Master is required to keep any student documents and information confidential. No student-specific information will be shared with plaintiffs' counsel unless the student's parent specifically consents. If there is any student-specific information in the Special Master's reports to the Court, that information would not be made public. The Special Master will use this information only for his work to review DOE's processes for implementing impartial hearing orders and to recommend to the Court improvements to enable DOE to timely implement orders. The disclosure of this information does not affect any of your rights as a parent to seek special education services for your child. IV. Objections to Disclosure If you agree to the disclosure of this information to the Special Master, you do not need to do anything more. If you do not want your child's information shared with the Special Master, you must object to this disclosure by submitting an objection to DOE's attorney, addressed to: Jeffrey S. Dantowitz NYC Law Department 100 Church Street, Room 2-121 New York NY 10007 IHO or. via email at LVObjection@law.nyc.gov. Please reference the LV v. DOE lawsuit (Case No. 03-9917) when writing. An Objection Form accompanies this Notice, though no written objection will IHO be. rejected if it is not submitted on this form. If you object, no records containing you and your child's personally identifiable information or other FERPA-protected information will be provided to the Special Master, although nominal and incidental disclosure of your child's name may occur. Any objections must be received by December 3, 2021 or for impartial hearing orders issued after November 12, 2021, within 3 weeks of the issuance of the impartial hearing order. IHO

If. you would like more information about this notice, please contact the attorneys for plaintiffs, Rebecca Shore, of Advocates for Children of New York, Inc. at 646-532-6078. IHO

OBJECTION TO DISCLOSURE OF RECORDS LV v. DOE, 03 Civ. 9917 (SDNY)

If you agree to the release of information about your child to the Special Master appointed in L.V. v. DOE, you do not need to complete this form.

If you object to the release of information about your child to the Special Master appointed in L.V. v. DOE, please compete and return this form to: Jeffrey S. Dantowitz NYC Law Department 100 Church Street, Room 2-121 New York, NY 10007 or via email at LVObjection@law.nyc.gov

Child's name:

Name:

Address: Impartial Hearing Order Case # (if known): Date of Order (if known): If you object to the release of your confidential information, please check the line below: ______ I do not agree to have my confidential records disclosed to the Special Master in L.V. v. DOE.

Date Please sign here

If you object to the release of information, your objection must be received by December 3, 2021 or, for impartial hearing orders issued after November 12, 2021, within 3 weeks of the issuance of the impartial hearing order. * * * If you do not notify the DOE of your objections to the documents being released, you child's information will be provided to the Special Master appointed in LV v. DOE, 99 Civ. 9917 (SDNY) and/or consultants and employees of Thru-Ed. The information will remain confidential and the disclosure of this information will not affect any of your rights to seek special education services for your child.

https://www.schools.nyc.gov/learning/special-education/help/impartial-hearings ‫ﻟﻼطﻼع ﻋﻠﻰ ھﺬا‬ ‫ ﻗﻢُ ﺑﺰﯾﺎرة اﻟﻤﻮﻗﻊ اﻹﻟﻜﺘﺮوﻧﻲ‬،‫اﻟﻤﺴﺘﻨﺪ ﺑﺎﻟﻠﻐﺔ اﻟﻌﺮﺑﯿﺔ‬ YgÄ sÄOxÄ tÄzÄè ná^lá, https://www.schools.nyc.gov/learning/specialeducation/help/impartial-hearings ná^Ép 若要以中文查看，請上網到 https://www.schools.nyc.gov/learning/specialeducation/help/impartial-hearings Pour consulter ce texte en français, allez sur https://www.schools.nyc.gov/learning/specialeducation/help/impartial-hearings Pou wè tèks sa a an kreyòl ayisyen, ale sou https://www.schools.nyc.gov/learning/specialeducation/help/impartial-hearings 본 문서를 한국어로 보시려면 다음 웹사이트를 이용하십시오: https://www.schools.nyc.gov/learning/special-education/help/impartial-hearings Для просмотра документа на русском языке посетите https://www.schools.nyc.gov/learning/special-education/help/impartial-hearings Para ver este contenido en español, visite https://www.schools.nyc.gov/learning/specialeducation/help/impartial-hearings https://www.schools.nyc.gov/learning/special-education/help/impartial-hearings ‫اس ﮐﻮ اردو ﻣﯿﮟ‬ ‫دﯾﮑﮭﻨﮯ ﮐﮯ ﻟﯿﮯ ﭘﺮ ﺟﺎﺋﯿﮟ‬

Footnotes

[1] Tr. = transcript from 8.17.23 hearing, with reference to page from transcript..

[2] See NYS Educ. Law § 4404(1)(c); R.E. v. N.Y.C. Dept. of Educ., 694 F.3d 167, 184-185 (2d Cir. 2012), C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 835-836 (2d Cir. 2014).

[3] See 20 U.S.C. § 1400 (d)(1) (A)

[4] See 34 C.F.R. § 300.13

[5] See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

[6] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

[7] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).

[8] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); see also Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359, 370 (1985).

[9] 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).

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

[11] Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)

[12] See Frank G., 459 F.3d at 364-65.

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

[14] See 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).

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

[16] D.D-S. v. Southold Union Free Sch. Dist., No. 09-CV-5026, 2011 WL 3919040 at pp.48-49 (E.D.N.Y. Sept. 2, 2011)

[17] Extended School Year Programs and Services Questions and answers, http://www.p12.nysed.gov/specialed/finance/2011QA.pdf (emphasis added); see also Application of a Child with a Disability, Appeal No. 08-078, at 21-22; Application of a Child with a Disability, Appeal No. 07-089, at 8 n.3. Id.

[18] See Brennan v. Reg'l Sch. Dist. No.1 Bd. of Educ., 531 F. Supp. 2d 245, 273 (D. Conn. 2008)

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

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

[21] See e.g., Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (parents may seek direct funding in the instance in which, "due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so").

[22] Cohen v. N.Y.C. Dep't of Ed, 2023 U.S. Dist. LEXIS 171815 (S.D.N.Y.9.28.23)