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Special Education Law
DECISIONParent PrevailedIHO Case No. 226259

New York City Department of Education, Impartial Hearing Decision

July 23, 2022·Daniel Ajello·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 572812 - NYC: 226259

FINDINGS OF FACT AND DECISION

Case Number: 226259 Student's Name: [REDACTED] Date of Birth: [REDACTED] District: [REDACTED] Hearing Requested By: Parent Date of Hearing: 06/30/2022 07/13/2022

Actual Record Close Date: 07/22/2022

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 06/30/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 07/13/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

[REDACTED], Parent

[REDACTED],

Education Management Professional

[REDACTED], Ph.D., Psychologist

For the Department of Education: [REDACTED], District Representative

DOCUMENTS ENTERED INTO THE RECORD

PARENT DOCUMENTS

Exhibit

Date

Description

Pages

Entered

A 5/6/22 Due Process Complaint/DPC 5 06/30/2022

B 1/25/22 Letter to DOE 2 07/13/2022

C Various Correspondence w/DOE 4 07/13/2022

D Spring 2022 Neuropsychological Evaluation 23 07/13/2022

E 1/28/22 [REDACTED] School Enrollment Contract 1 07/13/2022

F 6/29/22 Tuition Affidavit 1 07/13/2022

G Spring 2022 Student Schedule 1 07/13/2022

H Spring 2022 Q3 Report Card 2 07/13/2022

I Spring 2022 Q4 Report Card 2 07/13/2022

J 2021-2022 SY Program Description 4 07/13/2022

K Feb – Dec 2021 Tutoring Invoices 4 07/13/2022

L 1/31/22 Transcription 1 07/13/2022

M 07/13/2022 Affidavit of [REDACTED] 8 07/13/2022

N 07/13/2022 Affidavit of [REDACTED] 6 07/13/2022

HEARING OFFICER DOCUMENTS

Entered 06/30/2022

  • • Notice of appointment, 06/24/2022, four pages

Entered 07/13/2022

  • • Notice of Appearance, 07/06/2022, 1 page

DEPARTMENT OF EDUCATION

Entered 07/13/2022

  • • 2021-2022 Grades, 5 pages

INTRODUCTION

On 06/24/2022, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Hearing commenced, on 06/30/2022, to allow the DOE an opportunity to present a defense to the allegations contained in the DPC.

Appended to the record are lists of persons in attendance and the documents received in evidence.

Due Process Complaint (DPC) alleges a failure of the DOE to provide Student with a free appropriate public education (FAPE), for the '21/'22 school year. Parent seeks relief in the form of funding for a unilateral placement along with reimbursement of expenses and transportation related to the [REDACTED]/Unilateral Placement (UP). (Ex A 1)

THE POSITION OF EACH PARTY

The DOE Representative appeared at Hearing, of 06/30/2022, and sought additional time for the DOE to work with the Parents to figure out how to proceed. (T 4-5)

The IHO noted the Parent first advised the DOE of the current issue, back on 01/25/2021. (T 5, Ex B)

The DOE Representative was unaware of any action the DOE has taken, since that time. (T 5)

The DOE opted not to present a case defending against the allegations contained in the DPC, except to state: “No, we're not going to put on a case because we have no knowledge that this student was ever entitled to an IEP or denied FAPE.” (T 6)

At Hearing, of 07/13/2022, the Parent Attorney outlined the Parent’s Case, via opening statement, which included:

  • • An allegation that the DOE failed to provide the Student with a free and appropriate public education for the 2021/2022 school year and failed to meet its obligation to identify and evaluate the Student when there was “was ample reason to suspect that she had disabilities, particularly in light of the fact that she was, at the time, attending a New York City DOE school, a school that we shall see knew very well that [Student] was struggling.” (T 24-25);
  • • A review of the Student’s educational history, including attending 11th grade at the UP, for the 21-22 school year;
  • • Placement at the UP resulted “because of the critical emergency situation in which they found themselves with their daughter;
  • • Student has been diagnosed with: ADHD, predominantly inattentive presentation of a mild to moderate severity, generalized anxiety disorder, [REDACTED] disorder, and [REDACTED] disorder;
  • • Student previously received accommodations from the DOE, “including extra testing time and classroom/curriculum accommodations;
  • • Student symptoms have had an impact on her social and emotional development, and to a lesser extent, her academic development;
  • • Student has also been hospitalized not only for [REDACTED], but for an [REDACTED], and she has experienced debilitating mood swings, unstable peer relationships, and executive functioning difficulties.” (T 25);
  • • Student attended a DOE Public School until her condition worsened, resulting in Student being hospitalized and eventually a transfer to the UP;
  • • Parents continuously cooperated with the DOE and advised them of the Student’s situation, even returning the Student to the Public School, after the hospitalization (T 26);
  • • Student condition worsened, Parents reached out to the DOE, received a quick initial response, and then no further information;
  • • Parents received no response and no IEP for the Student (T 26);
  • • Student’s did receive specific recommendation from her treating psychologist, Dr. [REDACTED], who has provided Testimony (T 26, Ex N);
  • • Recommendations led to Student placement at the UP: “where her complex emotional needs and academic needs could be met in an appropriate setting, where she could have consistent, clear structures and the necessary interventions to stop her condition from deteriorating further” (T 26);
  • • Parent sought IEP meeting with the DOE, hopeful of an appropriate DOE placement;
  • • Parent also notified the DOE: “they could not allow their daughter to d deteriorate any further and informed the DOE of their intention to seek tuition reimbursement at the public expense for [Student’s] enrollment at UP for the 2021/2022 portion of the school year that she attended there in the event that the DOE failed to provide her with an appropriate program placement in a timely manner (T 27);
  • • Parent seeks to establish appropriateness of the UP, and obtain relief sought of:
  • • Reimbursement of Tuition for Student attendance at the UP, related to the 21-22 school year;
  • • Costs incurred for the tutoring necessitated by the DOE's failure to meet its obligation to identify and evaluate [Student] when there was ample reason to suspect that she had disabilities prior to the parent's referral. (T 29)

Testimonial and Documentary evidence is uncontroverted, found to be credible and supportive of the Parent’s case. Each are considered below:

[REDACTED], Parent

Witness Testimony included:

  • • Being Student’s Parent (T 45);
  • • A review of Student’s diagnosis (T 46-47);
  • • Parent notes that while the Student’s Public School 21-22 Report Card has good grade, they were slipping, since there was not enough information to develop a grade (T 45-46);
  • • Parent was in touch with the Public School, whose personnel were supportive (T 46);
  • • Witness called the school right away when the Student was hospitalized in October 2020 (T 46);
  • • Parent wanted the Student to remain at the Public School (T 47);
  • • Student returned to the Public School, in October 2021;
  • • “And we saw, soon after that…she was trying to make it work, that things really started to deteriorate again in terms of her isolating, her being depressed and anxious. And we had talked with [REDACTED] {Public School Administrator) about it. You know, you could hear in that voice mail that…she knew that it was coming. You know she said that she saw [Student]…increasingly isolate at school.” (T 47-48);
  • • Student Doctor introduced Parent to the UP, and the support of DBT (T 48); and
  • • Referring to the call detailed in Exhibit L, Witness states that she created the translation of the message that was left for her, noting a good relationship with the Public School, who was concerned for the Student, and seemed to support the Parent’s decision to enroll the Student, at the UP. (T 49-50)

[REDACTED], Ph.D., Psychologist

Witness swore to the accuracy of her Affidavit. (T 31, Ex N)

Testimony at Hearing included:

  • • Familiarity with the UP, and the Student’s struggles. (T 34-35)

[REDACTED], Education Management Professional

Witness swore to the accuracy of her Affidavit. (T 37, Ex M)

Testimony at Hearing included:

  • • The UP is not a New York State Approved School (T 39); and
  • • Exhibit N contained an error, referring to January 21, where it should be January 22. (T 41-42, Ex M 60)

A 5/6/22 Due Process Complaint

DPC reviews the Student’s educational history.

For the 21-22 school year the Student was [REDACTED] years old, attending 11th grade, with a variety of diagnosis affecting her schooling. (Ex A 2)

Student has been attending Public School, until severe anxiety caused Student to be hospitalized, eventually returning to Public School. (Ex A 2)

Student has also attended three separate residential placements. (Ex A 2)

In January 2022 Student conditioned worsened, and Parent’s reached out to ethe DOE to request an emergency IEP meeting, without success. (Ex A 2-3)

The Parent alleges the DOE failure to conduct the IEP meting and offer appropriate placement, results in a denial of FAPE. (Ex A 3)

Parent ultimately placed the Student at the UP, and seeks relief in the form of funding for a unilateral placement along with reimbursement of expenses, including tutoring, and transportation related to the [REDACTED]/Unilateral Placement (UP). (Ex A 4)

B 1/25/22 Letter to DOE

Parent details concerns related to the Student, her safety and education, imploring the DOE do develop an IEP, and placement: “While we are hopeful that the CSE will recommend an appropriate program and placement for [Student] light of her continuing struggles, we are forced to secure an appropriate placement for her immediately. This letter, therefore, serves to inform you of our intent, absent an appropriate program and placement, to enroll [Student] at the aforementioned (UP) for the remainder of the 10-month 2021-2022 academic school year and to seek reimbursement for her program and placement. Of course, we will consider any appropriate program and placement proposed by the CSE.” (Ex B 2)

C Various Correspondence w/DOE The DOE acknowledges receipt of the Parent letter (Ex B), and forwards said correspondence to additional DOE staff. (Ex C 1)

D Spring 2022 Neuropsychological Evaluation

Details Students educational history, severe challenges and diagnosis.

Evaluation notes:

“[Student] has a significant history of ADHD, severe anxiety and [REDACTED ([REDACTED, [REDACTED]), [REDACTED], and [REDACTED], which has led to significant self-esteem issues, [REDACTED], [REDACTED] behaviors, and a number of hospitalizations, as well as significant social difficulties and performance difficulties in school. Since January of 2022, she has attended The [UP] in [REDACTED], which is a highly specialized, therapeutic day school that is designed to support students with both learning and emotional concerns. With this highly individualized programming and small-class and specialized school design, [Student] has been able to demonstrate notable progress, both academically and social-emotionally.” (Ex D 12)

Diagnosis include:

  • • Attention-Deficit/Hyperactivity Disorder (ADHD), Predominantly inattentive presentation (Moderate severity) (Ex D 12);
  • • Generalized Anxiety Disorder;
  • • [REDACTED] ([REDACTED]; and
  • • [REDACTED]. (Ex D 13)

Recommendations are made regarding Student, which include, remaining at a placement, such as the current UP:

“…continued placement in a small (i.e., student-to-teacher ratio; classroom size not to exceed 8-10 students), structured, and supportive classroom setting that is housed within a small, fulltime, therapeutic day school environment that can provide her with consistent daily, academic, and social-emotional support for her unique areas of need. Her educators and school staff should be familiar with students who present with similar cognitive and academic potential, and should have the proper training in delivering appropriate and intensive evidence-based services (i.e., DBT; executive functioning coaching) that have shown to be effective in remediating these types of students’ social emotional difficulties and overlapping areas of academic weakness. Moreover, [Student] should be placed in an environment that has a school-wide therapeutic/social skills curriculum supporting its academic program, and peers should present as well-behaved and should not present with significant acting out or aggressive behaviors. It should be noted that placement in a less restrictive setting with a larger class size (i.e., ICT environment) would not be appropriate for [Student] and lead to both academic and social-emotional regression.” (Ex D 23)

E 1/28/22 [UP] Enrollment Contract

UP Tuition is evidenced to be $27,350.00, for the Student’s period of 21-22 enrollment. (Ex E 1)

Parents obligate themselves to payment via signature upon the Contract. (Ex E 1)

F 6/29/22 Tuition Affidavit

UP Tuition is evidenced to have been paid in full.

G Spring 2022 Student Schedule

Student basic 11th grade schedule is detailed.

H Spring 2022 Q3 Report Card

UP Report Card details Student academics, and goals, noting performance, and challenges throughout.

For example, in English:

“During this quarter, [Student] completed a research project about various issues in the mental healthcare system and proposals for solutions to those issues. She displayed a strong capacity for driving her own research process. She was able to effectively find and digest sources, both for comprehension and to inform the opinions that she developed based on available facts and her own critical thinking. She successfully developed a presentation based on her research and ideas and presented it to the class. Her reading, writing, thinking, and vocabulary skills are all in a great place for her level; next, I'd like to see her increase the flexibility of her thinking and be open to new and different ideas, both in the form of conceptual information and feedback about her own work.” (Ex H 1)

I Spring 2022 Q4 Report Card

UP Report Card details Student academics, and goals, noting performance, and challenges throughout.

For example, in Algebra:

“It’s been a pleasure having [Student] in Algebra 2 class. From factoring, focus and directrix, computing simple interests, and to arithmetic, geometric, and recursive series, she has done everything she could to ensure her grades would be as high as possible, helped her classmates, and advocated for herself when she didn’t understand a concept. Despite being relatively new, she has created a culture of encouraging academic competition with her classmates.” (Ex I 1)

J 2021-2022 SY Program Description

General UP characteristics are detailed.

Student Individual and Group Counseling Program, 11th grade program, has a focus on career exploration/social development, post-secondary planning, and consideration of future goals. (Ex J 1)

Student supports of: Speech Language & Literacy and Excel! Extended Day programs are outlined. (Ex J 2)

General School description includes: addresses needs including learning disabilities, attention disorders, and emotional struggles; two learning specialists, both Special Education Certified; a full time guidance counselor; a school social worker; and a speech language pathologist/literacy specialist on staff. (Ex J 3)

K Feb – Dec 2021 Tutoring Invoices

Student Tutoring Invoices covering period from 02/01/2021 through December 2021.

About 20 of the 23 total hours being provide in February of 2021.

L 1/31/22 Transcription

As referred to in Parent Testimony, this evidence details the message left for the Parent, by the Public School Administrator.

The message confirms the reasonable relationship between Parent and school, and awareness of the school of the Student challenges.

M 07/13/2022 Affidavit of [REDACTED]

Academic Dean of the UP provides Testimony, that includes:

  • • Witness qualifications (Ex M 1-2);
  • • General UP characteristics include:
  • • independent school which offers a highly individualized education program and structured, nurturing learning environment designed to address students’ learning needs and social-emotional growth;
  • • a college preparatory curriculum, but the school’s intensive services lend to a more therapeutic environment, enabling it to target and accommodate a wide variety of special educational needs;
  • • member of The Independent Schools Admissions Association of Greater New York;
  • • accredited by the Middle States Association on Elementary and Secondary Schools;
  • • chartered by the New York State Department Board of Regents; and
  • • associate member of New York State Association of Independent Schools (Ex M 2);
  • • “typical profile of a student attending the [UP] is one with average to above average intelligence who has struggled in larger, less supportive learning environments. Although amenable to a wide range of student disabilities, the school specializes in serving students with a history of depression, anxiety, school refusal, Attention Deficit Hyperactivity Disorder (“ADHD”) and related disorders, Pragmatic Communication Disorder and who may have histories of low self-esteem and/or poor academic success” (Ex M 3);
  • • Student admission process is reviewed (Ex M 3);
  • • Classes are no larger than 8, with two learning specialists who work in tandem with the teachers to establish best practices for each individual student (Ex M 3);
  • • Staff at the [UP] employ a transdisciplinary, collaborative approach to ensure that each aspect of a child’s learning and social-emotional needs are addressed consistently throughout the school day. All staff working with a student, including the learning specialist, teachers, and related service providers, meet once per week to review each student’s progress and, if appropriate, modify the student’s plan (Ex M 4);
  • • “significant experience working with students with Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder, Specific Learning Disorder with Impairments in Reading and Written Expression, and Unspecified Anxiety Disorder. Students with these profiles benefit from our program due to the small class sizes individualized instruction as well as the small, highly structured setting” (Ex M 4);
  • • Familiarity with the Student;
  • • Review of Student’s academic and emotional profile and diagnosis, and a belief the UP is an appropriate placement for the Student; (Ex M 5);
  • • Student is noted to have worked with the school counselor to acclimate to the school successfully (Ex M 5);
  • • Student was approaching grade level academically and was placed is a class with students of similar aptitude, no larger than an 8:1 ration (Ex M 6);,
  • • Review of Student teachers and their qualifications (Ex M 6);
  • • Student received Counseling, one individual and one group session weekly (Ex M 6);
  • • Student supports included: establishment of an academic profile to be used by all teachers and staff; testing accommodations; classroom accommodations;

suggestions/techniques for classroom management; notes on Student’s learning needs are outlined within a Student profile to ensure each teacher is utilizing tools (graphic organizers, planners, differentiated activities, notes) that will help Student work toward her academic potential;

  • • “With individualized instruction and support, [Student] made progress in all areas. The amount of support to aid [Student] diminished over the course of the year, and she consistently maintained high averages in her courses. In addition to her strong report card marks, [Student] demonstrated notable gains in terms of her social emotional growth such as building and maintaining friendships with her peers, establishing positive rapport with her teachers and school staff, ability to self advocate, and growth toward preparing for post secondary goals.” (Ex M 7);
  • • Student UP Tuition, $27,350..00, has been paid in full, by the Parent; and
  • • UP is an appropriate placement for the Student for the 21-22 school year. (Ex M 7)

N 07/13/2022 Affidavit of [REDACTED]

Parent details her professional qualifications. (Ex N 1)

Parent details Student educational history, including a review of the Student’s complex psychiatric history, and history of changing educational placements. (Ex N 1-3)

Parent engaged in Student tutoring services she believed were necessary given Student’s condition, in the wake of emotional deterioration. (Ex N 3)

Student condition, upon return to the Public School, in October of 2021, began to decline. (Ex N 4)

Parent notes the impact of Student challenges upon academics, which can mask the Student’s severe challenges. (Ex N 4)

Parent views the academic pressures as part of a potential academic and social collapse, which Tutoring services may have helped alleviate. (Ex N 4-5)

Parent enrolled the Student at the UP, upon recommendation of the Student’s doctor and consideration of the UP’s use of DBT, as a support. (Ex N 5)

Parent notes the successful impact of the UP upon the Student.(Ex N 5-6)

Parent, professionally, and as a Parent testifies: “I have no doubt that that The [UP] is an appropriate placement for [Student]. In fact, as mentioned, it is actually one of the very few placements where [Student] could succeed and thrive. In my professional opinion, The [UP] has effectively saved [Student]’s life and is providing a safe and appropriate for a young person with very serious challenges that left unaddressed could be extremely dangerous and even fatal for her.” (Ex N 5)

Parent notes familiarity with the UP and Student supports, believing it to be an appropriate Student placement: “this because it features many of the educational aspects, I believe necessary for [Student]. For example, it features small classes, one on one support with instructors and advisors, 24/7 support, individual and group therapy opportunities as well as rigorous academics and an appropriately challenging curriculum given [Student]’s cognitive and academic capacity.” (Ex N 6)

1 2021-2022 Grades, 5 pages

Public School grade report reflects Student successful accumulation of credits.

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 2021-2022 School Year

DOE opted to present no defense to the Parent’s allegations.

Despite the Student’s complex and urgent educational history, and need for some type of intervention, the DOE still has not taken action to address the Student’s special education needs.

No evidence is provided that the Parent frustrated any attempt, if ever there was one, to offer the Student a FAPE, at any time.

Parent notes a reasonable relationship with the school, even returning the Student to the School in October of 2021, wanting to continue the Public School placement. (T 47-48)

Parent sought out DOE intervention, via an expected IEP, in January of 2022, without a proper response. (Ex B)

The DOE has not evidenced development of an IEP for the Student.

DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 21-22 school year.

I find the DOE failed to offer the Student a FAPE for the 21-22 school year.

The DOE was aware of the Student challenges, as revealed in the Student educational history, which includes residential placements, and a suicidal attempt. (T 25)

Parent Testimony regarding Student decline over the years, especially once returned to school in October of 2021, is uncontroverted.

The DOE’s submission of the Student’s academic success in accumulating credits does not diminish the Student’s urgent need, throughout the past several years, for special education interventions. (Ex 10)

Beyond the most current failure of the DOE, to respond to the Parent request for an IEP in January of 2022, the DOE also failed to act properly under “Child Find” provisions of the IDEA.

The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446 F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 [D. Conn. 2008], aff'd, 370 Fed. App'x 202 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 CFR 300.111; 8 NYCRR 200.2[a][1], [7]).

The IDEA places an ongoing, affirmative duty on State and local educational agencies to identify, locate, and evaluate students with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 CFR 300.111[a][1][i]; Forest Grove, 557 U.S. at 245; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][1], [7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004]).

The "child find" requirements apply to "children who are suspected of being a child with a disability... and in need of special education, even though they are advancing from grade to grade" (34 CFR 300.111[c][1]; see 8 NYCRR 200.2[a][1], [7]; D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. 2011]).

To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children (34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][1], [7]).

Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. Dist. of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [noting that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"]; see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094).

A district's child find duty is triggered when the district has "reason to suspect a disability and reason to suspect that special education services maybe needed to address that disability" (J.S., 826 F. Supp. 2d at 660, quoting New Paltz Cent. Sch. Dist., 307 F. Supp. 2dat 400 n.13).

Additionally, the "standard for triggering the child find duty is suspicion of a disability rather than factual knowledge of a qualifying disability" (Reg'l Sch. Dist. No. 9 Bd. Of Educ. v. Mr. and Mrs. M., 2009 WL 2514064, at *12 [D. Conn. 2009]). To support a finding that a child find violation has occurred, "the [d]istrict must have 'overlooked clear signs of disability or been negligent by failing to order testing, or there must have been no rational justification for deciding not to evaluate'" (J.S., 826 F. Supp. 2d at 661, quoting Bd. of Educ. of Fayette Cnty.v. L.M., 478 F.3d 307, 313 [6th Cir. 2007];see A.P., 572 F. Supp. 2d at 225).

In this case the Student educational history includes residential placements and a [REDACTED], back to October of 2020. (Ex N 3)

Student attended a residential treatment program from June 2021 through October 2021. (Ex N 3)

The DOE had ample notice of serious Student challenges and the need for some type of support.

The DOE submission of successful completion of credits in light of the Student’s serious mental health issues does evidence any appropriate DOE action. (Ex 1)

A district's child find duty is triggered when the district has "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826 F. Supp. 2d at 660, quoting New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13). In this case the trigger is at least as far back as October of 2020. (Ex N 3)

UP Placement for the 2021-2022 School Year

Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 2021-2022 school year.

The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. I find that the documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent.

Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex B, D, G, H, I, J, M & N)

I find UP provides an appropriate education and program for the Student for the 2021-2022 school year.

UP provides special education services specifically tailored to meet the needs of the Student.

TUITION FUNDING 2021-2022 School Year

Parent is entitled to funding for the UP, 2021-2022, Tuition.

The DOE has denied a FAPE to the Student for the 2021-2022 school year.

UP Tuition is evidenced to be $27,350.00, for the Student’s period of 21-22 enrollment, of 01/28/2022 through 06/30/2022. (Ex E 1)

Parents obligate themselves to payment via signature upon the Contract. (Ex E 1)

UP Tuition is evidenced to have been paid in full. (Ex F 1)

In this matter the Parents choose to enroll the Student, at the UP, in part, due to the Student’s urgent need for an appropriate placement, and the lack of DOE action to address the Student’s special education needs.

I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to DOE funding of the UP tuition, for the 2021-2022 school year.

I find the Parent is entitled to direct UP funding as Ordered below.

TUTORING SERVICES

Parent seeks funding for Student Tutoring services. (Ex K)

These services were initiated in response to the Parent’s growing concerns regarding the Student’ emotional challenges and the impact of academics upon Student anxiety. (Ex N 1-3)

Parent engaged in Student tutoring services she believed were necessary given Student’s condition, in the wake of emotional deterioration. (Ex N 3)

The response also comes in light of the DOE failure to identify, locate, and evaluate the Student, who was reasonably suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made.

The tutoring services were not part of an array of services, which would have appropriately been implemented under an IEP, but were instead the Parent’s initiative of self help in light of urgent concerns, and no DOE action.

Service Invoices Total is $1,967.80. (Ex K 1-4)

Services took place from 02/01/2021 through December 2021. (Ex K)

Throughout the period of time the DOE should have already identified the Student as one with a potential disability, and thus in potential need of special education services.

I find it appropriate to order reimbursement of the Tutoring services, as these services are evidenced to have been part of reasonable and appropriate Parent action to address Student’s challenges and help prevent further deterioration of the Student’s mental health.

TRANSPORTATION

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). In addition, State law defines special education as "specially designed instruction... and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]).

Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 16035). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]).

Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

The Student’s needs, as detailed above, support the need for special education transportation, as Ordered below.

ORDER

  • • The Department of Education (DOE) failed to offer the Student a FAPE for the 2021-2022 school year.
  • • The DOE also failed to identify the Student as one with a potential Disability, back in October of 2020.
  • • The DOE shall reimburse Parent for Student, 2021-2022 Tuition, at the [REDACTED] (UP), in the amount of be $27,350.00.
  • • The DOE shall provide the Student with special education transportation, for the 2021-2022 school year, to and from the [REDACTED] (UP).
  • • The DOE shall reimburse Parent the amount of $1,967.80, the amount paid for Student Tutoring services.
  • • The DOE shall provide Parent with any documents or forms necessary to facilitate payment under this Order, within ten days of the date of this Order.
  • • 7. This decision is subject to appeal and review by the State Review Officer.

DATED: July 23, 2022

DANIEL AJELLO

DANIEL AJELLO

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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