New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 572821 - NYC: 226268

FINDINGS OF FACT AND DECISION

Case Number: 226268

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 07/11/2022

08/08/2022

Actual Record Close Date: 08/13/2022

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 07/11/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], Advocate

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

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/08/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], Advocate

[REDACTED], Parent

[REDACTED], Clinical and School Social Worker,

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

DOCUMENTS ENTERED INTO THE RECORD

PARENT DOCUMENTS

Exhibit

Date

Document Description

Page(s) - Entered

A 05/06/22 Impartial Hearing Request / Due Process Complaint (DPC) 4 - 07/11/2022

B 09/02/14 Findings of Fact and Decision 20 - 08/08/2022

C 06/18/20 Ten Day Notice 2 - 08/08/2022

D 20/21 Class Schedule 1 - 08/08/2022

E 20/21 Progress Report 6 - 08/08/2022

F 20/21 School Individualized Education Plan / IEP 24 - 08/08/2022

G 08/21/20 Enrollment Contract 2 - 08/08/2022

H 07/08/22 School Affidavit 1 - 08/08/2022

I

2021

Parent 1040 U.S. Individual Income Tax Return

2 - 08/08/2022

J 2020-2021 Program Description 5 - 08/08/2022

K 20/21 Attendance Record 10 - 08/08/2022 HEARING OFFICER DOCUMENTS Entered 07/11/2022

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

DEPARTMENT OF EDUCATION

None

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 07/11/2022, 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.

Parent entered into evidence a Findings of Fact and Decision, of 09/02/2014. (Ex B)

The DOE objected to the Document, discussions were held on the Record, and the IHO ultimately admitted the Document into the Record.

Parent supported the relevance of the Document stating that the Decision has been utilized since its issuance as the basis of Student Pendency. (T 25-27)

The DOE also objected to Exhibit F, the schools’ IEP, as self serving document. (T 27)

The IHO saw no basis to exclude the document and found it relevant to the matter at hand, and it was admitted into the Record. (T 27-30, Ex B)

Due Process Complaint (DPC) alleges a failure of the DOE to offer the Student a Free Appropriate Public Education (FAPE) for the 2020-2021 school year. (Ex A 1)

Parent seeks relief to remedy the alleged failure, including, funding for unilateral placement (UP), at the School for Students with Hidden Intelligence (UP), for the 20-21 school year. (Ex A)

THE POSITION OF EACH PARTY

Parent entered into evidence a Findings of Fact and Decision, of 09/02/2014. (Ex B)

The DOE objected to the Document, discussions were held on the Record, and the IHO ultimately admitted the Document into the Record.

Parent supported the relevance of the Document stating that the Decision has been utilized since its issuance as the basis of Student Pendency. (T 25-27)

The DOE also objected to Exhibit F, the schools’ IEP, as self serving document. (T 27)

The IHO saw no basis to exclude the document and found it relevant to the matter at hand, and it was admitted into the Record. (T 27-30, Ex B)

At Hearing, of 07/11/2022, the DOE advised the IHO it would not be defending “Prong I”, that an offer of FAPE was made to the Student, for the 20-21 school year. (T 4)

The DOE argues that the Parent has not evidenced that the UP provides specific instructions or techniques for the Student. (T 68) This will be considered as the evidence is reviewed.

The DOE argues the Tuition charged by the UP is excessive. (T 68-69)

The DOE does not offer any evidence to support this argument.

Parent Attorney set forth the basic Parent position, via DPC, and presented the Parent’s case, at Hearing of08/08/2022. (Ex A)

Parent presented two Witnesses, whose Testimony is found credible, and supportive of the Parent’s case. Testimony is reviewed and considered below:

[REDACTED], Clinical and School Social Worker, UP

Witness provided Testimony that included:

• • A review of her qualifications (T 36);
• • The UP is a [REDACTED] State approved school for the disabled (T 37);
• • UP students include: “All different types of disabilities. We have children with intellectual disabilities. We have children with specific, specific intellectual disabilities. We have children with medical disabilities. But generally above preschool, all the children in our school have some form of intellectual disability, ranging from mild to severe.” (T 37);
• • The school does not have a religious component (T 38 & 48-49);
• • For the 20-22 school year the Student received related services of: Occupational therapy (OT), physical therapy (PT), and speech language therapy (SLT) (T 38);
• • Student attended the UP for the 20-21 school year (T 39);
• • Regarding UP class: ‘There's generally, in a class of eight, a special ed teacher, a co-teacher, who is also who is also a generally certified, you know, special ed teacher… there are paraprofessionals. Depending on if there's other students in class that are mandated for one-to-one, that will determine the number of paraprofessionals that are in classroom.” (T 40);
• • The school prepares IEPs for the students (T 40 & 48);
• • Regarding Student: I did not work with him directly, but I did work with his class. I supervise the whole social work department, as well. So I am involved with the teachers, the therapists, the classroom. I observe classrooms. I interact with students in the classroom.” (T 41);
• • Witness is familiar with Documents entered into Evidence, specifically Ex D, E & F, and states they are accurate (T 43); and
• • Regarding Ex F 23, the boxes relating to certain supports are unchecked, in error, though information regarding supports can be found elsewhere in the document. (T 44-45)

.

[REDACTED], Parent

Student’s mother provided Testimony that included:

• • Student attended the UP, for the 20-21 school year (T 56);
• • The UP was appropriate, for the Student: “It meets his educational needs. And therefore, you know, it's an effective way for him to learn.” (T 57);
• • Witness describes the Student’s special education needs: “His -- he's a slow learner, you know. He is intellectually impaired. So he needs to be taught things in a very direct manner…He also needs that -- the environment, like, if there's peers, which there always are, then that should not be distracting to him. So it's always a good idea to teach him important materials from, like, coming from one teacher or one para. So that's -- you know, he does require a nice amount of staffing, you know, as compared to how many students there are.” (T 57);
• • Witness signed a Contract, with the UP, for 20-21 Tuition, in the amount of $120,000.00 (T 57-58);
• • Witness has not made any Tuition payments (T 62);
• • Witness is in debt to the school (T 58);
• • Student has been attending the UP since 2011 (T 58);
• • Attended the Student’s 2020 IEP meeting (T 61); and
• • Witness believes an IEP was developed, but she never received a copy (T 60-61);
• • If an IEP and appropriate placement were offered by the DOE, the Witness would “consider any placement they gave me” (T 64).

Documentary evidence is found to be credible and supportive of the Parent’s case, as considered below:

A Impartial hearing request, due process complaint, 5/6/22, four pages

Parent detailed allegations and sought after relief.

• • Parent alleges that for the 2020-2021 school year DOE developed an IEP, for the Student, that recommended a Special Class D. 75 with a 12:1:1 student to staff ratio.
• • Parent was not in agreement with this IEP and/or the program recommendation;
• • The IEP meeting denied Student FAPE, containing several substantive and procedural deficiencies.
• • Large sections of this IEP were not created and/or drafted during this meeting
• • The IEP does not include 1:1 instruction
• • The ignored many of the recommendations made by Parent and Student’s present special education providers
• • The DOE representative made unilateral decisions for example denying the parent’s request for 1:1 service based on alleged DOE policy and practices
• • The DOE did not make decisions based on Student’s needs
• • The individuals on this team who made decisions concerning Student’s IEP were not knowledgeable concerning the DOE’s continuum of services and its ability and responsibility to provide individual programming
• • The DOE failed to offer positive behavior supports in this IEP
• • The IEP’s related service recommendations for SLT, OT and PT are insufficient to meet Student’s needs

Parent seeks relief that includes:

• • The DOE failed to provide [STUDENT] with a FAPE for the 2020-2021 school year;
• • REDACTED as an appropriate placement for

Student for the 2020-2021 school year;

• • The Parent fully cooperated with the CSE and did nothing to prevent the CSE from providing Student with a FAPE for the year in question; and
• • .The Parent should be reimbursed her out-of-pocket tuition expenses incurred for Student’s placement at UP, for the 2020-2021 SY, and/or the DOE should directly pay UP for all tuition expenses incurred for Student’s placement for the 2020-2021 school year.

(Ex A 3-4)

B Findings of fact and decision, 9/2/14, 20 pages

Evidence provided that as the basis of Student’s continued Pendency, at the UP, since the Decision was rendered, back on 09/02/2014.

C Ten-day notice, 6/18/20, two pages

Parent provides Notice to the DOE of the allegation that the DOE failed to offer the Student a FAPE, for the 20-21 school year; the Parent’s intent to continue the UP for the Student; and intent to seek District Funding.

D '20/'21 class schedule, one page

Student academic and Related Service schedule, for the 20-21 school year.

E '20/'21 progress report, six pages

Student Progress Report details instructional objectives in areas that include:

• • Language Art Literacy (Ex E 2);
• • Mathematics (Ex E 3)
• • Science;
• • Social Studies
• • Social Communication (Ex E 4);
• • Occupational Therapy;
• • Physical Therapy (Ex E 5);
• • Speech and Language; and
• • Pre-Vocational Skills (Ex E 6)

F '20/'21 school IEP, 20 pages

UP IEP details areas of Student special education need:

• • deficits in the areas of cognition, language, social emotional development, and motor planning. [STUDENT] requires individualized instruction and classroom support to acquire new skills;
• • [STUDENT] has a hard time remaining seated and focused during group lessons
• • limited abstract ideas and thoughts and has difficulty generalizing the information being taught to him. Problem solving, executive function, ideation, sequencing and motor planning are much more difficult for [STUDENT] and where his real challenges lie.

(Ex F 2)

UP IEP sets forth Classroom Modifications benefiting the Student:

• • a variety of classroom modifications to help him access the learning curriculum. He requires a quiet environment to learn and master skills as he can get easily distracted by people and noise around him. [STUDENT] works in a corner of the classroom with his back facing the room. This ensures that he can stay focused on his work. [STUDENT] has a hard time remaining seated and focused during group lessons. He benefits from playing with fidget toys or sensory materials while in the group. Currently, [STUDENT] has a container of putty and beads in his desk which he uses when needed. At times, [STUDENT] gets distracted and engrossed in his fidget, and it then needs to be removed;
• • playing with fidget toys or sensory materials while in the group. Currently, [STUDENT] has a container of putty and beads in his desk which he uses when needed. At times, [STUDENT] gets distracted and engrossed in his fidget, and it then needs to be removed.
• • specific directions, as well as cuing from a teacher to complete multi-step tasks. He will complete tasks inaccurately unless staff supports him by breaking each task down into small steps. It is even more challenging in a group setting, as he will get distracted while working. (Ex F 2);
• • requires individualized instruction and classroom support to acquire new skills. (Ex F 4) The UP IEP continues to detail specific areas of challenge, supports, and progress in areas that include:
• • Language Arts Literacy (Ex F 2-3)
• • Mathematics
• • Science
• • Social Studies
• • Prevocational Skills (Ex F 3)
• • Social Emotional Behavior (Ex F 4)
• • Speech and Language, Expressive and Receptive Language (Ex F 5-6)
• • Critical Thinking Cognition (Ex F 6)
• • Pragmatic Language. Social Skills (Ex F 7)
• • Occupational Therapy
• • Sensory Processing
• • Fine Motor/Visual Motor/Visual Perception (Ex F 8)
• • Activities of Daily Living (Ex F 8-9)
• • Physical Therapy (Ex F 10-13)

Goals are set forth in areas of:

• • Language Art Literacy (Ex F 14);
• • Mathematics
• • Science
• • Social Studies (Ex F 15)
• • Social Communication
• • Prevocational Skills (Ex F 16)
• • Speech and Language (F 17)
• • Occupational Therapy (Ex F 18)
• • Physical Therapy (Ex F 19)

Student Related Services include:

• • SLT – Individual: 2, 25 minute sessions weekly
• • OT – Consult: 1, 25 minute session weekly
• • PT – Consult: 1, 25 minute session weekly
• • SLT – Group: 1, 25 minute session weekly

(Ex F 20)

G Enrollment contract, 8/21/20, two pages

Student Tuition for the 2020-2021 school year is $120,000. (Ex G 1)

Parent obligate themselves to payment of the Tuition via signature upon the Contract. (Ex G 2)

H School affidavit, 7/8/22, one page

Student Tuition has not been paid, and present balance remains at $120,000.00.

I 2021 parent 1040 tax return information, two pages

Parent income is evidenced to be $25,100.00 for the 2021 calendar year.

J '20/'21 program description, five pages

Information from the UP Website details various general characteristics of their Program:

• • a state-approved organization, specifically educating multiply handicapped & underprivileged children & adults from throughout the Tristate region & beyond, [UP]’s aim is to try and alleviate the suffering of the most vulnerable members of the community;
• • provides educational and therapeutic services by certified professional staff to children with disabilities as varied as autism, Down syndrome, ADHD, muscular dystrophy, Spina bifida, and cerebral palsy, among others. [UP] places great emphasis on maintaining a high teacher to pupil ratio (minimum of 1:2) along with individualized educational programs, designed to fit each student’s specific needs;
• • unique curriculum gives special children the opportunity to benefit from a wide range of subjects including vocational training & financial literacy, art, music, computers, as well as math, language arts and science courses;
• • Regular classroom faculty are augmented and complemented by specialists in various occupations: physical, occupational and speech therapy, behavior modification and social work. Included in [UP]’s additional services are: early intervention, adult programs, and group home services. Our main goal is to provide every student with a chance to excel (Ex J 1);
• • Our philosophy is to provide support to parents, teachers and students. Our staff has developed programs that are unique to this school and the special children and the families that make up this community;
• • The goal of the program is to enhance the educational experience through multifaceted, interrelated education. This program includes: parenting workshops;individual, family and/or group counseling; and intensive wrap around services for the teaching staff;
• • We provide parenting workshops specifically designed for parents of children with special needs which include discipline strategies, positive reinforcement program and communication skills with continuous parent support groups;
• • [UP] has an on-going staff development program which provides information, workshops and support to the teachers on a weekly basis, presenting the most up-to-date information on specific disabilities and intervention programs. This affords the teachers a forum to share their concerns, offers constructive input and closely follow the progress of the students;
• • The unique school for children with developmental disabilities offers a multidisciplinary approach to understanding and strengthening the overall quality of education for the children and families of [UP]; and
• • [UP] is a school where children can learn at their own pace. Their natural style of learning is supported and nurtured and the home-like environment is conducive to educational and emotional growth. Each child is assigned a team of highly skilled professionals who with their expertise and experience, create optimum learning opportunities. (Ex J 2) The UP Academic Program includes:
• • Applied Behavior Analysis (ABA) approach, a one-on-one discrete trial teaching method, is used along with Sensory Integration Techniques (Ex J 4);
• • Future mainstreaming opportunities, job placement and independent living
• • Learning concepts transformed into practical attainment of basic skills and achievements;
• • Self sufficiency and life skills development are achieved through guided shopping experiences;
• • Self care skills and independence are acquired through classroom activities; and
• • Social development and interaction Is encouraged through extracurricular group activities, instructional peer play and periodic recreational experiences. (Ex J 5)

K '20/'21 attendance record, ten pages

Student is evidenced to have attended the UP, for the 20-21 school year.

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 2020-2021 School Year

DOE opted not to present a defense to the Parent’s allegations.

The DOE has evidenced neither the development of an appropriate IEP, nor placement, for the commencement of the 20-21 school year.

Parent Testifies she attended a 2020 IEP meeting, but has never received a copy of an IEP. (T 60-61)

DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 20-21 school year.

I find the DOE failed to offer the Student a FAPE for the 20-21 school year.

UP Placement for the 20-21 School Year

Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 20-21 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 E, F, J & T 37, 39 & 57)

I find UP provides an appropriate education and program for the Student for the 20-21 school year.

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

TUITION FUNDING 20-21 School Year

Parent is entitled to funding for the UP, 20-21, Tuition.

The DOE has denied a FAPE to the Student for the 20-21 school year.

Student attended the UP, for the 20-21 school year. (Ex K, T 56)

Witness signed a Contract, with the UP, for 20-21 Tuition, in the amount of $120,000.00. (T 57-58, Ex G)

Witness has not made any Tuition payments (T 62), and remains in debt to the school. (T 58, Ex K)

Parent Testifies that if an IEP and appropriate placement were offered by the DOE, the Witness would “consider any placement they gave me.” (T 64)

Parent provides appropriate Notice to the DOE of the allegation that the DOE failed to offer the Student a FAPE, for the 20-21 school year; the Parent’s intent to continue the UP for the Student; and intent to seek District Funding. (Ex C)

Student Tuition for the 2020-2021 school year is $120,000. (Ex G 1)

Parent obligate themselves to payment of the Tuition via signature upon the Contract. (Ex G 2)

Student Tuition has not been paid, and present balance remains at $120,000.00. (Ex H)

With regard to fashioning equitable relief, one court has addressed whether it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so (Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). The court held that "[w]here... parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769 F. Supp. 2d at 428). The Mr. and Mrs. A. Court relied in part on dicta from earlier cases in which similar claims seeking direct retroactive payment to a private non-approved school were asserted (see Connors v. Mills, 34 F. Supp. 2d 795, 805-06 [N.D.N.Y. 1998] [opining that such financial disputes should be resolved within the administrative hearing process]; see also S.W., 646 F. Supp. 2d at 358-60). The Mr. and Mrs. A. Court held that in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs (Mr. and Mrs. A., 769 F. Supp.2d at 430).

In this matter the Parents choose to continue Student placement at UP, without any DOE alternative.

Parent provides information relative to their financial capability, in the form of 2021 Tax Return, which reflects income of $25,100.00 for the 2021 calendar year. (Ex I)

Parent needs to meet the burden of production and persuasion with respect to whether they have the financial resources to "front" the costs of a unilateral placement and whether they are legally obligated for the student's tuition payments (Application of the Dep't of Educ., 12- 132; Application of a Student with a Disability, 12-036; Application of a Student with a Disability, 12-004; Application of the Dep't of Educ., 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041).

I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to direct DOE funding of the UP tuition, for the 20-21 school year.

I find Parent evidences limited income and an inability to fund the UP Tuition directly.

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

ORDER

• • The Department of Education (DOE) failed to offer the Student a FAPE for the 2020-2021 school year.
• • REDACTED served as an appropriate placement, for the Student, for the 2020-2021 school year.
• • The DOE shall directly fund Student, 12 month, 20-21 Tuition at REDACTED (UP) in the amount of $120,000.00.
• • 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.
• • 5. This decision is subject to appeal and review by the State Review Officer.

DATED: August 13, 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.