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Special Education Law
DECISIONDistrict PrevailedIHO Case No. 226614

New York City Department of Education, Impartial Hearing Decision

December 20, 2022·Rachel Gibbons·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: 573355 - NYC: 226614

FINDINGS OF FACT AND DECISION

Case Number: 226614

Student’s Name[1]: REDACTED

(hereinafter known as “Student”)

Date of Birth: REDACTED

School District: REDACTED

Hearing Requested by: REDACTED

(hereinafter known as “Parent”)

Request Date/Date Complaint Filed: 05/24/2022

Date(s) of Hearing: 08/09/2022

09/23/2022

10/06/2022

11/09/2022

Actual Record Closed Date: December 19, 2022

Date of Decision: December 20, 2022

Hearing Officer: Rachel Gibbons, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 9, 2022

For the Student:

REDACTED Law Clerk

REDACTED Director of Child Care Center

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 23, 2022

For the Student:

REDACTED Attorney

Parent Parent

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 6, 2022

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 9, 2022

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED District Representative

REDACTED Administrator, Committee on Preschool Special Education

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed against the New York City Department of Education (“DOE” or “District”) on or about May 24, 2022. (Par. Ex. A)[2]. The DPC alleged that the District failed to provide the Student with a free appropriate public education (“FAPE”) for the first five months of the 2021-2022. school year. At hearing the District asserted that it provided a FAPE for the period in question.

This IHO was appointed on June 29, 2022. A prehearing conference was held on July 12, 2022 and a closed hearing was held on the following dates: August 9, 2022; September 23, 2022; October 6, 2022; and November 9, 2022. Several hearing dates were necessary due to witness availability. The Parent was represented by REDACTED of the REDACTED. The District was represented by REDACTED, a consultant district representative. The Parent entered nine exhibits into evidence. (See Exhibits A through I).[3] The Parent presented two witnesses, the Parent and REDACTED, the director (“Director”) of the REDACTED (“NPS”). The District entered seven exhibits into evidence. (See Exhibits 1 through 7). The DOE presented one witness, REDACTED, the administrator (“Administrator”) of the Committee on Preschool Education (“CPSE”) who attended the Student’s IEP meeting. The date of compliance was extended several times due to witness availability, late receipt of the final transcript, and to allow for post-hearing briefs. The post-hearing briefs were due on December 13, however, neither party sent them. The final date of compliance is December 20, 2022. The record was closed on December 19, 2022.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

The Student has just turned REDACTED years old. (P-Ex. A). During the period at issue, September 2021 through January 2022, the Student was three years old and attended preschool. Id. An Individualized Education Program (“IEP”) was developed pursuant a CPSE meeting held on October 20, 2020. (P-Ex. B). The Student was classified as a “preschool student with a disability.” (P-Ex. B p. 3). The IEP, which had an implementation date of November 2, 2020 and a projected date of annual review of November 2021, recommended the related service of occupational therapy (“OT”), individual service, twice weekly for 30-minute periods for the ten-month school year. (P-Ex. B pp. 3, 10). In September 2021 the Parent unilaterally placed the Student in a special education class at the NPS. On or about October 12, 2021, she sent a ten-day notice to the District requesting both an updated IEP and a new educational placement while notifying the District of her intention to place the Student in a special education program. (P-Ex. H). The DPC for the instant action was filed on May 24, 2022. (P-Ex. A).

ISSUES

The Parent alleges that the District failed to provide the Student with an appropriate program and school placement for the first five months of the 2021-2022 school year.[4] The Parent asks for relief consisting of the direct payment of five months of tuition for the special education program at the NPS and for such other and further relief as is appropriate. (Par-Ex. A-2). The District asserts that the October 2020 IEP was appropriate, the unilaterally selected program was not adequate and the equities favor the District, as the Parent failed to send a timely ten-day notice and the tuition for the program was costly. (Tr. 26).

FINDINGS OF FACT

  • • The Student’s October 2020 IEP was developed pursuant to multidisciplinary evaluations administered by REDACTED (“Agency”). (D-Ex. 3; P-Ex. I). The Parent consented to the testing on September 1, 2020 and by September 24, 2020, the five evaluations were complete with reports mailed out to the Parent. (D-Ex. pp. 1-3, P-Ex. I). The Agency administered five detailed evaluations, comprised of 44 pages, including a social history review and psychological, educational, occupational therapy and speech-language therapy assessments. (D-Ex. 3, P-Ex. I). The Student scores placed him in the average range for all evaluations except OT, where deficits were noted. (D-Ex. 3 pp. 31-32; P-Ex. I).
  • • The Parent’s concerns were reflected in the IEP. These concerns included the Student’s recent stuttering; behavior characterized as “hyper” or “wild;” difficulty transitioning; nail biting; delayed fine-motor and visual-motor skills; tantrumming when he was tired and biting other children at daycare “a few times.” (P-Ex. 2 pp. 3-5). The speech evaluator noted the Student had age-appropriate speech and communication but cautioned that if speech processes did not continue to develop as normally or disfluencies return, a re-evaluation “may be necessary.” (P-Ex. B p. 4).
  • • The IEP recommended OT twice weekly and contained three annual goals pertaining to fine-motor skills, visual-motor coordination and sensory processing. (P-Ex. B pp. 7-8, 10). The District forwarded a “final notice of recommendation” letter that indicated the Student was to receive the related service of OT twice weekly. (D-Ex. 1-1). The letter stated, “If you agree with the CPSE recommendation and wish to have these services provided to your child, please sign at the bottom of the form and return it to the Committee on Preschool Special Education immediately.” (Id.; see also D-Ex. 2 pp. 7-13). The letter also stated “The law provides you with certain rights, including procedural safeguards, in connection with this recommendation. The New York State Procedural Safeguards Notice is attached.” (D-Ex. 1). The Parent signed, dated and returned the letter to the District. Id. At hearing the Parent testified that she had read and signed the document. (Tr. 144).
  • • The DPC, dated May 24, 2022, asserts that the Parent did not agree with the IEP developed by the District on October 20, 2020. (P-Ex. 1).
  • • At hearing the Parent stated that she had not received a procedural safeguards notice within one year prior to October 2021. (Tr. 134). The Parent testified that although she signed the Final Notice of Recommendation letter, no “book” or notice was attached. (Tr. 144).
  • • During the 2020-2021 school year the Student attended a general education classroom at the NPS, consisting of two teachers and 18 children. (Tr. 76). The Parent testified he had a “very difficult time without services.” (Tr. 158). He had behavioral issues including biting and “hurting other children.” Id. The Student was able to remain in the general education classroom the entire 2020-2021 school year. (Tr. 157-158).
  • • The Parent testified that the Student never received the OT services that were recommended in the October 2020 IEP. (Tr. 146, 151).
  • • The Parent reached out to the District for the services the Student was “allowed at the time.” (Tr. 146). She spoke on a conference call with the Agency which had evaluated the Student and the District and asked for the services. (Tr. 146-149). The Parent stated that the Agency was the contracted provider for the OT services. (Tr. 159). Neither the District nor the Agency had providers available. (Tr. 149, 158, 161). The Parent testified that the Director advised her to “keep following up” with the District. (Tr. 159). According to the Parent, the Director had no suggestion for additional support for the Student. (Tr. 161).
  • • The Director explained that the general education classrooms at the NPS had no special education support. (Tr. 76-77). There were no individualized plans nor curriculum for two-year-olds in the general education classrooms. Id. DOE contracted agencies would send service providers into the two/turning-three classrooms. (Tr. 76). “Any oversight, any responsibility” for the outside providers belonged to “CPSE administrators.” (Tr. 76). “It’s the School District[‘s] responsibility to implement the School District program while [the Student] was not in my special education program.” (Tr. 73).
  • • By the end of the 2020-2021 school year the Parent stated “it kind of all came to a head at the end of the year, and we really realized that [the Student] needed the help very soon.” (Tr. 161). The Parent decided to enroll the Student in the special education classroom at the NPS “sometime at the end of the summer.” (Tr. 162). The Parent testified that she placed the Student in the special education classroom at the NPS because he was having language and behavioral issues. (Tr. 153-154). The Director indicated that by the end of the 2020-2021 school year the Student required a full-time special education classroom due to his behaviors. (Tr. 43). She explained that behavioral expectations for a two-year-old in the classroom are very different than those for a three-year-old. (Tr. 77).
  • • On August 17, 2021 the Parent signed a contract with the NPS to place the Student in one of the special education classrooms in the NPS for the first five months of the 2021-2022 school year, from September 2021 through the end of January 2022, for the sum of $12,000.00 per month, or $60,000.00 total. (P-Ex. C). The family relocated to another school district at the end of January 2022 and the Student left the NPS. (Tr. 46, 136). The Parent acknowledged that if she did not prevail at the impartial hearing she would be responsible for payment of the tuition. (Tr. 145). On October 12, 2021 the Parent sent a ten-day notice requesting a new IEP, program and placement to the District. (P-Ex. H).
  • • From September 2021 through January 2022 the Student attended the self-contained classroom with 11 children total and one teacher and two assistants. (Tr. 32-33). All of the students in the class had disabilities. The NPS had two special education classrooms and they both “align” with an Applied Behavioral Analysis (“ABA”) based approach to support students in the areas of language and behavior. (Tr. 31, 55). The NPS special education classrooms utilize a program called “Rethink Behavior.” (Tr. 103). The Student had many opportunities to participate in activities with general education peers, during mealtime or the social skills program. (Tr. 31). The NPS has two full-time BCBAs, two occupational therapists, two licensed speech-language therapists, and a part-time physical therapist (Tr. 83, 106-107). The Student received OT from the NPS from September 2021 through January 2022. (P-Ex. D p. 2; P-Ex. E). A functional behavioral analysis (“FBA”) was performed, a Behavioral Intervention Plan was put into place and an individualized “Treatment Plan” was developed. (P-Ex. G pp. 1-23).
  • • The Director of the NPS testified that when the Student began the 2021-2022 school year, he had had sensory seeking behavior; was self-directed; had a poor ability to focus; was constantly moving; had difficulty transitioning; would touch, grab, hit or push others; would tantrum; and had a difficult time doing any group activities. (Tr. 33-34). She added that his academic readiness skills were “very challenged” by his behaviors, and he had significant communication, fine-motor and visual-motor delays. (37-42). The Student had an individualized plan for their education and services. (Tr. 50, 63-65).
  • • The Director testified that the Student made definite progress. (Tr. 46). He showed a consistent decrease in challenging behaviors, an increase in attention and focus, and a greater ability to participate in activities. Id. A progress report reflects limited progress. (P-Ex. G pp. 24-27). The Parent testified that the Student made progress. (Tr. 162-163). His behavioral issues decreased, he was more social and communicative, less aggressive to his classmates and less fidgety. (Tr. 162-163).
  • • The Director testified that the October IEP was not appropriate as it would not have allowed the Student to make meaningful progress due to the Student’s “intense behavioral component.” (Tr. 41-42). She also noted that the IEP lacked extended 12-month school year to address his “intense delays.” (Tr. 43).
  • • The CPSE Administrator testified that the evaluations administered in September 2020 reflected that “this was a child of average abilities who demonstrated some sensory motor delays at that given time.” (Tr. 188). His evaluation scores were average, with the exception of the OT testing. (Tr. 189). The Administrator noted that at the time the NPS did not permit [outside] therapists in the building. (Tr. 190). She told the Parent that if the NPS did not let the therapist in that she could schedule OT with a clinic that was contracted through the DOE. Id. She testified that the Parent did not make the child “available for therapy.” (Tr. 199). The Administrator informed the Parent that she had due process rights and could write for an impartial hearing, or if she provided the CPSE with more documentation that the Administrator would be “willing to look at it and have another meeting with her.” (Tr. 106). The Administrator could not recommend to the Student any kind of special education program or service, with the exception of OT, because he “came in as” average and he was a “very bright child.” (Tr. 210-211). No one requested a Functional Behavioral Assessment. (Tr. 211).
  • • The Parent has not paid any tuition to the NPS for the 2021-2022 school year. (P-Ex. D). The Parent testified that she earned approximately $REDACTED and received Medicaid benefits during the 2021-2022 school year. (Tr. 143). This IHO requested documentary evidence to IHO requested documentary evidence of the Parent’s inability to pay for the NPS tuition, such as a tax return with personal information such as social security number and siblings’ names redacted. (Tr. 163-165).

CONCLUSIONS OF LAW

IDEA and FAPE The IDEA (20 U.S.C. §§1400-1482) was enacted primarily (1) to ensure that students with disabilities have available to them a free appropriate public education which is designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to protect the rights of students with disabilities and the parents of such students. (20 U.S.C. § 1400(d)(1)(A)-(B); see generally, Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. v. Rowley, 458 U.S. 176, 206-207 (1982)). A FAPE consists of special education and related services designed to meet a student’s unique needs which are provided in conformity with a written individualized education program. (See 20 U.S.C. § 1401(9)). 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 or the IEP is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” (See Rowley, at 192).

The Supreme Court recently clarified the substantive standard for determining whether a child’s IEP offered a FAPE. The Court held that “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” (Endrew F. ex rel. Student F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 1001 (2017)). The Court emphasized the text of the IDEA itself and stated:

A focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” though an “[i]ndividualized education program” §§1401(29), (14) (emphasis added). An IEP is not a form document. It is constructed only after careful consideration of the child’s present level of achievement, disability and potential for growth. (Endrew F. at 999).

The Court continued “[A child’s] IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” (Endrew F. at 1000).

An appropriate IEP must include: (a) a statement of the child’s present level of academic achievement and functional performance and how the child’s disability affects the child’s involvement and progress in the general education curriculum; (b) a statement of measurable annual academic and functional goals; (c) how a child’s progress towards those goals will be measured; (d) a statement of the special education and related services to be provided to the child; (e) an explanation of the extent to which the child will participate with nondisabled students in school; and (f) the projected date for the start of services and the duration. (34 CFR § 300.320(a); 8 NYCRR 200.4(d)(2)). An IEP must be developed collaboratively, by a team that includes the child’s parents, specific teachers, a school district representative and someone who can interpret evaluations. (34 CFR § 300.321, Educ. Law §4402(a)). The “core of the statute... is the cooperative process that [IDEA] establishes between parents and schools.” (Schaffer v. Weast, 546 U.S. 49, 53 (2005)). The Second Circuit has stated that a district “must produce, in writing, an [IEP] that ‘describes the specially designed instruction and services that will enable the child to meet’ stated educational objectives and is reasonably calculated to give educational benefits to the child.” (M.W. ex rel S.W. v. NYC Dept. of Educ., 775 F.3d 131, 135 (2d Cir. 2013) (Quoting R.E. v. NYC Dept. of Ed., 694 F.3d 167 (2d Cir. 2012)).

“The importance Congress attached to the procedural safeguards [in IDEA] cannot be gainsaid.” (See R.E. at 189-190). A procedural violation of the IDEA entitles a parent to relief only if it: “(I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” (20 U.S.C. § 1415(f)(3)(E)(ii); see P. v. West Hartford Bd of Educ., 885 F.3d 735, 748-749 (2d Cir. 2018); citing A.M. v. N.Y. City Dep't of Educ., 845 F.3d 523, 535 (2d Cir. 2017). “Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” (See R.E., 694 F.3d at 190.

It is important to note that school districts are not required to "maximize" the potential of students with disabilities. (Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003)). The IDEA 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)). In addition, a child with a disability is entitled to a FAPE in the least restrictive environment (“LRE”). (20 U.S.C. §1401(9) and 34 CFR §300.17. See Mr. and Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 114 (2d Cir. 2008); Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 (2d Cir. 1998)). Children with disabilities must be educated with children who do not have disabilities to the maximum appropriate extent. The LRE mandate requires the determination of “whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child, and, if not, then whether the school has mainstreamed the child to the maximum extent possible.” (Mr. and Mrs. P. at 114).

Burden of Proof The District bears the burden of proof during an impartial hearing, except in a tuition reimbursement case, where the Petitioner bears the burden of proof regarding the appropriateness of a unilateral placement. (Educ. Law §4404(c)(1)). The burden of proof in this matter shall be met upon a fair preponderance of the evidence, which requires that the trier of fact find that the existence of a fact is more probable than its nonexistence.[5] If the evidence is evenly balanced, the party with the burden of persuasion must lose. [6]

Tuition Reimbursement In Burlington School Comm v. Dept of Education, 471 U.S. 359 (1985), the Court determined that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. In cases where the relief sought is tuition reimbursement, the applicable three-prong analysis is contained in Burlington and its progeny. (See Florence County School Dist. Four v. Carter, 510 U.S. 7 (1993)). When applying a Burlington/Carter analysis it is necessary to determine if (1) the school district failed to offer and/or provide a FAPE to the Student; (2) the services selected by the Parents were appropriate; and (3) the equitable considerations support the parents’ claim.

The first part of the Burlington/Carter analysis considers whether the District has demonstrated that it provided a FAPE. The second prong of Burlington/Carter shifts the burden of proof and persuasion to the Parent, who must demonstrate that their unilateral placement of the Student is appropriate. (Educ. Law. 4404(1)(c)). The private placement selected by the parent does not have to be an approved special education school, (See Carter, 510 US 7 (1993)), nor does it have to meet the strict requirements of a special education placement by a public school district. However, a private placement must be tailored to meet the student’s individual needs. “A unilateral private placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child.” (Gagliardo v. Arlington Central School District, 489 F3d 105 (2d Cir. 2007); Frank G. v. Board of Education, 459 F3d 356, 365 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 188-89).

The final part of the Burlington/Carter analysis determines whether equitable considerations support the award of tuition reimbursement. The IDEA permits a court to limit or deny reimbursement if the parents fail to provide notice of the student's private school enrollment in a timely manner, fail to make the student available for an evaluation, or act unreasonably in the course of the IEP's development. (See 34 CFR 300.148(d)); E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 461 (2d Cir. 2014). In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560 (S.D.N.Y. November 20, 2007); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656 (S.D.N.Y. 2005); see also S.W. v. New York City Dept of Educ., 646 F. Supp. 2d 346, 361-63 (S.D.N.Y. 2009). Excessive tuition or frequency of services may underpin a reduction in public reimbursement or payment for unilaterally obtained special education. (E.M. at 461).

Direct Payment of Tuition The Parent has requested a remedy of retroactive direct payment in this matter. The Second Circuit has held that an IHO, SRO or court may order a school district to directly pay retroactive tuition when the parent has signed a contract and is legally obligated to pay the private tuition but is unable to do so due to lack of financial resources. (E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 (2d Cir. 2014); See also Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011)). [7] E.M. v. Dep’t Educ. states “Indeed, where the equities call for it, direct payment fits comfortably within the Burlington-Carter framework.” (758 F. Supp. 2d at 453).

ANALYSIS

Prong I - The District’s Provision of FAPE The threshold issue in this case is whether or not the District provided or offered a FAPE for this student during for the 2021-2022 school year. The District had the Student evaluated in a timely and appropriate manner. (See Findings ¶ 1)[8]. The IEP meeting was appropriately constituted. (P-Ex. B). The IEP itself satisfies the requirements set forth by federal and NYS law.[9] The Parent participated in the IEP process. (Findings ¶ 2; P-Ex. B). The Parent agreed to the recommendations and authorized the provision of the related service of OT. (Findings ¶ 3). The IEP was “reasonably calculated to enable [the Student] to make progress in light of [his] circumstances.” [10] The IEP was to be in effect for a year-long period from November 2, 2020 to November 2021 that straddled the end of the 2020-2021 school year and the beginning of the 2021-2022 school year. (P-Ex. B p. 3). Although the Parent’s evidence reflects that the Student had difficulties during the 2020-2021 school year which “came to a head” at the end of the year, the Parent did not inform the District. (Findings ¶ 6, 10). The IEP was appropriately and prospectively developed for the Student, who at its inception was a two-year and nine-months-old child. (P-Ex. B). The District offered the Student a FAPE for the start of the 2021-2022 school year. [11] The Parent has failed to establish Prong I of the Burlington/Carter analysis.[12]

Prong II - Appropriateness of the Unilateral Placement The Parent provided the Administrator’s testimony along with a number of documents to support her assertion that the program and placement at the NPS were appropriate. The Student’s special education classroom had a low student-to-teacher ratio, utilized a rigorous ABA-aligned framework, and provided individualized behavioral reinforcements along with various related services. (Findings ¶ 12). The Student had numerous challenges at the start of the 2021-2022 school year. (Findings ¶ 13). The Student made progress. (Findings ¶ 14). The Parent’s description of the Student’s then-present levels of performance, behavioral challenges and his progress are uncontroverted by evidence from the District. Under the Burlington/Carter standard and focusing upon the uncontroverted nature of the evidence of the Student’s difficulties at that time, the program and placement would have been appropriate.

Prong III - Equitable Considerations

Equitable considerations preclude an award of tuition. The Parent declined to inform the District that the Student was encountering significant difficulties as the 2020-2021 school year progressed. (Findings ¶¶ 8, 10). The Parent failed to timely notify the District, via written ten-day notice, of her decision to unilaterally place the Student in a self-contained classroom in a restrictive environment. (Findings ¶ 11). The Parent sent a “ten-day” notice on October 12, 2021, six weeks after the Student started attending the NPS and two months following the Parent’s signing of the contract with the NPS. (Findings ¶ 10-12; P-Ex. H). Approximately two months earlier, by June 2021, the Parent had “realized” that the Student needed help “really soon.” Id. The Parent also declined to notify the District of the Student’s difficulties despite contacting the District about the OT services. (Findings ¶ 8). The Parent’s inaction prevented the District from reconvening a CPSE meeting and considering whether the Student required additional services, or a full-time special education program. In addition, this IHO requested documentary evidence, such as a redacted tax return of the Parent’s inability to pay for the NPS tuition “up front.” (Findings ¶ 17). The Parent provided no such evidence. Equitable considerations proscribe any award of tuition reimbursement or direct payment.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:

  • • The District provided a FAPE to this Student for the 2021-2022 school year;
  • • The Petitioner’s request for relief is DENIED.

SO ORDERED.

DATED: December 20, 2022

Rachel Gibbons

Rachel Gibbons, Esq.

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.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Exhibit

Document

Date

Pages

A

Request for due process proceeding and Notice of Appearance

5/24/2022

7

B

IEP 10/20/2020 13

C Student contract, program description, and curriculum 8/17/2021 24

D Affirmations regarding tuition breakdown and payments 8/03/2022 2

E Curriculum 2021-2022 2

F Student attendance 2021-2022 1

G Assessments, plans, and reports Various 29

H Ten-day notice from Parent to DOE 10/12/2021 2

I Evaluations Various 49 DOE’S EXHIBITS Exhibit Document Date Pages 1 Final Notice of Recommendation and IEP 10/20/2020

15

2

Cover letter enclosing evaluations

9/24/2020

13

3

Series of preschool evaluations

Various

44

4

Final Notice of Recommendation

10/20/2020

1

5

Letter from Agency

9/24/2020

1

6

Letter from Agency

9/24/2020

1

Footnotes

[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.

[3] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.

[4] The Student’s family moved at the end of January 2022. (Tr. 136).

[5] See Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993).

[6] Director, Office of Worker’s Compensation Programs v. Greenwich Colliers, 512 U.S. 267, 281 (1994).

[7] The records in these two cases provided the courts with information regarding the financial resources of the parents. In E.M v. Dep’t of Educ., the Second Circuit referenced the underlying record which indicated the student’s “household income during the relevant period was less than $15,000.00 per year.” (E.M v. Dep’t of Educ., 758 F.3d at 447). In Mr. and Mrs. A., the district court noted that the parents’ income was $64,000.00 per year and the tuition was $84,000 per year. (769 F. Supp. 2d at 411).

[8] References to the detailed “Findings of Fact” section found supra shall be referred to as “Findings” followed by the paragraph number as appropriate.

[9] See 34 CFR § 300.320(a); 8 NYCRR 200.4(d)(2).

[10] See Endrew F., 137 S.Ct. at 1001.

[11] This IHO notes that the first notice to the District that the Student was in need of more intensive support came in the form of a ten-day notice dated October 12, 2021, three months before the Student moved out of the District. (P-Ex. H).

[12] The Parent stated that the District did not provide OT because there was no availability. (Findings ¶¶ 7-8). The Administrator stated that the Parent did not make the Student available for OT services. (Findings ¶ 16). There was no request for compensatory education, based either on failure to provide a FAPE or circumstances due to Covid-19 pandemic.