New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 574601 NYC: 227437

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Region: REDACTED

Hearing Requested By: Parents

Dates of Hearing: July 26, 2022

August 15, 2022

September 12, 2022

October 19, 2022

November 14, 2022

December 13, 2022

January 26, 2023

February 6, 2023

February 9, 2023

February 15, 2023

March 6, 2023

March 17, 2023

April 5, 2023

May 9, 2023

Actual Record Close Date: June 12, 2023

Hearing Officer: Maria R. Dispenza, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 26, 2022

For the Student:

REDACTED, Esq. Parent Attorney

REDACTED Legal Intern

For the Department of Education:

REDACTED, Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 15, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED, Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 12, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED, Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 19, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED, Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 14, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED, Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 13, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED, Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 26, 2023

For the Student:

REDACTED, Esq. Parent Attorney

REDACTED Parent/Mother

For the Department of Education:

REDACTED, Esq. DOE Attorney

REDACTED Teacher Assigned A, CSE 9

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 6, 2023

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED, Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 9, 2023

For the Student:

REDACTED, Esq. Parent Attorney

REDACTED Parent/Mother

For the Department of Education:

REDACTED, Esq. DOE Attorney

REDACTED Assistant Principal

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 15, 2023

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 6, 2023

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED, Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 17, 2023

For the Student:

REDACTED, Esq. Parent Attorney

REDACTED Parent/Mother

For the Department of Education:

REDACTED, Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 5, 2023

For the Student:

REDACTED, Esq. Parent Attorney

REDACTED Legal Intern

REDACTED Parent/Mother

REDACTED Assistant Head of School

For the Department of Education:

REDACTED, Esq. DOE Attorney

REDACTED School Psychologist/District Rep

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 9, 2023

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED, Esq. DOE Attorney

INTRODUCTION

On July 8, 2022, New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] (“IDEA”) by the parent (Parent) of REDACTED (REDACTED) for the school year 2022/23. The Parent requested the hearing by filing an impartial hearing request with the DOE on or about July 1, 2022. The DPC is carried under New York City (“NYC”) Case No: 227437. The impartial hearing was held over a series of dates to complete the record on May 9, 2023. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on June 12, 2023. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND AND POSITIONS OF THE PARTIES

REDACTED is a REDACTED -year old student known to the Department of Education (DOE) and classified as “Learning Disability” (Exhibit C). She is diagnosed with Borderline Intellectual Functioning and Attention Deficit Hyperactivity Disorder, Combined Type (“ADHD”), which according to Parent, impacts various aspects of her daily living, including her social, emotional, and academic functioning (Exhibit A). Historically, through the 2019/20 school year, the DOE placed REDACTED in a 12:1:1 classroom at a community school, with related services of counseling and speech-language therapy. Parent alleges that year after year REDACTED failed to make progress in this setting (Exhibit A). Due to her concerns about REDACTED’s continued lack of progress, REDACTED obtained an independent neuropsychological evaluation for the student in the fall of 2019. Said evaluation found that REDACTED was experiencing “significant academic delays that persist despite being educated in a self-contained classroom setting along with receiving years of services and accommodations.” The evaluation determined that due to REDACTED’s extensive educational needs, she “requires placement in a school for children with emotional and cognitive disabilities with a small teacher to student ratio and where needed supports are provided in the classroom throughout the school day.” REDACTED, the evaluator, further recommended that REDACTED receive, among other supports, (i) an extended school year to prevent regression; (ii) increased mandates in occupational therapy, speech-language therapy, counseling; and (iii) research-based, multisensory instruction (Exhibits A and E). Although REDACTED provided the DOE with a copy of said evaluation, the DOE made no changes to REDACTED’s educational program for the 2020/21 school year thus leading REDACTED to unilaterally place REDACTED at REDACTED (REDACTED) for the 2020/21 school year. REDACTED sought funding and prevailed and REDACTED continuously attended REDACTED thereafter. On February 15, 2022, the DOE convened a meeting to develop an educational program for REDACTED for the 2022/23 school and recommended a 12:1:1 classroom in a District 75 (D75) school on a 12-month basis, with related services of speech and language therapy (2x40, 1:1 and 1x40, group), occupational therapy (1x40, 1:1 and 1x40, group) and counseling (2x40, 1:1 and 1x40, group) (Exhibit C). REDACTED expressed concern with the DOE’s recommendation, and explained that she believed REDACTED needed the level of support provided by REDACTED’s program to make progress. On June 17, 2022 Parent provided notice of intent to re-enroll REDACTED at REDACTED for the 2022/23 school year (Exhibit B) and subsequently filed a DPC seeking direct funding for the 12-month tuition alleging the DOE failed both procedurally and substantively to offer REDACTED a FAPE for the 2022/23 school year in violation of the IDEA and enumerated a series of allegations (Exhibit A).

In an effort to support her position, Parent presented four witnesses: REDACTED, Legal Intern, REDACTED, REDACTED’s mother, REDACTED, Assistant Head of Middle School at REDACTED and REDACTED, Consulting Teacher at REDACTED, along with a documentary exhibit package consisting of seventeen pieces of evidence (Exhibits A-Q).

The DOE asserted that a FAPE was provided to REDACTED for the 2022/23 school year in that a duly constituted IEP team met on February 15, 2022, reviewed appropriate and relevant documents explaining REDACTED’s strengths, needs, supports and goals, and provided both Parent and REDACTED representatives the opportunity to fully participate and offer valuable input. Thus, the IEP team had sufficient information to develop a special education program that was “tailored to the unique educational needs of the student (Exhibit IHO-1 and T @ 54-55) in that the IEP in place provided a very highly, very structured, specialized educational program for REDACTED. The DOE further asserted that an appropriate placement was offered that could implement the IEP in the least restrictive environment.

In an effort to support their position, the DOE presented three witnesses: REDACTED, Assistant Principal at REDACTED @ REDACTED Teacher Assigned and REDACTED, School Psychologist and District Representative at CSE 9, along with a documentary exhibit package consisting of four pieces of evidence (Exhibits 1-4). The DOE only opted to cross-examine one of Parent witnesses, REDACTED.

FINDINGS OF FACT AND DECISION

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) was enacted with the primary purpose to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). It is clear that the legislative intent of 20 US Code Section 1412 of the IDEA is to provide a FAPE to all children with disabilities so that these individuals may ultimately lead productive independent lives as adults, to the maximum extent possible (20 U.S.C. Sx 1400[d][1][A]; see Mrs. W v. Tirozzi, 832 F.2d 748 [2nd Cir. 1987]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22). An IEP is designed as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]). A FAPE is offered to a student when the board of education (a) complied 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 (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]). The IDEA mandates that a student with a disability be provided with a FAPE tailored to meet his unique needs and one that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___, 137 S.Ct.988, 999 (2017). A focus on the particular child is at the core of the IDEA. Endrew F., 137 S.Ct. at 999. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child’s strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student’s requirements and needs, the team must review and consider evaluations, assessment and information provided by the child’s parents, teachers and service providers and thereon determine the type of program required for the child. A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank R. and Dianne R. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank R., 2007 WL 2982269 [Oct. 15, 2007].

The case at hand is a tuition reimbursement case and is therefore governed by the holding of the Hearing Officer’s Findings of Fact and Decision U.S. Supreme Court in Burlington School Comm. v. Dept of Education (471 U.S. 359 [1985]). That case set forth a three-prong test for determining if tuition reimbursement is warranted: (1) were the services offered by the school district inadequate or inappropriate; (2) where the services selected by the parents appropriate; and (3) do equitable considerations support the parents’ claim. Recently enacted state legislation puts the burden of proof for the first prong on the school district and for the second prong on the parent (Chap. 583 of Laws of 2007).

Prong I:

In the instant matter, the DOE bears the burden of presentation and persuasion in all allegations raised in the DPC. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs. Application of a Child with a Disability, Appeal No 93-12; Application of a Child with a Disability, Appeal No 93-9; Application of a Child with a Handicapping Condition, Appeal No 92-7; Matter of Handicapped Child, 22 Ed. Herein, in the presentation of its case, the DOE produced two witnesses who had participated in the IEP meeting of February 15, 2022 but neither of whom had ever met REDACTED, both acknowledging lacking experience working within the recommended D75 setting (T 112-113, and 172) and both who failed to bring forth cogent reasoning as to the manner a D75 12:1:1 class was reasonably calculated to enable REDACTED to make progress in light of her particular needs despite concerns raised by Parent and REDACTED representatives. Notwithstanding the fact that REDACTED had been attending a highly supportive non-public school (NPS) placement for the previous two school years and had previously failed to make progress in a DOE 12:1:1 class, and notwithstanding that REDACTED expressed at the IEP meeting that “REDACTED needs a much higher staff to student ratio to be able to provide her with the support she needs” (Exhibits C and Q) and emphasized “REDACTED’s need for small group instruction, collaborative related services, and a transition plan if she were to be placed in a less supportive environment” (Exhibit Q and C), and notwithstanding that REDACTED expressed concern that a transition plan be established, and notwithstanding that the neuropsychological evaluation found that REDACTED had failed to make meaningful progress in a 12:1:1 class with pull-out related services and unearth that “REDACTED requires placement in a school for children with emotional and cognitive disabilities with a small teacher to student ratio and where needed supports are provided in the classroom throughout the school day”………she requires a curriculum with integrated related services “using a collaborative team approach”……. “a small teacher to student ratio and low distraction environment that includes students with only mild to no behavior issues in the classroom” (Exhibit E), notably, the February 15, 2022 IEP recommended the same class ratio under which REDACTED had previously failed to make progress, failed to provide her with a program in which related services were integrated into curriculum through a collaborative and consultative approach, failed to provide any transitional support services to enable her to adjust to a less supportive program even though REDACTED representatives stressed that such transitional supports would be particularly important for REDACTED because she had previously struggled in a 12:1:1 setting within a DOE school. Furthermore, REDACTED raised attention that the DOE failed to hold any new evaluations or social history updates for the IEP meeting. REDACTED and REDACTED, both of whom have known REDACTED for several years and have direct knowledge of her functioning and educational needs, opined that “REDACTED’s needs could not be adequately supported in a 12:1+1 setting,” because “[t]he IEP’s proposed ratio of 12:1+1 would not provide REDACTED with sufficient instruction support for her to make meaningful progress” (Exhibits P and Q). REDACTED explained that at REDACTED, REDACTED receives the support of two teachers, three paraprofessionals, and push-in related service providers in a 12-student class and while “this high level of adult support allows REDACTED to receive frequent individualized and small group instruction; this would not be possible in a 12:1:1 ratio” (Exhibit P). Both REDACTED and REDACTED expressed concerns upon touring the recommended placement as they observed a loud, busy, and distracting environment (Exhibit N, T @ 204). REDACTED credibly testified that during the tour, the school coordinator described the students as “rough” and “shared that, in general, many of the children in the school have aggressive behaviors and attentional difficulties, and there was no way to ensure that a student would be in a room with few distractions” (Exhibit N).

Upon due consideration, I find that the DOE failed to overcome their burden of proof in that it failed to provide evidence establishing substantiative reasoning and rationale for the recommendations made in the student’s IEP and failed to substantiate how the IEP afforded REDACTED a FAPE. I find the IEP was not reasonably calculated to enable her to obtain educational benefit. The DOE failed to rebut Parent’s allegations that the IEP and recommended placement were inappropriate. Thereon, I find the DOE failed to meet its affirmative burden of showing that it provided a FAPE to REDACTED for the 2022/23 school year by providing an appropriate IEP and placement, resulting in a denial of FAPE.

Prong II:

Having determined that the DOE did not offer the student a FAPE for the 2022/23 school year, I now proceed to evaluating the appropriateness of the parents’ unilateral placement of the student at REDACTED. The parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch Dist Four v. Carter 510 U.S. 7 [1993]). The private placement need not employ certified special education teachers, Carter, supra. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of the 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).

In the case at hand, the DOE evidence and cross-examination of parent witnesses failed to generate material challenge to Parent assertions. Contrarily, the evidence and unrebutted testimony presented by the Parent supports that REDACTED was an appropriate placement for REDACTED during the 2022/23 school year. As per the submitted documents, “REDACTED curriculum is closely aligned with the New York State and Common Core Learning Standards, with varying levels of support and modifications to ensure quality individualized learning for each student……..it incorporates distinct core instructional strategies to enhance students’ successful acquisition of knowledge and skills relevant to their individual educational needs and individualized education plans……the Middle School fosters the development of academic, adaptive daily living, and social-emotional skills” (Exhibit I);

“REDACTED is designed to reinforce academic and social skills developed in classrooms during the school year. Students participate in a small group, multi-sensory, thematic based learning environment with integrated related services including speech and language therapy, counseling, physical therapy, and occupational therapy. Students are grouped based on differentiated learning profiles and are assessed continuously throughout the six week program” (Exhibit J).

REDACTED described in detail the program at REDACTED and attested to being very familiar with REDACTED. She stated (Exhibit P):

“I observe REDACTED throughout the day during arrival, class time, lunch/recess, and dismissal. I also regularly meet with her teachers and service providers, and discuss REDACTED’s progress during our weekly cohort meetings and Middle School team meetings. Additionally, if any specific concerns arise regarding REDACTED, I would be looped in by her team of providers on as-needed basis”;

“Based on my knowledge of REDACTED, I agree that the 2019 Neuropsyc’s recommendation for “[p]lacement in a school for children with cognitive disabilities with a small teacher to student ratio where needed supports are provided in the classroom; a curriculum with integrate related services using a collaborative team approach” continues to be appropriate for REDACTED. Consistent with the 2019 Neuropsych’s recommendations, REDACTED continues to require a “small teacher to student ratio and a low distraction environment that includes students with only mild to no behavior issues in the classroom.” In my opinion, REDACTED’s Middle School program provides REDACTED with the supports recommended in the 2019 Neuropsych” “Based on my professional opinion, experience, and interactions with REDACTED, I believe REDACTED Middle School is an appropriate placement for her for the 12-month 2022–23 school year. REDACTED’s program provides REDACTED with the individualized instruction she requires, including a small student to teacher ratio in a positive classroom environment, in addition to weekly counseling, speech, and occupational therapy sessions tailored to meet her needs. REDACTED’s program provides REDACTED with significant support in her academics, language and other related services and increases her social and life skills so that she is a more independent student. Additionally, as described above, REDACTED’s integrated collaborative related services approach addresses REDACTED’s difficulties with generalizing skills between the classroom, therapy, and community environments. Overall, REDACTED’s program meets REDACTED’s unique areas of need, and has enabled her to make progress”;

“In my opinion, based on my personal knowledge of REDACTED and my professional experience, REDACTED’s needs could not be adequately supported in a 12:1+1 setting as recommended by the February 2022 IEP. The IEP’s proposed ratio of 12:1+1 would not provide REDACTED with sufficient instructional support for her to make meaningful progress. At REDACTED, each of REDACTED’s academic courses is limited to 12 students, and is supported by 2 teachers as well as three paraprofessionals and additional related service providers. This high level of adult support allows REDACTED to receive frequent individualized and small group instruction; this would not be possible in a 12:1+1 ratio. Additionally, due to her struggles with attention and focus, REDACTED may become overstimulated and requires in-the-moment support from a staff member or counselor when she is dysregulated or distracted. A 12:1+1 classroom, without the support of related service clinicians, would not be able to provide REDACTED with these necessary support. Furthermore, it would not be appropriate for REDACTED to receive her related services only in a separate location as described on the February 2022 IEP. REDACTED requires that her related services be integrated into her curriculum through a collaborative team approach, as recommended by the 2019 Neuropsych and provided at REDACTED, in order for her to make meaningful progress”

REDACTED, REDACTED’s mother testified that she expressed her concerns to the IEP team that REDACTED requires a small teacher to student ratio where needed supports are provided throughout the day with integrated supports of occupational therapy, speech, and counseling provided using a collaborative team approach, she opined that the proposed DOE placement was inappropriate and she articulated that she believes REDACTED to be an appropriate placement for REDACTED and that the DOE has funded that program for her since her initial enrollment, and further testified that her family household income does not afford the opportunity to pay the tuition at REDACTED (T @ 190-213).

Review of REDACTED’s progress reports (Exhibits M and O) and REDACTED’s unrebutted affidavit corroborate her progress throughout the 2022/23 school year at REDACTED in that she has developed new skills across academic areas: she has improved her comprehension skills, is now independently decoding at the fourth grade level, and in math, has improved her number sense and problem solving abilities; has also made social-emotional and behavioral progress, requiring only “minimal support to remain engaged in group activities,” and is also able to focus on her conversation, express her thoughts and feelings, and make connections to herself and peers. According to REDACTED, since attending REDACTED, REDACTED has improved in her reading, writing, and her functional ability to handle money (T @ 207–212). REDACTED repeatedly attested that REDACTED has continued to make progress at REDACTED, and that the program is appropriate for her (T @ 194– 211).

In totality, the record reflects REDACTED provided a rich supportive environment that correlated well with REDACTED, that the curriculum was specifically tailored to meet REDACTED’s needs and that she received a highly individualized instruction that enabled her to make appropriate progress. Based upon the foregoing, I find that the student made meaningful progress at REDACTED for the 2022/23 school year across the board: academically, socially and emotionally. The record reflects that REDACTED was a placement that was “specifically designed to meet the unique needs” of the student Frank G, supra and that REDACTED has made progress therein (Exhibits M, O, P and Q, T @ 190-214).

Prong III:

Having found REDACTED an appropriate placement, I now consider equitable considerations, the final criterion for a reimbursement award. In weighing the equities, “the critical consideration, as the Court sees it, is whether they have cooperated in good faith to attempt to develop an IEP to the maximum extent possible, Schaffer, supra. There is nothing in the record to show that the parent was anything other than cooperative. The DOE did not present any evidence or testimony regarding the equity considerations for the 2022/23 school year and failed to cross-examine Parent. All indications are that the Parent cooperated with the DOE and did not interfere in any way with the DOE’s obligation to provide a FAPE for the student for the 2022/23 school year. REDACTED’s Parents put the DOE on timely notice of REDACTED’s unilateral placement and her intent to seek reimbursement (Exhibit B). As per Parent’s credible assertion, the DOE failed to address the Parent’s concerns or to develop an alternative program or placement recommendations.

This case involves a situation where the Parent’s financial circumstances limits her ability to make payment to REDACTED (T @ 212-213). REDACTED testified that the family income renders a hardship to pay the annual tuition. Established case law warrants a finding that under such circumstances a school district must pay the monies owed, assuming parent’s claim is meritorious with regard to the three Burlington factors. In Conners v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y.) at 805, the court reasoned:

“By prohibiting prospective placement, Defendants would deny assistance to families that are not able to front the cost of a private, non-approved school, without exception…Given the fragile state of many disabled children, and their dire need for constant and consistent care, even brief periods of inappropriate schooling could lead to tremendous educational, social, emotional and psychological deterioration. Families of greater economic means would not be faced with such a grim prospect. It simply cannot be the case that an act designed to grant “all” disabled children access to needed services could undermine that very goal by making such access dependent upon a family’s financial situation.”

I find (1). that the DOE failed to offer the student a FAPE for the 2022/23 school year, (2). that the unilateral placement of the student at REDACTED was appropriate (3). that the program at REDACTED was “reasonably calculated” to provide REDACTED with meaningful educational benefits and (4). that equitable considerations weighed in favor of the parents’ request for reimbursement for all costs associated with the placement of the student at REDACTED for the 2022/23 12-month school year. Based upon the foregoing,

ORDER

It is hereby ordered that within thirty (30) days of receipt of this Order, the Department of Education shall directly/retrospectively fund the cost of the student's tuition at the REDACTED for the 2022/23 12-month school year by providing direct payment to REDACTED in the amount of $98,725.00.

All reimbursements and/or direct funding shall be supported by the presentation of appropriate documentation.

This Order excludes any sessions that may have been previously paid by the DOE pursuant to any Pendency Agreement/Order.

Dated: July 2, 2023

Maria R. Dispenza

MARIA R. DISPENZA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

PLEASE TAKE NOTICE

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.

DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 9, 2023

1. DOE: REDACTED School Progress Report 2021/22 SY, 02/04/22 – 18pp DOE

2. IEP Meeting Minutes, 02/15/22 – 3pp DOE

3. Affidavit of REDACTED, Undated – 2pp DOE

DOCUMENTATION ENTERED INTO THE RECORD ON April 5, 2023

4. DOE: Affidavit of REDACTED, Undated -3pp DOE

DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 9, 2023

A. Parent: Due Process Complaint and Transmittal Confirmation, 07/01/22 - 12pp

B. Ten-Day Notice, 06/17/22 - 5pp

C. IEP, 02/15/22 - 33pp

D. School Location Letter, June 1, 2022 - 1pp

E. Neuropsychological Evaluation, REDACTED, Fall 10/16/19- 27pp

F. REDACTED School IEP Annual Review Notes, 02/15/22 - 6pp

G. REDACTED Enrollment Contract, 05/24/22 - 3pp

H. REDACTED Tuition Affidavit, 11/26/22 - 1pp

I. REDACTED Middle School Description, 2022/23 - 7pp

J. REDACTED Summer School Description, Summer 2022 - 2pp

K. Student Summer School Schedule, Summer 2022 – 1pp

L. Student Academic Year Schedule, 2022/23 – 1pp

M. Report Card, REDACTED 2021-22 SY, 02/05/21 – 19pp

N. Affidavit of REDACTED, 08/03/21 – 3pp

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 17, 2023

O. Parent: Report Card, REDACTED, 2022/23 SY, 02/03/23 – 22pp

P. Affidavit of REDACTED, REDACTED School, 03/08/23 -11pp

Q. Affidavit of REDACTED, REDACTED School, 02/27/23 - 4pp

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 9, 2023

IHO-1. DOE Closing Brief, 05/05/23 – 7pp

IHO-2. Parent Closing Brief, 05/05/23 – 24pp