New York City Department of Education, Impartial Hearing Decision

NYSED # 574830 / NYC # 227640

FINDINGS OF FACT AND DECISION

Case Number: 227640

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 08/12/2022

09/08/2022

Actual Record Close Date: 09/12/2022

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/12/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], Advocate

For the Department of Education: NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 09/08/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], Advocate

[REDACTED], Parent

For the Department of Education: NONE

DOCUMENTS ENTERED INTO THE RECORD

PARENT DOCUMENTS Entered 08/12/2022

Ex

Date

Description

Page(s)

A 7/4/22 Impartial Hearing Request 6

B 7/5/21 Notice Letter 3

C 2021-2022 [REDACTED]/UP Contract 3

D 2021-2022 [REDACTED]/UP Payment Affidavit 1 E 7/26/22 Affidavit [REDACTED], Founder and Director of [REDACTED]/UP 4 F 7/2/22 Affidavit [REDACTED], Clinical Director [REDACTED]/UP 4 G 2021-2022 [REDACTED]/UP Student’s Attendance 4 H 2021-2022 [REDACTED]/UP Student’s Class Schedule 2

I 2021-2022 [REDACTED]/UP Student’s Related Services 1

J 2021-2022 [REDACTED]/UP Behavior Intervention Plan 5

K 2021-2022 [REDACTED]/UP Sensory Diet 3

L 9/30/21 [REDACTED]/UP Initial Educational Evaluation 7

M 1/20/22 [REDACTED]/UP Midyear Educational Evaluation 6

N 5/26/22 [REDACTED]/UP Final Educational Evaluation 6

O 2021-2022 [REDACTED]/UP Goals 4

P 7/21/21 [REDACTED]/UP Occupational Therapy Initial Assessment 6

Q 1/17/22 [REDACTED]/UP Occupational Therapy Midyear Assessment 3 R 5/27/22 [REDACTED]/UP Occupational Therapy Final Assessment 4

S 7/20/21 [REDACTED]/UP Physical Therapy Initial Assessment 6

T 7/20/21 [REDACTED]/UP Physical Therapy Midyear Assessment 5

U 6/3/22 [REDACTED]/UP Physical Therapy Final Assessment 7

V 7/21/21 [REDACTED]/UP Speech Therapy Initial Assessment 6

W 1/13/22 [REDACTED]/UP Speech Therapy Midyear Assessment 3 X 6/3/22 [REDACTED]/UP Speech Therapy Final Assessment 4

Y 2020 Parents’ Tax Return 4

Z

3/16/21

IEP 12 HEARING OFFICER DOCUMENTS Entered 08/12/2022 I Notice of appointment, 07/12/2022, four pages II Consolidation Order, 08/09/2022, three pages

DEPARTMENT OF EDUCATION

None

INTRODUCTION

On 07/12/2022, 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 08/12/2022, to allow the DOE an opportunity to present a defense to the allegations contained in the DPC.

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

Due Process Complaint (DPC) alleges a failure of the DOE to offer the Student a Free Appropriate Public Education (FAPE) for the 2021-2022 school year. (Ex A 1)

Allegation includes that the Parent never received a placement for the 12 month 21-22 school year: “Although the IEP meeting was convened on March 16, 2021, the parents subsequently received no information concerning 12-month services for the student who is mandated for 12-month special education and related services. To date, the parents have not received concrete information as to how the school plans implement the student’s IEP and where the student will be placed during the summer of 2021.” (Ex A 3, T 13)

Parent seeks relief to remedy the alleged failure, which includes: DOE funding for unilateral placement (UP), at [REDACTED] ([REDACTED]/UP), for 21-22 school year, with transportation. (Ex A 3)

Parent notes that the Student has been receiving transportation services, to and from the UP, from the DOE Office of Pupil Transportation (OPT). Since the school year has passed this is no longer an issue. (T 12)

THE POSITION OF EACH PARTY

The DOE failed to appear at any Hearing date, or otherwise defend against the allegations contained in the DPC.

Parent Attorney set forth the basic Parent position, via DPC. (Ex A)

Parent submits Documentary Evidence into the Record which is found to be credible and supportive of the Parent’s case, as considered below:

Parent Testimony was provided, at Hearing of 09/08/2022. Testimony included:

• • General description of Student challenges: “He has a global developmental delay. He has cerebral palsy, also seizures. He wears glasses.” (T 24);
• • Student has never attended a Public School (T 25);
• • Student did attend Public School virtually, without success, for the 20-21 school year (T 25);
• • Parent did not receive a placement for the summer of 2021 (T 25);
• • Parent, without placement, contacted the UP, for assistance with getting into the school (T 26);
• • Student believes the services provided by the UP were excellent, and the Student did “very well” (T 26);
• • During the 21-22 school year the Parent communicated with the UP (T 26-27);
• • Parent was referred to UP Contract (Ex C), and states she and her husband are responsible for payment;
• • Parent cannot afford to pay the UP Tuition (T 27);
• • Parent was referred to her 2020 Tax Return (Ex Y), and income is consistent with that return (T 27-28); and
• • Parent family receives public benefits in the form of “food stamps” (T 28).

A

7/4/22

Impartial Hearing Request:

Details Parent allegations of a failure by the DOE to offer the Student a FAPE for the 21-22 school year, and sets forth sought after relief.

B

7/5/21

Notice Letter:

Parent notifies the DOE of objection to the recommendations contained in the 03/31/2021 IEP (Ex Z); a lack of an actual 21-22 school placement; and intent to place Student at the UP and seek District funding.

C

2021-2022

[REDACTED]/UP Contract:

Student 21-22 Tuition set forth as $112,700.00. (Ex C 1)

Parent is obligated to payment via signature upon the Contract. (Ex C 3)

D

2021-2022

[REDACTED]/UP Payment Affidavit:

Parent has not made any payment towards the Student’s 21-22 Tuition.

E

7/26/22

Affidavit [REDACTED], Founder and Director of [REDACTED]/UP:

Testimony includes:

- General characteristics of the UP: private special education school, incorporates a variety of methodologies into student curriculum, including Applied Behavior Analysis (ABA), Natural Environment Teaching (NET), Sensory Integration and Behavior Modification, therapeutic services, aquatic therapy, assistive technology and music therapy (Ex E 1);

- Familiarity with the Student;

- Student specific information including: diagnosis of spastic hemiplegia cerebral palsy, self directed and presents with a variety of problem behaviors, need for Behavior Intervention Plan (BIP), and sensory diet;

- Student services address Student need for proprioceptive and vestibular input needed to improve attention and focus throughout the day;

- Student receives related services as detailed in most recent IEP;

- Comprehensive evaluations are completed, by the UP three times yearly;

- Student curriculum integrates: 1:1 Academic and ABA instruction and sensory integration, with teacher led classroom lessons; classroom targets Activities of Daily Living (ADL); a multisensory approach has proven instrumental in Student’s progress; and Student is provided with a BIP (Ex E 1);

- Student is noted to have made significant gains in all areas including: visual/spatial skills and mathematics (Ex E 1); and

- Student progress in areas of mathematics, language, ADL, and behavior

Are also detailed (Ex E 2).

F

7/2/22

Affidavit [REDACTED], Clinical Director [REDACTED]/UP:

Testimony from Occupational Therapist includes:

• • Review of Student characteristics and challenges (Ex F 1);
• • Examples of Student progress, for the 21-22 school year, including areas of gross motor function, graphomotor skills, and ADL (Ex F 2);
• • Progress is also noted in communication and feeding (Ex F 3-4)

G

2021-2022

[REDACTED]/UP Student’s Attendance:

Student is evidenced to have attended the UP for the 12 month 21-22 school year.

H

2021-2022

[REDACTED]/UP Student’s Class Schedule:

• • Student academic and therapy (Occupational Therapy, Speech Language Therapy and Physical Therapy) schedule is detailed, including times of 1:1 and small group instruction (Ex H 1); and
• • Each component of Student schedule is further detailed (Ex H 2).

I

2021-2022

[REDACTED]/UP Student’s Related Services:

• • Individual Related services include:

OT 3x30 minute sessions

PT 3x30 minute session

SLT 3x30 minute session

• • Additional services include:

1:1 Instructor

Counseling 1 x weekly

Parent Counseling and Training 2 x monthly

Aquatic Therapy 2x weekly

Music Therapy

Animal Therapy

J

2021-2022

[REDACTED]/UP Behavior Intervention Plan:

• • BIP details areas of Student adverse behaviors, Baseline of problem behavior (Ex J 1); and
• • Details intervention strategies (Ex J 3-5)

K

2021-2022

[REDACTED]/UP Sensory Diet:

• • Details Student Sensory Diet to address Student classroom behaviors, including: Touch, Vestibular, Auditory and Desensitization. (Ex K 1-2)

L

9/30/21

[REDACTED]/UP Initial Educational Evaluation:

UP Educational Evaluation includes:

• • Student background information and Assessment Tools (Ex L 1);
• • Results of Testing (Ex L 2-7);
• • Details areas of concern, such as language and reading skills and social and play skills, and behaviors (Ex L 7); and
• • Recommendation is made to continue to receive a program that includes: 1:1 instruction, ABA and a BIP. (Ex L 7)

M

1/20/22

[REDACTED]/UP Midyear Educational Evaluation:

UP Educational Evaluation includes:

• • Student background information and Assessment Tools (Ex M 1);
• • Results of Testing (Ex M 2-5);
• • Details areas of progress and concern, including areas of academics, communication and behavior (Ex M 5-6); and

Recommendation is made to continue to receive a program that includes: 1:1 and group instruction, ABA services and a BIP. (Ex M 6)

N

5/26/22

[REDACTED]/UP Final Educational Evaluation:

[REDACTED]/UP Midyear Educational Evaluation:

UP Educational Evaluation includes:

• • Student background information and Assessment Tools (Ex N 1);
• • Results of Testing (Ex N 2-5);
• • Details areas of progress and concern, including areas of academics, communication and behavior (Ex N 5-6); and

Recommendation is made to continue to receive a program that includes: 1:1 and group instruction, ABA services and a BIP. (Ex N 6)

O

2021-2022

[REDACTED]/UP Goals:

Details Student goals and supports utilized to meet each goal in areas that include:

• • Visual/Spatial Mathematics (Ex O 1)
• • Reading (Ex O 1-2)
• • Language (Ex O 2)
• • Group Skills
• • Social Interaction / Play Skills (Ex O 3)
• • ADL (Ex O 3-4)
• • Motor Skills (Ex O 4)

P

7/21/21

[REDACTED]/UP Occupational Therapy Initial Assessment:

Includes assessment, goals and recommendation for services, in the area of Occupational Therapy.

Q

1/17/22

[REDACTED]/UP Occupational Therapy Midyear Assessment:

Student progress is noted and recommendation is made to continue services.

R

5/27/22

[REDACTED]/UP Occupational Therapy Final Assessment:

Student progress is noted and recommendation is made to continue services.

S

7/20/21

[REDACTED]/UP Physical Therapy Initial Assessment:

Includes assessment, goals and recommendation for services, in the area of Physical Therapy.

T

7/20/21

[REDACTED]/UP Physical Therapy Midyear Assessment:

Student progress is noted and recommendation is made to continue services.

U

6/3/22

[REDACTED]/UP Physical Therapy Final Assessment:

Student progress is noted and recommendation is made to continue services.

V

7/21/21

[REDACTED]/UP Speech Therapy Initial Assessment:

Includes assessment, goals and recommendation for services, in the area of Speech Language Therapy.

W

1/13/22

[REDACTED]/UP Speech Therapy Midyear Assessment:

Student progress is noted and recommendation is made to continue services.

X

6/3/22

[REDACTED]/UP Speech Therapy Final Assessment:

Student progress is noted and recommendation is made to continue services.

Y

2020

Parents’ Tax Return:

Parent gross income is evidenced to be $25,475.00.

Z

3/16/21

IEP:

Student IEP includes:

• • Classification of Orthopedic Impairment (Ex Z 1)
• • Academic, communication, and motor delays (Ex Z 1-4)
• • IEP includes areas of behavior concern, including he might unintentionally hit someone (Ex Z 3)
• • IEP does not note whether a BIP is or is not needed (Ex Z 5)
• • Management needs include a small classroom setting and movement breaks throughout the day (Ex Z 4)
• • Recommendation is made to a 12:1+1 Special Class, with related services of OT, PT and SLT, with a Health Ambulation Paraprofessional (Ex Z 8) The IHO notes that there are no specific clear goals regarding Student behavior and there are no goals associated with the recommended Paraprofessional.

FINDING OF FACTS AND DECISION

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

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

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

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

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

07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

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

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

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

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

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

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

DOE offer of FAPE for the 2021-2022 School Year

The DOE opted not to present a defense to the Parent’s allegations, contained in the DPC. (Ex A)

The DOE has evidenced neither the development of an appropriate IEP, nor placement, for the commencement of the 21-22 school year.

An IEP was developed, on 03/16/2021, which contains several deficiencies, as outlined above. (Ex Z)

The Parent has evidenced that an actual Student placement was never received. (Ex A 3 & T 25)

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

I find the DOE failed to offer the Student a FAPE for the 2021-2022 school year.

UP Placement for the 2021-2022 School Year

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

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

Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex E, F, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, W, & X, T 26-27)

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

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

TUITION FUNDING 2021-2022 School Year

Parent is entitled to District funding of Student Tuition, for attendance at the UP, 2021-2022.

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

Parent evidenced appropriate Ten Day Notice Letter. (Ex B)

Tuition for the 12 month UP placement set forth as $112,700.00. (Ex C 1)

None of the UP Student Tuition has been paid. (Ex D)

Parent is obligated to payment of the UP Contract. (Ex C 3, T 27)

Parent evidences limited income affecting ability to pay the UP Student Tuition, and an inability to pay the Contracted Tuition amount. (Ex Y, T 27-28)

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. (T 25-26)

Parent provides information relative to their financial capability. (Ex X 8)

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 the Parent meets the burden and establishes an inability to pay the Student UP Tuition, as contracted, for the 21-22 school year.

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 2021-2022 school year.

I find the Parent is entitled to direct District funding of the Student’s 21-22 UP Tuition, as Ordered below.

ORDER

• • The Department of Education (DOE) failed to offer the Student a FAPE for the 2021-2022 school year.
• • The DOE shall directly fund Student, 12 month, 2021-2022 Tuition at [REDACTED] ([REDACTED]/UP) in the amount of $112,700.00.
• • 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.
• • 4. This decision is subject to appeal and review by the State Review Officer.

DATED: September 14, 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.