New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 228351

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

School District: N.Y.C. Dept. of Ed., [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 10/11/2022

Record Close Date: 11/15/2022

Date of Decision: 11/15/2022

Impartial Hearing Officer: Mercedes Cesaratto

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 11, 2022

For the Student:

• • [REDACTED], (hereinafter referred to as “Parents’ Attorney”)
• • [REDACTED], Parent
• • [REDACTED], Assistant Head of School for the Attending School

For the Department of Education (“DOE”):

• • [REDACTED], Esq., attorney for DOE (hereinafter referred to as “DOE’s Attorney”)

NEW YORK CITY OFFICE OF ADMINISTRATIVE

TRIALS AND HEARINGS (OATH)

SPECIAL EDUCATION HEARINGS DIVISION

[REDACTED], a Minor, by and through his/her Parent(s),

PETITIONER FINDINGS OF FACT AND DECISION

against Case # 228351 THE NEW YORK CITY Mercedes Cesaratto

DEPARTMENT OF EDUCATION, Impartial Hearing Officer

RESPONDENT

FINDINGS OF FACT AND DECISION

I. Introduction and Jurisdiction

This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.

The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing.

II. Background and Procedural History

This matter concerns the Student, a [REDACTED] year old student classified as a student with a disability under the IDEA. The Student’s eligibility for special education supports and services is not in dispute. Petitioner is the parent of the Student. On July 5, 2022, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”). Parent alleges the DOE failed to provide a free appropriate public education (FAPE) to the Student because the DOE failed to: 1) allow the Parents to participate in the Student’s education; 2) conduct triennial evaluations and independent educational evaluations (IEE’s); 3) conduct a vocational assessment; 4) recommend assistive technology (“AT”); 5) recommend an appropriate program; 6) recommend an appropriate placement; and 7) failed to have a compliant IEP team. (Ex. P-A)^[1]

As relief, the Parents seek an order directing the DOE to directly fund the Student’s placement at the Attending School for the 2022-2023 school year. The Parent is also requesting this IHO to order the DOE to immediately conduct the required triennial evaluations and re-evaluate the Student within 30 days of the final order in the areas of neuropsychological, speech and language, assistive technology, occupational therapy, physical therapy and vocational assessment and if the DOE fails to conduct the re-evaluations within 30 days, to order the requested IEE’s as part of the final order. (Tr. 16, 33-34)

The undersigned Hearing Officer was appointed to preside over this case on July 15, 2022. A Pre-Hearing Conference (“PHC”) was held on September 13, 2022, and the Parent subsequently provided the DOE with proposed exhibits A through S in advance of the hearing, copying me. The DOE did not submit any exhibits. (Tr. 7)

On October 11, 2022, a Due Process Hearing (“DPH”) was held. The Parent’s proposed exhibits were admitted into evidence without objection by the DOE. (Tr.6) During the DPH, the DOE stated they were not presenting a case, and did not offer any witness or documentary evidence. The DOE’s attorney conceded both that the DOE failed to provide the Student with a FAPE for the 2022-2023 school year and (Tr. 7), that the Student required all the independent educational evaluations (IEE’s) identified in the DPC. (Tr.11) The DOE’s attorney did not cross-examine any of Parent’s witnesses and waived his right to opening and closing statements. (Tr. 7, 11, 18, 26, 29, and 35). The Parent made an opening statement, presented two witnesses: the Assistant Head (“Assistant Head”) of the Attending School (“Attending School”) and the Parent. At the conclusion of the hearing the Parent’s attorney submitted a closing statement. (Tr. 29) A list of the documentary evidence in this proceeding is appended to this decision.

III. FINDINGS OF FACT

After considering all the evidence, my findings of fact are as follows:

The Student is [REDACTED] years old and is classified by the DOE as Student with Other Health Impairment (“OHI”) and has been diagnosed with intellectually disability, mild severity; attention-deficit/hyperactivity disorder; combined presentation; EEF1A2 gene mutation; refractory generalized epilepsy and has developmental delays. (P-A) The Student, who is now in the ninth (9th) grade, was last re-evaluated by the DOE in 2015, when the Student was in the first (1st) grade. (P- R) The Student has been attending the Attending School since the 2016-2017 school year which has been funded by the DOE since 2016. (Tr. 12) The Attending School, is a non-profit, independent school for students with developmental and cognitive disabilities from kindergarten through age 21. (P-S)

Prior to attending the Attending School, the Student attended NYC Public schools until the Spring of 2016. (P-A) The most recent evaluations of the Student conducted by the DOE occurred when the Student was in the 1st grade and included the following: DOE Psychoeducational Evaluation dated July 6, 2015 (P-B); DOE Speech and Language Evaluation dated November 24, 2015 (P-C); DOE Physical Therapy dated November 25, 2015 (P-D); DOE Occupational Therapy Evaluation dated December 2, 2015 (P-E); DOE Assistive Technology Evaluation dated December 10, 2015. (P-F) On January 20, 2022, the DOE convene an IEP meeting to plan the Student’s 2022-2023 school year, as the Student entered 9th grade, relying on the out of date evaluations conducted over seven (7) years earlier, when the Student was in the 1st grade. (P-A, B, C, D, E, F, R) The Parent attended the January 20, 2022, IEP meeting and voiced concerns about the program for the Student. (P-R) On May 20, 2022, the DOE issued a Prior Written Notice and school location letter for the Student for the 2022-2023 school year, proposing the same “public school” that the DOE had proposed the prior year, during the 2021-2022 school year. (P-R, G) The Parent stated he then reached out to the “Assistant Principal” of the “public school” in June of 2021 and after discussions with the “Assistant Principal” he found the proposed “public school” an inappropriate placement for the Student. Subsequently, the Parents toured the “public school” on July 23, 2021, and again found the “public school” an inappropriate placement for the Student. The Parent noted the “public school” classroom that the student was to be placed in was too large and did not have the individualized support as there was only one teacher and two paraprofessionals for the 12 students. (P-R) Additionally, the Parent noted the students would have to share the gym, lunchroom, and recreational spaces with the general education students which would be problematic for the Student because the student lacks the appropriate social skills and presents an easy target for bullying. (P-R)

On June 15, 2022, the Parent reached out to the DOE with questions about the placement of the Student at the “public school”, but the DOE never responded. Therefore, the Parent based his decision on the inappropriateness of the “public school” from the prior tour in July 2021. (P-R) On the same day, the Parent requested the DOE re-evaluate the Student who had not been re-evaluated since 2015. (P-H) On June 16, 2022, the Parent submitted a ten-day notice to the CSE informing the DOE of the Parents’ intent to continue sending the Student to the Attending School for the 2022-2023 school year based on the inappropriate program and placement recommendation. (P-R, I) On June 23, 2022, the DOE issued the same PWN recommending the same “public school”. (P-R, J)

The Parent testified the Student experienced anxiety and depression when she attended the DOE public schools “because she felt she was not learning at the same rate that her peers were learning” and they felt the DOE’s program was not appropriate for the Student. (Tr. 22-23) The Parent further testified that the issues the Student had when in public school were addressed in a positive manner by the Attending School. The Parent testified the Student receives “one-on-one instruction where she is redirected and focused” and the Student “gets to focus more on her assets as opposed to…being in a school with kids where various abilities, intellectual abilities, are all in the same setting, so she does not feel,…like she is inferior in any way.” (Tr. 23) The Parent stated the Attending School focuses on the Student’s adaptive skills and the Student “feels like she’s on par with her peers.” (Tr. 23). The Parent testified the Student “is the happiest kid you’ve ever met” and the Student is “over the moon about the Attending School. The Student is making friends, whereas prior to attending the Attending School, the Student had never made friends. The Parent stated academically, the Student is “able to do far more things using her skill set to do them.” (Tr. 24) Despite still not being able to read, the Student “can tell stories and get through books with pictures and, she has a tremendous amount of verbal ability that she did not have before” and the Parent believes the Attending School offers the Student a much more appropriate setting. (Tr. 24)

The Assistant Head of the Attending School testified credibly about the Attending School and its programs. The Assistant Head testified that the Attending School has a 12-month “high school program for students with moderate to severe developmental or cognitive disabilities” with programs designed to “support students to be as independent as possible.” (P-S) The program provides a balance between academics and related services and vocational skills” and each student is provided with an individualized program to foster the students’ independence at school, home, and in the work environment which prepares them for meaningful and purposeful lives after high school. (P-S2) The upper school program services students aged 14 to 18. The high school is grouped into 10 cohorts which consists of five lower class cohorts for grades 9 and 10 and five upper class cohorts for grades 11 and 12, each cohort includes a maximum of 12 students, joined by one head teacher, an assistant teacher and two paraprofessionals.

The programs are tailored to meet each student’s individual needs using a variety of instructional resources which include the Fountas and Pinnell reading program, Words Their Way phonemic awareness and vocabulary awareness, Edmark, a repetitive sight word reading program. The math program uses a variety of external and teacher made resources to teach concrete and sequential math concepts while applying them to real life situations, such as measurement, money, and estimations.” (P-S3). The teachers at the Attending School are certified by New York State and/or have a master’s degree or in the process of completing a master’s degree. The assistant teachers have a bachelor’s degree, and many are in the process of obtaining a master’s degree. The Attending School offers speech therapy, occupational therapy, physical therapy, and counseling. All the related service providers have a master’s degree in their field and licensed by New York State. The Attending School’s curriculum offers art therapy and music therapy. (P-S3).

The Assistant Head testified that the Student is currently enrolled in the high school program in a classroom with 12 students, one head teacher, and one assistant teacher and 2 paraprofessionals (P-S11-12). The Student’s program for the 2022-2023 school year includes ELA, Math, Science, Social Studies, Adaptive Skills, the Arts, and Related Therapeutic Services including: Occupational Therapy, Physical Therapy, Speech, and counseling. The Student has co-curricular activities including opportunities for sports, clubs, dances, plays, and typical high school experiences. (P-S11-12)

The Student’s tuition for the 12-month program at the Attending School for the 2022-2023 school year is $92,287.50. (P-K) The Parents understand that they are ultimately responsible for paying the Student’s tuition if their due process complaint fails.

IV. CONCLUSIONS OF LAW AND ANALYSIS

The IDEA establishes a “substantive right to a ‘free appropriate public education’” for children with disabilities. Endrew F. v. Douglas Co. School Dist, 137 S. Ct. 988, 993 (2017) (quoting Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982)). 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. See 20 U.S.C. § 1415(f)(3)(E)(i). Under the IDEA and New York law, where there is a procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE. See 20 U.S.C. § 1415 (f)(3)(E)(ii); 8 N.Y.C.R.R. § 200.5(j)(4)(ii).

A FAPE is offered to a student when: (a) the DOE 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; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). “Not every procedural error will render an IEP legally inadequate.” M.H. v. New York City Dep’t of Educ., 685 F. 3d 217, 245 (2d Cir. 2012) (citation omitted). If a procedural violation is 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 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).

In general, an impartial hearing officer'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. School districts are not required to “maximize” the potential of students with disabilities but 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 v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003). 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.

Throughout the hearing process, a school district bears the burden to show that it (1) complied with the IDEA’s procedural requirements; and (2) designed an IEP reasonably calculated to confer educational benefit on the student. C.B. ex rel W.B. v. N.Y. City Dep’t of Educ., 2005 U.S. Dist. LEXIS 15215, *37 (E.D.N.Y. June 10, 2005); 20 U.S.C. 1415(i)(2)(C)(iii); see also Walczak, 142 F.3d 119. However, “a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” N.Y. Educ. § 4404(1)(c).

Under the three-prong test established by the Supreme Court in Sch. Comm. of Burlington, Mass, v. Dep’t of Educ. of Mass, 471 U.S. 359 (1985) and Florence County. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), parents who unilaterally place their children in private school are entitled to reimbursement from the school district if the services offered by the school district were inadequate or inappropriate, the services selected by the parent(s) were appropriate, and equitable considerations support the parent’s claim. See also Frank G. and Dianne G. 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 G., 2007 U.S. LEXIS 11520 (Oct. 15, 2007). The first prong of the Burlington-Carter test encompasses whether the student’s IEP provided a FAPE. Brock v. Dutton, 2015 U.S. Dist. LEXIS 44254, *14 (S.D.N.Y. March 31, 2015).

The Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007) (quoting Frank G. v. Bd. of Educ., 459 F.3d at 364-65). The private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.” Frank G. v. Bd. of Educ., 459 F.3d at 364.

The final prong of the Burlington-Carter test involves the balancing of the equities. 20 U.S.C. § 1412(a)(10)(C)(iii). Reimbursement may be limited or denied if the parent failed to act reasonably, did not cooperate with the DOE’s attempts to evaluate the student, or failed to provide proper notice of the parent’s rejection of the Student’s placement. See 20 U.S.C. § 1412(a)(10)(C)(iii). When considering whether the parent has shown that the equities weigh in the parent’s favor, it is important to consider “whether the [parent] cooperated with the district in its efforts to meet its obligations under the IDEA.” C.L v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014).

Burlington-Carter Test Prong One

As to Prong I of the Burlington-Carter test, the DOE failed to meet its burden at hearing. The Supreme Court has found a reviewing court may expect school district staff “to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S.Ct. 988, 1002 (2017). In this case, the DOE offered no documentary evidence or witness testimony and conceded that it failed to provide the Student with a free and appropriate public education for the 2022-2023 school year. (Tr. 7) It is clear from the records provided by the Parent that the DOE failed to meet its burden both procedurally and substantively. In this case, the DOE conceded that the DOE failed to meet Prong I of the Burlington-Carter test. In addition to not providing any witness or documentary evidence, the DOE stated they were not putting on a case and declined to make an opening or closing statement. Therefore, I cannot find that the DOE offered the Student a FAPE for the 2022-2023 school year.

Moreover, the weight of the evidence in this matter supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer the Student a FAPE for the 2022-2023 school year.

Burlington-Carter Test Prong Two: The Appropriateness of the Parent’s Unilateral Placement

A unilateral private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. The relevant standard to apply is whether “the unilateral private placement... provides educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo, 489 F.3d at 115 (quotations omitted). No single factor is dispositive in this analysis. Id. The private placement does not necessarily need to provide certified special education teachers or every special service that could assist in maximizing the Student’s potential. Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 2020 U.S. Dist. LEXIS 16007 (S.D.N.Y. 2020), aff’d 2020 U.S. App. LEXIS 39739 (2d Cir. 2020) (citation omitted). Moreover, parental placements are not subject to the same mainstreaming requirements as a school district placement. Frank G. v. Bd. of Educ., 459 F. 3d at 364.

The hearing record establishes that the Attending School is appropriately addressing the Student’s unique needs for the 2022-2023 school year. In this case, the Parents submitted significant information regarding the Attending School, its program, and the Student’s progress at the Attending School. (P-L; M; R; S) The Student’s program at the Attending School was specifically designed to meet the Student’s individualized needs in that the Student is provided with an individualized program supported by a Head Teacher, an Assistant Teacher and two para-professionals in a small student to teacher ratio in a positive classroom environment. The Student also receives speech-language therapy, occupational therapy, physical therapy, and weekly counseling. (P-S10)

The credible testimony of both the Assistant Head and the Parent support a finding that the Attending School is the appropriate placement for the Student. The Assistant Head testified that the Student has “benefitted from small group instruction and frequent check-ins” to ensure the Student understood the tasks. (P-S9) The Student had some “letter recognition and was working towards expanding her vocabulary and word recognition” (P-S9) The Student can now “verbalize what she wants to write down, but a teacher needs to scribe these ideas.” P-S9) The small student to teacher ratio at the Attending School makes this possible. In Math, the Student requires less prompting but “continues to require supports and modifications in order to complete math assignments.” (P-S9) The Student is also making progress in activities of daily living and socialization. The Assistant Head indicated the Student will at times engage in avoidant behavior if a task becomes too challenging, but the staff has been working with the Student to encourage her to self-advocate and ask for help instead of engaging in avoidance behavior. (P-S9) The Assistant Head further stated the Speech services are helping to address the Student’s communication breakdowns so that she can maintain appropriate dialogues and the counseling services are helping the Student with her social and emotional coping skills. (P-S9) The Assistant Head further described the Student’s continued need for occupational therapy which helps the Student develop multi-step sequencing skills, to identify writing errors, tracking and visual scanning. (P-S10) The Student has also progressed in physical therapy by negotiating stairs but still needs help in holding rails. (Tr. P-S10) In summary, the Assistant Head was able to identify the Student’s strengths and areas that the Student is working towards mastering with the support provided by the Attending School.

The Parent testified the Student has made friends for the first time since attending the Attending School. The Parent further testified that while the Student cannot read, she is able to tell stories with pictures and has increased her verbal ability which she did not have before. (Tr 23-24) The Parent described the Student as “over the moon” about the Attending School and is happier and better adjusted. The Parent testified the Attending School has provided the Student with one-to-one instruction that redirects and focuses the Student’s attention on her assets and tasks. The Student now feels that “she is on par with her peers” and “no longer feels she is inferior in any way.” (Tr.23)

A unilateral private school placement does not necessarily need to provide every special service that could assist in maximizing the Student’s potential. Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 2020 U.S. Dist. LEXIS 16007 (S.D.N.Y. 2020), aff’d 2020 U.S. App. LEXIS 39739 (2d Cir. 2020) (citation omitted). The test for a unilateral private placement “is that it is appropriate, and not that it is perfect.” T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 878 (2d Cir. 2016) (quoting C.L., 744 F.3d at 837); See also S.B. v. New York City Dep’t of Educ., 2022 U.S. Dist. LEXIS 158517, *17-18 (S.D.N.Y. Sept. 1, 2022).

I find that the Parents have met their burden to prove that the Attending School’s program offers an educational program that meets the Student’s needs under Prong Two of the Burlington-Carter standard. The weight of the evidence establishes that the Student’s individual special education needs are being addressed by the Attending School and that the instruction offered is “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364.

Burlington-Carter Test Prong Three: Equitable Factors

Equitable factors are relevant to fashioning relief under the IDEA. Burlington, 471 U.S. at 374; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 (2d Cir., 2014); M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000) (citations omitted); see also 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”). Reimbursement of private school tuition may be reduced or denied when parents fail to challenge 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 C.F.R. § 300.148(d); see S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 U.S. Dist. LEXIS 11354 (S.D.N.Y. Feb. 4, 2008); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 (S.D.N.Y. 2005).

The IDEA allows that 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 removing 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 [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 C.F.R. § 300.148(d)(1). This statutory requirement “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).

In this case, the DOE did not dispute that the Parents provided the CSE with a ten-day notice letter providing the CSE with notice of the Parents’ intent to enroll the Student at the Attending School for the 2022-2023 school year considering the DOE’s failure to locate an appropriate placement for the Student. (P-I) No evidence was submitted at hearing describing the DOE’s response to the ten-day letter. The Parent has also attended every IEP meeting conducted. (P-R)

By way of relief, the Parent seeks direct tuition funding for the Student’s 2022-2023 tuition at the Attending School.

Direct tuition funding is relief encompassed by the equitable remedial powers inherent in the IDEA. See, e.g., Mr. and Mrs. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011). The Parents submitted their enrollment contract with the Attending School. (P-K) The enrollment agreement states that the Parents “agree to pay” the Student’s tuition in the amount of $92, 287.50 for the Student’s 10-month program and Summer 1st Session. (P-K)

The record clearly establishes that the Parents incurred an obligation to pay the Attending School the aggregate tuition sum of $92, 287.50. Given my finding that the Attending School is the appropriate placement for the Student, the Student is entitled to an award for tuition funding for the Student’s attendance at the Attending School for the 2022-2023 school year, to be paid directly to the Attending School. See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453-54 (2d Cir. 2013) (“direct payment fits comfortably within the Burlington-Carter framework: like reimbursement, direct payment to the private school that provided the required educational program ‘merely requires [the school district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.’”) (quoting Burlington, 471 U.S. at 370-71).

While the amount of tuition at the Attending School is not insignificant, I do not find that the tuition costs are excessive or unreasonable, given the Attending School’s educational program for the Student. Carter, 510 U.S. 7, 15-16. After considering the entire record presented at hearing, I find that the equities support the Parents’ claim for direct funding.

OTHER RELIEF SOUGHT

Independent Educational Evaluations

It is clear from the records provided by the Parent that the DOE failed to meet its burden both procedurally and substantively.

In this case, it is particularly significant that not only did the DOE fail to conduct evaluations in advance of the Student’s January 20, 2022, IEP, the DOE conducted the last substantive evaluation of the Student in 2015, when the Student was in the 1st grade. (P-B, C, D, E, F) Under the IDEA, the DOE must reevaluate the Student every three years unless the Parent and the District agree that such an evaluation is unnecessary. See 20 U.S.C. § 1414(a)(2)(B)(ii); see also 34 C.F.R. § 300.303-300.311; 8 N.Y.C.R.R. § 200.4(b)(4) (in New York, any agreement to forego the triennial reevaluation must be documented in writing). There is no written document waiving the triennial evaluations in this case. Moreover, federal regulations also require “that a child with a disability must be evaluated before there is any significant change in the child’s placement.” Application of a Student with a Disability, Appeal No. 94-002 (Feb. 28, 1994) (citing 34 C.F.R. § 104.35(a)). It is disturbing that the DOE failed to evaluate the Student in seven (7) years. By repeatedly failing to re-evaluate the Student, the DOE failed to provide the Student with a FAPE. At the very least, the Student should have been evaluated before there was a significant change in the Student’s placement, specifically, when the Student went from elementary to middle school, and from middle school to high school. It is hard to imagine, the Student, who is currently in the 9th grade was not evaluated by the DOE since she was in the 1st grade. Additionally, the Parent requested that the CSE re-evaluate the Student in all the areas of suspected need and requested that independent educational evaluations be conducted by the CSE in their June 15, 2022, letter. (P-H)

The DOE’s failure to properly evaluate the Student was not the DOE’s only procedural failure in this matter. The CSE failed to conduct a vocational assessment of the Student who was over age 12 at the time of the January 20, 2022, IEP. See 8 N.Y.C.R.R. § 200.4(b)(6)(vii). The CSE also failed to recommend assistive technology which the Student had been using for five years. See 8 N.Y.C.R.R. § 200.4(d)(2)(b)(6). The Parent alleges the CSE team for the 2022-2023 IEP was improperly constituted, because it failed to include the Student’s related service providers. See 8 N.Y.C.R.R. § 200.3(c)(2). I note the regulation provides that the Parent could have invited the service providers to the IEP meeting as well. Therefore, I do not find this allegation deprived the Parent of a meaningful participation in the development of the Student’s IEP.

The Supreme Court has found that “a reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F., 137 S.Ct. at 1002. In this case, the DOE did not submit any evidence or testimony and conceded that it failed to provide the Student with a FAPE for the 2022-2023 school. Moreover, the record shows that the DOE failed to conduct the required triennial evaluations and in fact did not evaluate the Student since 2015. The DOE also conceded the Student required all the IEE’s listed in the DPC (Tr. 11)

The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.” See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.” Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015), citing Carter, 510 U.S. at 15-16). In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme, 790 F.3d at 454.

In this case, in addition to requesting tuition reimbursement for the Attending School addressed above, the Parent is requesting that I order the DOE to conduct the evaluations described below within 30 days of the final order. In the alternative, if the DOE fails to conduct the evaluations within 30 days, the Parent requests that I order the DOE to fund the following independent educational evaluations by independent evaluators of the Parent’s choosing:

Neuropsychological evaluation to be conducted by [REDACTED], New York State Licensed Psychologist, at a rate of $5,000.00;

Speech and Language evaluation to be conducted by a New York State Licensed Speech Pathologist at [REDACTED] Speech Services at a rate of $2,100.00;

Assistive Technology evaluation by a New York State Licensed Speech Pathologist at [REDACTED] at a rate of $2,500.00;

Occupational Therapy evaluation by the New York State Licensed Occupational Therapist at [REDACTED] at a rate of $2,000.00;

Physical Therapy evaluation by a New York State Licensed Physical Therapist at [REDACTED] at a rate of $2,000.00; and a Vocational Assessment by the New York State Licensed Occupational Therapist at [REDACTED] at a rate of $3,200.00.

ORDER

Based on the above Findings of Fact, Conclusions of Law, and Analysis, it is hereby:

• • ORDERED, that the DOE shall directly fund the Student’s tuition at the Attending School for the 2022-2023 school year in the amount of $92, 287.50, to be paid directly to the Attending School within 30 days of this Order; it is further
• • ORDERED, that the DOE shall reimburse the Parent for any payments made by the Parent for the Student’s tuition at the Attending School for the 2022-2023 to be paid directly to the Parent upon submission of such invoices within 30 days of this Order; it is further
• • ORDERED, that the DOE shall conduct a neuropsychological evaluation of the Student within 30 days of this Order, and if the DOE does not have an appropriately trained and licensed psychologist on staff and available, the DOE shall pay for a neuropsychological evaluation of the Student by a provider of the Parent’s choosing, at a cost not to exceed $5,000.00 with payment to be made directly to the provider within 30 days of receipt of an invoice; it is further
• • ORDERED, that the DOE shall conduct a speech and language evaluation of the Student within 30 days of this Order, and if the DOE does not have an appropriately trained and licensed speech and language pathologist on staff and available, the DOE shall pay for a speech and language evaluation of the Student by a provider of the Parent’s choosing, at a cost not to exceed $2,100 with payment to be made directly to the provider within 30 days of receipt of an invoice; it is further
• • ORDERED, that the DOE shall conduct an assistive technology evaluation of the Student within 30 days of this Order, and if the DOE does not have an appropriately trained and licensed speech Pathologist on staff and available, the DOE shall pay for an assistive technology evaluation of the Student by a provider of the Parent’s choosing, at a cost not to exceed $2,500.00 with payment to be made directly to the provider within 30 days of receipt of an invoice; it is further
• • ORDERED, that the DOE shall conduct an occupational therapy evaluation of the Student within 30 days of this Order, and if the DOE does not have an appropriately trained and licensed occupational therapist on staff and available, the DOE shall pay for an occupational therapy evaluation of the Student by a provider of the Parent’s choosing, at a cost not to exceed $2,000.00 with payment to be made directly to the provider within 30 days of receipt of an invoice; it is further
• • ORDERED, that the DOE shall conduct a physical therapy evaluation of the Student within 30 days of this Order, and if the DOE does not have an appropriately trained and licensed physical therapist on staff and available, the DOE shall pay for a physical therapy evaluation of the Student by a provider of the Parent’s choosing, at a cost not to exceed $2,000, with payment to be made directly to the provider within 30 days of receipt of an invoice; it is further
• • ORDERED, that the DOE shall conduct a vocational assessment of the Student within 30 days of this Order, and if the DOE does not have an appropriately trained and licensed occupational therapist on staff and available, the DOE shall pay for a vocational assessment of the Student by a provider of the Parent’s choosing, at a cost not to exceed $3,200.00 with payment to be made directly to the provider within 30 days of receipt of an invoice; it is further
• • ORDERED, that the CSE shall convene an IEP meeting within 30 (thirty) days after receiving all the finalized reports of the evaluations ordered above and the CSE team shall review and consider all of the evaluations ordered in 3-8 above.

SO ORDERED.

DATED: November 15, 2022

• • Mercedes Cesaratto (signed electronically)
• • Impartial Hearing Officer
• • Mercedes Cesaratto

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.

DISTRICT EVIDENCE

Exhibit

Title

Date

Pages

NONE

PARENT EVIDENCE

Exhibit

Title

Date

Pages

A Due Process Request 7/05/2022 7

B DOE Psychoeducational Evaluation 7/06/2015 5

C DOE Speech/Language Evaluation 11/24/2015 9

D DOE Physical Therapy Evaluation 11/25/2015 6

E DOE Occupational Therapy Evaluation 12/02/2015 9

F DOE Assistive Technology Evaluation 12/15/2015 17

G Prior Written Notice (PWN) 5/20/2022 6

H Letter to DOE Regarding the Parents’ Reevaluation and Independent Educational Evaluation Request with Emails and Delivery Receipts 6/15/2022 8

I Parent Notice Letter with Delivery Receipts and DOE Automated Response 6/16/2022 6

J Prior Written Notice (PWN) 6/23/2022 8

K [REDACTED] School Enrollment Contract 5/23/2022 2

L [REDACTED] Progress Report 2021-2022 6/17/2022 28

M [REDACTED] School Invoice 6/30/2022 1

N [REDACTED] Program Description undated 6

O [REDACTED] Services Rate Sheet undated 1

P [REDACTED] Rate Sheet 5/05/2022 2

Q Emails Between the Parent and the DOE School Psychologist Regarding the Parent Obtaining a Copy of the January 2022 IEP 3/01/2022 2

R [REDACTED]Affidavit 9/27/2022 4

S [REDACTED]Affidavit 9/28/2022 12 IHO EVIDENCE Exhibit

Title

Date

Pages

NONE

APPENDIX

Footnotes

[1] The Parent’s exhibits will be cited as “P” followed by a letter, the DOE’s exhibits, the hearing transcript will be cited as “Tr.” followed by a page number.