New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 575998 - NYC: 228710

FINDINGS OF FACT AND DECISION

Case Number: 228710

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 08/15/2022

09/16/2022

09/29/2022

10/06/2022

Actual Record Close Date: 10/16/2022

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/15/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 09/16/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

[REDACTED], Parent

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

NAMES AND TITLES OF PERSONS WHO APPEARED ON 09/2916/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

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

NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/06/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

[REDACTED], Parent

[REDACTED], Program Director, [REDACTED]

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

DOCUMENTS ENTERED INTO THE RECORD

PARENT DOCUMENTS

Ex Document Date Page(s) Entered

A Ten Day Notice 06/17/2022 7 09/16/2022

B Due Process Complaint 07/05/2022 8 09/16/2022

C Enrollment Contract 06/08/2022 9 09/16/2022

D Tuition Affidavit 09/09/2022 1 09/16/2022

E Affidavit of School Program Director 09/09/2022 7 09/16/2022

F Parent’s Tax Return Tax Year 2021 2021 2 09/16/2022

G Affidavit of Parent 09/08/2022 1 09/16/2022

H Attendance Record August 2022 1 09/16/2022

I Individual Schedule Summer 2022 1 09/16/2022

J Learning Plan 2022-2023 2022-2023 1 09/16/2022

HEARING OFFICER DOCUMENTS

Entered 08/15/2022

I Notice of appointment, 07/21/2022, 4 pages

II Notice of Appearance, 07/25/2022, 1 page

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 08/15/2022, 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.

It is noted that the DPC was originally entered as Exhibit A, but later entered as Exhibit B.

Due Process Complaint (DPC) alleges a failure of the DOE to offer the Student a Free Appropriate Public Education (FAPE) for the 2022-2023 school year. Parent alleges, in part, that though an Individualized Education Plan (IEP) meeting was held, in March of 2022, the Parent has not received an IEP. (Ex A 1)

Parent seeks a variety of forms of relief to remedy the alleged failure, including, funding for unilateral placement (UP), at the [REDACTED] (UP), for a 12 month school year; with transportation, and an independent educational evaluation (IEE). (Ex A 8)

THE POSITION OF EACH PARTY

Hearing commenced on 08/15/2022, to allow the DOE an opportunity to present a defense to the allegations contained in the DPC. The DOE did not appear.

At Hearing, of 09/16/2022, the DOE Representative advised the IHO that he indeed was at the Hearing, via teleconference, but the system did not admit him into the Hearing room. (T 19-20)

The DOE Representative stated on the record that the mater was still being reviewed, and may have a defense to put forth regarding the DPOC allegations, and a related offer of FAPE (T 23-24)

The DOE contends it will establish the Parent did indeed receive a copy of the subject IEP. (T 30-31)

A date was set for the DOE to respond to the allegations contained in the DPC, of 09/29/2022. (T 40)

At Hearing, of 09/29/2022, the DOE Representative advised the IHO that it would not be presenting a Case. (T 46)

The matter then continued, and concluded, on 10/06/2022.

The DOE argues that the Parent is not successful in establishing that the UP provides the Student a sufficiently individualized instruction for the Student. (T 70-71)

As evidenced below the UP indeed provides individualized instruction and services designed to meet the unique needs of the Student.

Regarding the requested Student evaluation, the DOE argues that demanding the evaluation is not sufficient reason for the Student to be evaluated, since a DOE evaluation must first be objected to. (T 71-73)

This argument fails for several reasons, detailed below. Notably, the Parent has the right to request an evaluation and the DOE is obligated to respond. In this instance there is no evidence the Student has ever been evaluated. The DOE lack of response to a Parent concern is not evidence that the evaluation is not needed to determine the Student’s unique special education needs.

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

Documentary Evidence, and Testimony, presented, by the Parent, is found to be credible and supportive of the Parent case, as considered below.

[REDACTED], Parent

Witness provided Testimony that included: an inability to pay the UP Tuition and await reimbursement (T 57-58); and first contacting the DOE regarding Student evaluations since the Student was “probably five”. (T 59-60)

[REDACTED], Program Director, [REDACTED]

Witness provided Testimony that included:

• • The Up develops an educational plan for the Student (T 67);
• • Each department at the UP has a supervises, including speech and language pathology, physical therapy and occupational therapy (T 69); and
• • “So in supervision, they meet individually with the supervisee. They meet weekly as a group as well as they observe the therapists in session. So all of the -- all of the therapists are licensed and certified as are all of the supervisors, but we still have a level of supervision to oversee each of our therapists.” (T 69)

A Ten Day Notice 06/17/2022

Reviews Student special education characteristics (Ex A 1); reviews Student educational history, including attendance at the UP since the 20-21 school year (Ex A 2); alleges a failure to offer the Student a Free Appropriate Public Education (FAPE) for the 22-23 school year for reasons which include a failure to evaluate the Student and a failure to provide an IEP and placement for the 22-23 school year (Ex A 3-6); advises of continued placement, of the Student, at the UP, and intent of Parent to seek District funding and Independent Educational Evaluations (“IEEs”) including a Central Auditory Processing evaluation; a Neuropsychological evaluation; and an Assistive Technology evaluation.. (Ex A 6-7)

B Due Process Complaint 07/05/2022

Reviews Student special education characteristics (Ex B 1); reviews Student educational history, including attendance at the UP since the 20-21 school year (Ex B 2-3); alleges a failure to offer the Student a Free Appropriate Public Education (FAPE) for the 22-23 school year for reasons which include a failure to evaluate the Student and a failure to provide an IEP and placement for the 22-23 school year (Ex B 3-6); and seeks relief that includes:

• • Prospective funding of tuition and related services, and fees pertaining to the cost of the Student’s enrollment at the UP, beginning July 5, 2022 of the 2022-2023 school year,
• • including immediate reimbursement for any and all monies already paid by the Parent with interest incurred;
• • Implementation of roundtrip, door-to-door specialized transportation, with all current IEP bus accommodations maintained, arranged by the Department between the Student’s home and the UP; and
• • IEEs including a Central Auditory Processing evaluation; a Neuropsychological evaluation; and an Assistive Technology evaluation at reasonable market rates by providers of the Parent’s choosing. (Ex B 7)

Student is described as age [REDACTED], and diagnosed with Autism Spectrum Disorder, REDACTED, and mild hearing loss in both ears, and that she benefits from the use of a frequency modulation (FM) system and other assistive technology within the classroom, which are offered at the UP. (Ex A 1)

Parent DPC details the Student services, at the UP, and perceived benefits of the UP program: where she has attended since the 2020-2021 school year with the “support of a one-to-one paraprofessional. The Student receives instruction in a 2:1 ratio of instructors to students utilizing the Developmental Individual Difference Relationship-based Floortime (DIR Floortime) model. Her daily curriculum consists of community studies, sensory activities, Floortime sessions, group music facilitated by a music therapist, cooking group led by a speech-language pathologist, and adaptive physical education, in addition to reading and math. The Student’s reading instruction focuses on functional literacy. In addition to occupational therapy and physical therapy, the Student receives tactile-kinesthetic speech therapy and articulation instruction via the PROMPT (Prompts for Restructuring Oral Muscular Phonetic Targets) method. The Student has begun to develop relationships with her instructors, which has resulted in longer periods of regulation across environments during her school day. The Student has learned to initiate sensory activities herself and maintain interaction for up to 10 repetitive circles. She works on effectively utilizing visuals to communicate her wants and needs. Overall, the Student has improved in her ability to initiate and maintain joint attention during preferred sensory-based learning activities.” (Ex A 2)

C Enrollment Contract 06/08/2022

UP 22-23 Student Tuition is set forth as $[REDACTED]. (Ex C 1)

Parent is obligated to payment via signature upon the Contract. (Ex C 4, 8-9)

Student paraprofessional cost is set forth as $[REDACTED], unless provided by the DOE. (Ex C 7-9)

D Tuition Affidavit 09/09/2022

Student 22-23 Total UP Tuition set forth as $[REDACTED].

Payment of $[REDACTED] has been made, by the Parent.

Present Tuition balance is $[REDACTED].

E Affidavit of School Program Director 09/09/2022

Testimony includes:

• • Witness qualifications and role at the UP (Ex E 1-2);
• • General characteristics of the UP, such as::
• • School for children with neurodevelopmental delays and relating and communicating, which includes those on the Autism spectrum
• • Use of a developmental model called DIRFloortime
• • Small school with 151 students and 18 classrooms
• • Typical classrooms have eight students, one head teacher, and three assistant teachers
• • Related services of occupational therapy, speech and language therapy, physical therapy, and counseling

(Ex E 2)

• • UP communicates with student families regularly;
• • UP follows the Common Core standards;
• • UP individualizes each program for students (Ex E 3);
• • Review of teacher qualifications;
• • Teachers are assigned an educational supervisor;
• • A review of the UP admission process (Ex E 4);
• • Students are assessed;
• • Student is in a 22-23 classroom with 7 other students, a head teacher, 3 teaching assistants, and two paraprofessionals. One paraprofessional is assigned to the Student;
• • Witness reviews Student staff;
• • Student program and supports include:
• • Individualized weekly program
• • DIRFloortime sessions
• • Morning meeting
• • Reading program which is multisensory, movement based and thinking based, which focuses on symbol recognition and overall regulation
• • Math program where Student works on core concepts of math, number sense and 1:1 correspondence
• • Science
• • Sensory activities
• • 1:1 support to remain regulated and engaged in semie-structured activities

(Ex E 5)

• • Related service providers provide session notes after each session and create progress reports
• • Related service provider credentials
• • Speech language therapy, three times weekly for 30 minute session, two are individual and one group session, where Student works on improving expressive and receptive language skills; Student communicates via American Sign Language, vocalizations, gestures and word approximations, and participates in an oral-motor protocol that addresses safety in eating and movement and coordination of her articulators (Ex E 6)
• • Witness believes the UP provides the Student with an appropriate program, for the 22-23 school year. (Ex E 6)

F Parent’s Tax Return Tax Year 2021 2021

Parent adjusted gross income is set forth as $[REDACTED], for the 2021 calendar year

G Affidavit of Parent 09/08/2022

Student’s Parent provides Testimony that includes:

• • Review of Student diagnosis: Autism Spectrum Disorder, REDACTED, and mild hearing loss in both ears;
• • Student attendance at the UP since the 20-21 school year;
• • Noted progress while at the UP: “I have seen progress in her ability to make meaningful vocalizations, which she was not doing before she started attending the [UP]. She is improving academically. Now [Student] can recognize her name if you give her two or three choices. Behaviorally, [Student] has improved. For example, she doesn’t scratch and grab as frequently as she did when she first started attending the [UP]. She also doesn’t drop to the floor as often as she used to. And socially, [Student] seems to understand the concept of having different relationships with different people. For example, she knows which activities she should do with a teacher” (Ex G 1);
• • Participating in an IEP meeting in spring of 2022, though an IEP was never received;
• • A school placement letter was not received relative to the Spring 2022 IEP meeting;
• • Parent retained a lawyer and re-enrolled Student at the UP;
• • Parent and husband signed the UP Tuition Contract, for the 22-23, 12 month school year;
• • Parent income is about $[REDACTED] yearly, and thy have four children;
• • Student received related services at the UP, including, speech, occupational therapy and physical therapy, and Student classroom has a 2:1 ratio of students to teachers, “so I am certain that [Student] is safe and getting enough attention to make progress academically, behaviorally, and socially.” (Ex G 2); and
• • Parent seeks: “reimbursement of my tuition deposit and the balance of the 12-month tuition paid directly to the [UP]; continued specialized busing; independent educational evaluations—a Central Auditory Processing evaluation because of the hearing loss condition; an independent neuropsychological evaluation to help the DOE recommend an appropriate IEP for the upcoming school year; and an independent assistive technology evaluation to assist [Student] with functional communication until she is able to speak verbally.” (Ex G 2)

H Attendance Record August 2022

Student is evidenced to have attended the UP for the summer program of the 22-23 school year.

I Individual Schedule Summer 2022

Student 22-23 schedule, inclusive of related services.

J Learning Plan 2022-2023 2022-2023

UP provides Learning Plan detailed for Students required to quarantine.

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 2022-2023 School Year

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

The DOE has evidenced neither the development of an appropriate IEP, nor Student placement, for the commencement of the 2022-2023 school year.

DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 22-23 school year.

I find the DOE failed to offer the Student a FAPE for the 22-23 school year.

UP Placement for the 22-23 School Year

Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 22-23 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 A, B, E, G & I and T 67 & 69)

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 22-23 school year.

TUITION FUNDING 22-23 School Year

Parent is entitled to funding for the UP, 22-23, Tuition.

The DOE has denied a FAPE to the Student for the 22-23 school year.

Parent provided appropriate Ten Day Notice. (Ex A)

UP 22-23 Student Tuition is set forth as $[REDACTED], plus additional cost of a paraprofessional, of $[REDACTED]. (Ex C 1 & 7)

Parent is obligated to payment via signature upon the Contract. (Ex C 4, 8-9)

Student 22-23 Total UP Tuition, in total, is set forth as $[REDACTED]. (Ex D)

Payment of $[REDACTED] has been made, by the Parent. (Ex D)

Present Tuition balance is $[REDACTED]. (Ex D)

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. (Ex A, B & G)

Parent provides evidence, and Testimony, relative to their financial inability to pay the UP Tuition directly, and await reimbursement. (Ex F & G and T 57-58)

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 evidenced an inability to fund the UP Tuition directly and await reimbursement.

I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE, for the 22-23 school year.

I find the Parent is entitled to direct tuition funding for the balance of the Student’s UP Tuition, for the 22-23 school year, as Ordered below.

TRANSPORTATION

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). In addition, State law defines special education as "specially designed instruction... and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]).

Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 16035). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]).

Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

The Parent details Student diagnosis and need for a 1:1 paraprofessional. Evidence is clear that the Student requires special education transportation. (Ex G 1 & E 5)

Student is found to be entitled to special education transportation services, as Ordered below.

INDEPENDENT EDUCATIONAL EVALUATIONS

The IDEA provides parents with a number of procedural safeguards. Among them is the "right... to obtain an independent educational evaluation of the child," which in turn means "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question" (34 CFR 300.502[a][1], [3][i]).

Parents who express a disagreement with an evaluation conducted by the district also have the right to seek an IEE conducted at public expense in some circumstances (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; see also Lauren W. v. DeFlaminis, 480 F.3d 259, 275 [3d Cir. 2007] [explaining that parents do not have the right to an IEE at public expense where parents actually agreed with the school's evaluation]; Edie F. v. River Falls Sch. Dist., 243 F.3d 329, 335 [7th Cir. 2001] [explaining that parents do not have the right to an IEE at public expense where their disagreement was with the result of the child's IEP not with a particular diagnosis or methodology of evaluation]; M.C. v. Katonah/Lewisboro Union Free Sch. Dist., 2012 WL 834350, at *11–12 [S.D.N.Y. Mar. 5, 2012]; M.V. v. Shenendehowa Cent. Sch. Dist., 2013 WL 936438, at *6 [N.D.N.Y. Mar. 8, 2013]; R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense that was sought for additional information]). "If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the results of the evaluation [m]ust be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child" (34 CFR 300.502[c])

If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv]). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although the district will not be required to provide it at public expense (34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]; see A.H. v. Colonial Sch. Dist., 2019 WL 3021232, at *3 [3d Cir. July 10, 2019]). Additionally, both federal and State regulations provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]). The time period for asserting claims based upon a disagreement with a school district's evaluation can be shorter than the mandatory three-year reevaluation period in some cases (see D.S., 357 F. Supp. 3d at 179).

An IEE must use the same criteria as the public agency's criteria (Seth B. v. Orleans Par. Sch. Bd., 810 F.3d 961, 973–79 [5th Cir. 2016]). Informal guidance from the United States Department of Education's Office of Special Education Programs (OSEP) indicates that if a parent disagrees with an evaluation because a child was not assessed in a particular area, the parent has the right to request an IEE to assess the child in that area (Letter to Baus, 65 IDELR 81 [OSEP 2015]), however recent caselaw clarifies that parents may not demand a comprehensive IEE at public expense while at the same time refusing to consent to the school district's offer to conduct the same assessments (D.S. v. Trumbull Bd. of Educ., 357 F. Supp. 3d 166, 178 [D. Conn. 2019], citing N.D.S. v. Acad. for Sci. & Agric. Charter Sch., 2018 WL 6201725, at *5–*7 [D. Minn. 2018] [explaining that where parents request an IEE to challenge an obsolete evaluation, they are entitled to a due process hearing limited only to whether the evaluation was appropriate at the time it was completed; if parents wish for a publicly funded IEE with respect to their child's current condition, then they must allow the school district to conduct a current reevaluation and then request an IEE if they disagree]).

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). In accordance with this burden, the district bears the burden of showing that its evaluation of the student was appropriate in order to prevail in its challenge to the parents' requests for IEEs at public expense

Additionally, an IHO is vested with the authority to direct that a student be evaluated at district expense (34 CFR 300.502[d]; 8 NYCRR 200.5[g][2]; [j][3][viii]). IHOs are "granted broad authority in their handling of the hearing process and to determine the type of relief which is appropriate considering the equitable factors present and those which will effectuate the purposes underlying IDEA" (Warren Consolidated Schs., 106 LRP 70659 [LEA MI 2000]).

A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]).

A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]).

An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018).

Under 200.5 (g) of the New York regulations and 34 CFR § 300.502 (b) (1) of the federal regulations, if a Parent disagrees with a district’s evaluation or re-evaluation of her child, she has the right to request an IEE at public expense. Upon Parent IEE request the public agency must, without unnecessary delay, either:

(i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or

(ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§ 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria. 34 CFR 300.502(b)(2). 8 NYCRR § 200.5 (g)

A school has the right in the first instance to obtain a comprehensive evaluation upon which to structure a student's IEP, and only if the child's parents believe that the evaluation is insufficient can they seek an IEE at public expense for the school's additional consideration. The publicly funded IEE protects parents' ability to contribute and have their voices heard; but this right arises in response to school action, it does not preempt it. Nor does it give parents the first and final word. The school, as a beneficiary of federal funds, has the right and obligation to conduct an evaluation in the first instance and to prove that its evaluation was appropriate. Only when those established procedures fall short does a parent get an IEE at public expense. See Schaffer, 546 U.S. at 60-61.

This matter differs from the more common request for an IEE related to an objection of an DOE evaluation. Presently, Parent seeks several IEEs. (Ex B 7)

In this instance the Student has several diagnosis, and a variety of special education needs, and related services, are being delivered to meet those needs.

Student’s parent requested a reevaluation, as per 34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]. (Ex A & B)

In this matter there is no evidence of any evaluation being completed for the Student.

There is also no evidence of any appropriate IEP being assembled, despite a meeting which took place in spring of 2022. (Ex G 2)

No evidence is presented to explain the lack of production of a Student IEP.

No evidence is presented that the DOE has sufficient evaluative material upon which to base the development of an appropriate Student IEP.

In this case the DOE has failed to offer a FAPE, for the 22-23 school year.

The DOE has failed to evidence any response to the Parent request for evaluations.

The DOE has failed to evidence any evaluation has ever been conducted for the Student.

The District does have the right in the first instance to obtain a comprehensive evaluation upon which to structure a student's IEP. In this case the DOE has taken no action to evaluate the Student or assemble an appropriate IEP.

The DOE appears to contend that ignoring the Parent request and the Student right to a FAPE is somehow a basis for denying the Student an evaluation. The logical extension of this is that the DOE feels justified in denying the Student a FAPE as long as it ignores the Parent request for an evaluation.

Parent raises concerns about Student’s special education needs. (Ex A & B)

Parent evidence is uncontroverted that the Student is diagnosed with Autism Spectrum Disorder, REDACTED, and mild hearing loss in both ears. (Ex A 1)

The District bears the burden of showing that its evaluation of the student was appropriate in order to prevail in its challenge to the parents' requests for IEEs at public expense The DOE presents no evidence whatsoever of any appropriate evaluation being completed.

Considering the diagnosis of the Student, the established special education challenges and supports, and the lack of DOE action to evaluate the Student, it is appropriate to Order the requested evaluations of the Student, which include a:

• • Central Auditory Processing evaluation;
• • Neuropsychological evaluation; and
• • an Assistive Technology evaluation.

ORDER

• • The Department of Education (DOE) failed to offer the Student a FAPE for the 2022-2023 school year.
• • The DOE shall fund Student [REDACTED] [UP] Tuition, for the 22-23 school year, up to the amount of $[REDACTED] via:
• • Reimbursement to Parent: $[REDACTED]
• • Direct Funding to the [REDACTED]: $[REDACTED]
• • The DOE shall provide the Student with special education transportation for the 22-23 school year, to and from, the [REDACTED] [UP].
• • The DOE shall fund the following Student independent education evaluations:
• • Central Auditory Processing evaluation;
• • Neuropsychological evaluation; and
• • Assistive Technology evaluation
• • The DOE shall provide Parent with any documents necessary to facilitate this Order within ten days of the date of this Order.
• • 6. This decision is subject to appeal and review by the State Review Officer.

DATED: October 17, 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.