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NEW YORK STATE EDUCATION DEPARTMENT
IMPARTIAL DUE PROCESS HEARING
Case Cover Sheet
IHRS or NYC Case No.: 228733
School District: [Redacted]
Impartial Hearing Officer: Patricia L. Murrell, Esq., IHO
Request/Complaint Date: July 7, 2022
Date of Appointment: July 13, 2022
Filed/Date of Decision: June 2, 2024
NEW YORK STATE EDUCATION DEPARTMENT
IMPARTIAL DUE PROCESS HEARING
STUDENT, a minor, by and through Case No. 228733
his/her Parent(s),
[REDACTED] and
[REDACTED]
Petitioners,
Patricia L. Murrell, Hearing Officer
- against -
New York City Department of Education
School District # [Redacted] FINDINGS OF FACT AND
DECISION
Respondent.
I. INTRODUCTION[1]
This matter comes before the undersigned Impartial Hearing Officer (“Hearing Officer” or “IHO”), pursuant to the impartial hearing request and demand for due process (the “Complaint”) filed on July 7, 2022, by the petitioner, [Redacted] and [Redacted], the parents (“Petitioners” or “Parents) of [Redacted], currently an [Redacted]-year-old student with a disability (“Student”), as against the New York City Department of Education (“NYC-DOE”), Committee of Special Education (“CSE”) [Redacted], District [Redacted] (“Respondent” or “District”, together with the Petitioner or Parent, the “Parties”).
On July 18, 2022, this Hearing Officer was appointed to preside over Case No. 228733. A Prehearing Conference (“PHC”) was held on August 18, 2022, during which it was confirmed that the primary issues alleged and relief requested and presented for determination, as detailed in the Complaint, included, inter alia , a denial of free appropriate public education (“FAPE”), based on the District’s failure to (i) develop an appropriate individualized education program (“IEP”); and (ii) recommend an educational placement for the 2022/2023 school year. Status conferences were held on September 13, 2022, October 13, 2022, November 22, 2022, January 5, 2023, February 8, 2023, March 14, 2023 and April 18, 2023, during which the Parties reported that the matter had been referred for settlement and an offer extended; however, on May 26, 2023, the Parent advised that the settlement would not be accepted and requested the scheduling of a due process hearing (“Hearing”).
II. JURISDICTION
The Findings of Fact and Decision (“Decision”) in this matter is being rendered in accordance with the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et. seq . (“IDEA”); the Federal Regulations implementing IDEA, 34 C.F.R. 300.1 et seq .; Codes, Rules and Regulations of the State of New York, 8 NYCRR § Part 200; New York State Education Law, and its implementing Regulations, Educ. Law Art. 89 § 4404, et. seq.
III. BACKGROUND
This Hearing Officer commenced the Hearing telephonically and via videoconference on June 6, 2023, during which the Respondent’s Attorney, [Redacted], Esq., proffered the District’s exhibit (“1”) into evidence, subject to an objection that was overruled; and the Petitioner’s Attorney, [Redacted], Esq., proffered the Parents’ exhibits (“A through V”) for submission into evidence, with limited objection as to exhibit “G”, which was overruled. In addition, the Parties proffered their opening statements on the record (“Hearing Record”). The Respondent did not present witness testimony. The Petitioners presented testimony by the Parent, [Redacted]; Psychiatrist [Redacted], M.D. (“Psychiatrist”); and [Redacted], the Head of School (“Head of School”) at The [Redacted] School (“Private School”). Each of the witnesses attested that the testimony provided during the Hearing was true and correct; and only the Head of School was subjected to cross-examination. Pursuant to directive, the ‘Statement of Undisputed Facts’ [2] and ‘Statement of Issues to be Adjudicated’ [3], were submitted on June 5, 2023 and June 6, 2023, respectively. The Hearing continued on June 21, 2023 and on June 22, 203, during which the Parties waived presentment of an oral closing statement, and the Hearing was concluded. The Hearing Transcript(s) were circulated to the Parties on June 7, 2023, June 23, 2023, and June 16, 2023. The Petitioners exchanged and submitted a PostHearing/Closing Brief on July 20, 2023.[4] Despite directive, the Respondent did not submit a Closing Brief. The Record was Closed on May 19, 2024.
IV. ISSUES PRESENTED
This Hearing Officer certified the following issue(s) for adjudication at the Hearing:
A. Whether the District denied the Student a FAPE for the 2022/2023 school year.
B. Whether equities favor District funding of the Student’s tuition at the Private School.
V. FINDINGS OF FACT
After considering all the evidence in the Hearing Record, as well as the arguments asserted, this Hearing Officer’s Findings of Fact are as follows:
1. The Student was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), Oppositional Defiant Disorder (“ODD”), and Autism Spectrum Disorder (“ASD”) (together, the “Diagnoses”); and classified as a child with Emotional Disturbance. [5]
2. The Parties’ Joint Statement of Undisputed Facts, together with all supporting documentary and testimonial evidence proffered by the Parties into the Hearing Record, have been fully reviewed, are hereby incorporated by reference into the ‘Findings of Facts’, and will not be restated herein, regarding the Student’s educational development, evaluations, and/or recommendations, except where further elucidation is necessitated.
3. On January 11, 2022, the District convened a CSE meeting (“2022 CSE Meeting”), which was attended telephonically by the Parents; Special Education Teacher [Redacted]; Head of School [Redacted]; Private School Academic Coordinators [Redacted], [Redacted] and [Redacted]; and [Redacted] who participated in a dual-capacity as the District Representative and School Psychologist (together, the “2022 CSE Team”).
During the 2022 CSE Meeting, an IEP was developed with an implementation date of January 25, 2022 (“2022 IEP”); which recommended a twelve-month 8:1+1 Special Class program (35/wk.), in a D-75 NYC DOE Specialized School; together with related services and accommodations that included 1:1 Counseling (5x30), 1:1 Occupational Therapy (“OT”) (2x30), full-time 1:1 Paraprofessional for Behavioral Support, Parent Counseling and Training (“PCAT”) (:60/month), and Special Transportation for the Student to and from special classes or programs at another site from the closest safe curb location, due to safety concerns (“Transportation”).[6] Notably, the Hearing Record does not evince that either a prior written notice (“PWN”) and/or a school location letter (“SLL”) identifying the name of the ‘Recommended School’ was issued by the District or received by the Parent, prior to commencement of the 2022/2023 school year.
4. On January 16, 2022, the Parent submitted a ten-day-notice (“TDN”) to the District, which advised, inter alia , that neither a SLL nor placement recommendation had been received for the 2022/2023 school year; and therefore, the Parent would be seeking reimbursement and/or funding for the Student’s placement in the Private School. On January 16, 2022, the District acknowledged receipt of the TDN. [7]
5. On April 2, 2022, the enrollment contract for the Student’s attendance at the Private School for the 2022/2023 school year was fully executed (“Enrollment Contract”), which set forth, inter alia , tuition at a cost of one-hundred-fifty-eight-thousand ($158,000.00) dollars (“Tuition”); together with an addendum of additional terms for the Extended School Day (“ESD”) Services program, which included à la carte pricing to facilitate the Student’s executive functioning, academics, social skills, independence in activities of daily living (“ADL”), improved functional life skills, fine and gross motor development. [8]
6. The Private School Program Description indicates that it adheres to the New York State (“NYS”) Common Core, and its NYS certified and licensed providers offer an academic curriculum to students in small groups, dyads and/or 1:1 instruction based on learning style and needs. [9]
7. The Private School issued an undated Extended Day Program Description and Progress Report for the 2022/2023 school year (“ESD Report”), which indicated that the Student would learn, inter alia , self-regulation, self-esteem, executive function skills, safety awareness, active listening, auditory processing, motor planning, creativity, empathy, acceptance, strength and endurance; develop intellectual confidence, problem-solving, critical and computational thinking skills; and would improve her focus, self-confidence, frustration tolerance, ADLs, collaboration and socialization skills. The ESD Report noted that, to date, we are unable to provide objective progress. [10]
8. On May 24, 2022, Psychiatrist [Redacted], MD completed the Request for Medical Accommodations form (“May 2022 Transportation Accommodations”), which was thereafter submitted by the Parent on June 12, 2022 to [Redacted] at the NYC-DOE, together with a Health Insurance Portability and Accountability Act (“HIPPA”) form. In pertinent part and in response to questions requesting a basis for the Student’s need for specialized transportation, Dr. [Redacted] determined that the Student has severe mood symptoms affecting her ability to be on the bus for extended periods of time during long trips to school, as well as when there is no adequate climate control, which leads to episodes of aggression and dysregulation that pose a risk to self. Thereafter, Dr. [Redacted] recommended that the Student required 52-weeks of door-to-door transportation, with adult supervision - 1:1 Private School Special Ed. Teacher or behavior therapist; limited travel time, route with fewer students, and climate control. [11]
9. On September 22, 2022, the Parent submitted a HIPAA form together with the ‘September 2022 Transportation Accommodations’ form to [Redacted] at the NYCDOE, which was completed by the Psychiatrist [Redacted] and advised in pertinent part that the Student required 52-weeks of specialized transportation, door-to-door, with adult supervision - 1:1 Private School Special Ed. Teacher or behavior therapist, limited travel time, route with fewer students, and climate control; on the basis that the Student has severe emotional outbursts and impulsivity with an inability to engage academically when dysregulated, affecting her ability to spend extended periods of time on the bus, which can lead to accidents. [12]
10. On October 5, 2022, the District executed the ‘Pendency Implementation Form’, which was based on the unappealed findings of fact and decision, dated September 29, 20219, under Case No. 184427 (“FOFD”), pursuant to which the ‘Pendency Program’ consisted of the District’s direct payment or reimbursement for the Student’s 12-month extendedschool-year (“ESY”) placement at the Private School, with the addition of 1:1 behavioral support; daily roundtrip transportation on a small bus with air-conditioning (“AC”) and travel time not to exceed (sixty) 60 minutes; together with 1:1 transportation support personnel from the Private School to accompany the Student (“Transportation Aide”). [13]
11. On March 15, 2023, the Head of the Private School duly-executed an Affidavit (“Tuition Affidavit”) confirming that the Student’s Tuition for attendance thereat during the period between July 6, 2022 through and including June 24, 2023, was one-hundred-fifty-eight-thousand ($158,000.00) dollars; the total amount of which had been fully satisfied by the payments remitted by the Parents during the 2022/2023 school year. [14]
12. In May 2023, the Head of the Private School submitted an unnotarized “Services Affidavit” with supporting invoices, which indicated that during the 2022/2023 school year the Private School provided the Student with 1:1 Transportation Aide Services (10/wk.), at an hourly rate of two-hundred-fifteen ($215.00) dollars, aggregating an estimated cost of eighty-two-thousand-seven-hundred-seventy-four ($82,774.50) dollars and fifty-cents; together with 1:1 Extended Day Programming Services (5/wk.), at an hourly rate of one-hundred-fifty-five ($155.00) dollars, aggregating an estimated cost of twenty-six-thousand-four-hundred-twenty-seven ($26,427.00) dollars. [15]
13. On June 27, 2023, [Redacted] duly-executed an Affidavit affirming that during the period between November 2, 2022 through June 15, 2023, the Parents incurred Transportation costs of three-thousand-three-hundred-ten ($3,310.77) dollars and seventy-seven-cents for Uber and Lyft car services utilized by a 1:1 Transportation Aide to accompany, supervise and maintain the Student’s safety during her daily roundtrips to and from the Private School. In addition, the Parents paid six-hundred-thirty ($630.00) dollars for swimming to further supplement the Student’s ESD program. [16]
14. The Petitioners proffered [Redacted], the Student’s Psychiatrist as a witness, who is Certified by the American Board of Psychiatry in Neurology, General Psychiatry and Adolescent Psychiatry, and holds a NYS License as a Medical Doctor. The Psychiatrist confirmed the Student’s Diagnoses; treatment provided; and the basis for 1:1 Transportation Aide, which was due to her dysregulation and maladaptive behaviors. [17]
15. The Petitioners proffered [Redacted], the Head of the Private School as a witness, who holds a Master’s in Early Childhood Education; Master’s in Special Education, with a Certificate of Advanced Study in ASD; and NYS License(s) as a Certified Teacher in General Education and Students with Disabilities (B-2).
16. The Head of the Private School provided testimony confirming, inter alia , the Program Description; professional qualifications and development of the Teachers and Staff, student-to-teacher ratio; mission of the Private School to provide a transdisciplinary team approach to helping students overcome obstacles and achieve a level of independence; and the methods employed to monitor the student academically, socially and behaviorally. The Head of the Private School further testified regarding the results of the Student’s Functional Behavioral Assessment (“FBA”); development and integration of her Behavioral Intervention Plan (“BIP”); the Student’s ongoing need for an ESY and ESD; benefits derived from her related services of OT and Counseling, including improved executive functioning, auditory, regulatory and comprehension; in addition to the Student’s academic, social-emotional and behavioral progress achieved during the 2022/2023 school year, which were demonstrated by improvements in her Writing, Math, Reading, and decreases in her self-injurious and challenging behaviors. [18]
17. Subsequent to the District’s cross-examination, and in accordance with the directive of this Hearing Officer, on July 12, 2023, the Head of the Private School proffered an Accounting Statement of ESD and Transportation Billing for the 2022/2023 school year, which indicates that the Student was provided with a total of one-hundred-sixty (162) hours of 1:1 ESD Services, at an hourly rate of one-hundred-fifty-five ($155.00) dollars, aggregating an actualized cost of twenty-five-thousand-one-hundred-ten ($25,110.00) dollars; and a total of three-hundred-fifty-two-and-a-half (352.5) hours of 1:1 Transportation Aide Services, at an hourly rate of two-hundred-fifteen ($215.00) dollars, aggregating an actualized cost of seventy-five-thousand-seven-hundred-eighty-seven ($75,787.50) dollars and fifty-cents. Collectively, the aggregate amount due and outstanding the Private School for the Student’s ESD and Transportation Aide is onehundred-thousand-eight-hundred-ninety-seven ($100,897.50) dollars and fiftycents. [19]
18. The Petitioners proffered the Parent as a witness, who testified regarding the Student’s Diagnoses, history of educational placements, academic difficulties, learning challenges, dysregulation, lack of safety awareness, behavioral and social/emotional problems. The Parent opined as to the basis for the Student’s placement at the Private School, in addition to her need for ESY, ESD and a 1:1 Transportation Aide; specifically, during the ESD programs, the Student was able to finish her academic studies, and work on her dysregulation and social skills. The Parent further testified that the District failed to provide a SLL for the Student’s placement for the 2022/2023 school year; the District failed to provide the Student with a bus for Transportation home from the Private School; the District failed to provide the Student with a 1:1 Transportation Aide; and the Parents are unable to afford the cost of Tuition at the Private School. [20]
VI. CONCLUSIONS OF LAW AND DISCUSSION
This Hearing Officer will examine the facts established by documentary and testimonial evidence contained in the Hearing Record; and determine the proper application of Federal and State Regulations, Statutes and Caselaw, to render a Decision that discusses the following, as applicable to the Student’s 2022/2023 school year: (1) whether the District failed to develop an appropriate IEP; (2) whether the District failed to recommended an educational placement; (3) whether the District met its statutory burden of proof, production and persuasion relating to the alleged denial of FAPE; and (4) whether equitable considerations favor an award directing District funding of the Student’s Tuition and/or Transportation to the Private School.
A. IDEA
The IDEA’s purpose is “to ensure that all children with disabilities have available to them a free appropriate public education.” T.K. v. N.Y.C. Dep’t of Educ. , 810 F.3d 869, 875, (2d Cir. 2016); citing 20 U.S.C. § 1400(d)(1)(A). More particularly, the IDEA seeks to ensure that (1) 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) the rights of students with disabilities and parents of such students are protected. U.S.C. § 1400(d)(1)(A)-(B); Forest Grove Sch. Dist. v. T.A. , 557 U.S. 230, 238-239 (2009); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley , 458 U.S. 176, 206-07 (1982). The Second Circuit finds that, “[i]n practice, this means that [the Districts] have an affirmative obligation to provide a basic floor of opportunity for all children with disabilities, … described [as] an education likely to produce progress, not regression, and one that affords the student with an opportunity greater than mere trivial advancement.” T.K. , 810 F.3d 869, 875; Cerra v. Pawling Cent. Sch. Dist. , 427 F.3d 186, 195 (2d Cir. 2005); quoting Walczak v. Fla. Union Free Sch. Dist. , 142 F.3d 119, 130 (2d Cir. 1998); see T.P. v. Mamaroneck Union Free Sch. Dist ., 554 F.3d 247, 254 (2d Cir. 2009); P. v. Newington Bd. of Educ. , 546 F.3d 111, 118-19 (2d Cir. 2008).
The centerpiece of the IDEA and its principal mechanism for achieving the goal of “a basic floor of opportunity for all children with disabilities” is the IEP. Honig v. Doe , 484 U.S. 305, 311 (1988); D.S. v. Bayonne Bd. of Educ. , 54 IDELR 141 (2010); quoting Polk v. Cent. Susquehanna Intermediate Unit, 16 , 853 F.2d 171, 173 (3d Cir. 1988). The IEP is the means by which special education and related services are tailored to the unique needs of a particular child. Endrew F. v. Douglas Cty. Sch. Dist. RE-1 , 137 S. Ct. 988, 994 (2017); quoting, Rowley , 458 U.S. 176, 181. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak , 142 F.3d 119, 130; see Rowley , 458 U.S. 176, 203. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” Walczak , 142 F.3d 119, 132; quoting Tucker v. Bay Shore Union Free Sch. Dist ., 873 F.2d 563, 567 (2d Cir. 1989).
B. FAPE
FAPE must be offered to each Student with a disability residing in the District who requires special education services or programs. 20 U.S.C. §1412(a)(1)(A); Educ. Law §4402(2)(a)(b)(2). The 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. 176, 203. 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. 176, 206-207; T.M. v. Cornwall Cent. Sch. Dist. , 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ. , 694 F.3d 167, 189-90 (2d Cir. 2012); M.H. v. New York City Dep’t of Educ. , 685 F.3d 217, 245 (2d Cir. 2012); Cerra , 427 F.3d 186, 192. However, under the IDEA, a substantive violation may arise where the substantive content, such as the educational services, contained in the IEP, is insufficient to afford FAPE; and procedural violations may occur when the District fails to comply with the IDEA’s process-based requirements.
The IDEA directs that a two-part inquiry must be made based on substantive grounds and procedural inadequacies, to determine whether a Student received a FAPE. 20 U.S.C. §1415(f)(3)(E). At the first step, Courts examine whether there were procedural violations of the IDEA, namely, “whether the state has complied with the procedures set forth in the IDEA.” Cerra, 427 F.3d 186, 192. If procedural violations are alleged, then a determination is made that the Student did not receive a FAPE, only if the District’s alleged procedural inadequacies: (a) impeded the Student’s right to a FAPE, (b) significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the Student, or (c) caused a deprivation of his/her educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. 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 167, 190; M.H. , 685 F.3d. 217, 245; A.C. v. Bd. of Educ. , 553 F.3d 165, 172 (2d Cir. 2009). Courts then examine whether the IEP was substantively adequate, namely, whether it was “reasonably calculated to enable the child to receive educational benefit[s].” Cerra, 427 F.3d 186, 192; quoting, Rowley, 458 U.S. 176, 206-
07. Since Rowley , Courts have generally viewed violations of FAPE as substantive when they involve:
(1) content, adequacy and compliance with an IEP;
(2) implementation of the IEP; or (3) failure to educate in the least restrictive learning environment. Substantive inadequacy automatically entitles the Parent to reimbursement. As discussed more fully infra , an examination was undertaken to determine whether the Student’s right to a FAPE was procedurally and/or substantively hindered by the District, during the 2022/2023 school year.
C. IEP
The centerpiece for the implementation of FAPE is the IEP. S.H. v. State-Operated Sch. Dist. of the City of Newark , 336 F.3d 260, 264 (3d Cir. 2003). An appropriate educational program begins with an IEP, which includes a statement of the student’s present levels of academic achievement and functional performance (34 C.F.R. 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ. , 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008); establishes annual goals designed to meet the student’s needs resulting from the student’s disability and enables him or her to make progress in the general education curriculum (34 C.F.R. 300.320(a)(2)(i); 34 C.F.R. 300.320(2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)); and provides for the use of appropriate special education services. 34 C.F.R. 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v)(6). The Supreme Court has indicated that “[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” Endrew F. , 137 S. Ct. 988,
999. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created”. Endrew F. , 137 S. Ct. 988, 1001. 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); Endrew F. , 137 S. Ct. 988, 1001 (holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”); Rowley , 458 U.S. 176, 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 C.F.R. 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc); 8 NYCRR 200.6(a)(1); Newington , 546 F.3d 111, 114; Gagliardo v. Arlington Cent. Sch. Dist. , 489 F.3d 105, 108 (2d Cir. 2007); Walczak , 142 F.3d 119, 132. However, in order to determine whether a Student is eligible to receive a FAPE under the IDEA, the District must first conduct an initial evaluation to identify the Student’s educational needs. 20 U.S.C. § 1414(a)(1)(A); 34 C.F.R. 300.301(a). Thereafter, the District must develop and recommend an IEP, which reflects the evaluation results (8 NYCRR § 200.4(d)(2)(i)); classifies the Student under one disability category (34 C.F.R. 300.641(c)); and “include[s] special education and related services tailored to meet the unique needs of a particular child and be reasonably calculated to enable the child to receive educational benefits.” Frank G. v. Bd. of Educ. of Hyde Park , 459 F.3d 356, 363 (2d Cir. 2006).
The IDEA directs that, in general, this 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). The 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. 176, 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 119, 130; see Rowley , 458 U.S. 176, 203. “The adequacy of a given [IEP] turns on the unique circumstances of the child for whom it was created”. Endrew F. , 137 S. Ct. 988, 1001. The IDEA’s purpose is “to ensure that all children with disabilities have available to them a free appropriate public education.” T.K. , 810 F.3d 869, 875, citing 20 U.S.C. § 1400(d)(1)(A). Therefore, to provide a FAPE, an IEP developed by the District must be reasonably calculated to enable the Student to receive educational benefits.
a. DEVELOPMENT OF IEP
The Parents assert that the District’s failure to develop an appropriate IEP for the Student, constituted a denial of FAPE for the 2022/2023 school year.
It is widely held that Federal and State regulations each require that in order to meet its legal obligations, the District must have an IEP in effect at the beginning of each school year for each child with a disability in its jurisdiction. 34 CFR 300.323(a); 8 NYCRR 200.4(e)(1)(ii); Cerra , 427 F.3d 186, 194; K.L. v. New York City Dep’t of Educ. , 2012 WL 4017822, at *13 (S.D.N.Y. Aug. 23, 2012), aff’d , 530 Fed. App’x 81 (2d Cir. 2013); B.P. v. New York City Dep’t of Educ. , 841 F. Supp.2d 605, 614 (E.D.N.Y. 2012); Tarlowe , 2008 WL 2736027, at *6. In accordance therewith, the IDEA requires a CSE to review and, if necessary, revise the Student’s [IEP] at least annually. 20 U.S.C. §1414(d)(4)(A); 34 CFR 300.324(b)(1); 8 NYCRR 200.4(f). In addition, Federal and State Regulations mandate that the CSE must revise the Student’s IEP, as necessary, to address “[i]nformation about the child provided to, or by, the Parent during the course of a reevaluation of the Student. 34 CFR 300.324(b)(1)(ii)(C); 8 NYCRR 200.4(f)(2)(ii); and State Regulations provide that, if parents believe that their child’s placement is no longer appropriate, they “may refer the student to the [CSE] for review”. 8 NYCRR 200.4(e)(4). State Regulations further provide that, if appropriate, an IEP must be revised to address “any lack of expected progress toward the annual goals and in the general education curriculum . . . the results of any reevaluation conducted . . . and any information about the student provided to, or by, the parents . . . or . . . the student’s anticipated needs.” 8 NYCRR 200.4(f)(2)(i-iii).
In developing recommendations for a student’s IEP, the CSE must consider the results of the initial or most recent evaluation; the student’s strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the student’s performance on any general State or district-wide assessment; as well as, any special factors as set forth in Federal and State regulations. 34 CFR 300.324(a); 8 NYCRR 200.4(d)(2). As to be discussed more fully infra , the Hearing Record reflects both the Student’s need and the District’s failure to recommend or provide the appropriate ESD and Transportation services during the 2022/2023 school year. Accordingly, “[w]hen a child requires special-education services, a school district’s failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP.” Forest Grove , 557 U.S. 230, 238-239. Here, the Hearing Record is bereft of any indication that the CSE developed an appropriate IEP subsequent to the 2022 CSE Meeting. Consequently, in accordance with the findings of Doe v. E. Lyme Bd. of Educ. , 790 F.3d 440, 450 (2d Cir. 2015); quoting Forest Grove , 557 U.S. 230, 238-239, the District’s failure to develop/provide an appropriate IEP, prior to commencement of the Student’s 2022/2023 school year, constituted a procedural violation of the IDEA.
1. APPROPRIATENESS OF PROGRAM
The Parents assert that the District’s failure to provide an appropriate program contributed to and constituted a denial of the Student’s FAPE.
The United States Department of Education (“USDOE”) has noted that it “referred to ‘placement’ as points along the continuum of placement options available for a child with a disability, and ‘location’ as the physical surrounding, such as the classroom, in which a child with a disability receives special education and related services”. Placements , 71 Fed. Reg. 46588 (August 14, 2006). This view is consistent with an Office of Special Education Programs (“OSEP”) opinion, which indicates that the assignment of a particular school is an administrative decision provided it is made in conformance with the CSE’s educational placement recommendation. Letter to Veazey , 37 IDELR 10 (OSEP 2001); White v. Ascension Parish Sch. Bd. , 343 F.3d 373, 379 (5th Cir. 2003); Veazey v. Ascension Parish Sch. Bd. , 2005 WL 19496 (5th Cir. 2005); A.W. v. Fairfax Co. Sch. Bd. , 372 F.3d 674, 682 (4th Cir. 2004); Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ. , 629 F.2d 751, 756 (2d Cir. 1980).
While the IDEA requires parental participation in determining the educational placement of a child (34 CFR §§ 300.116, 300.327, 300.501(c)); however, ultimately it is the program of specialized instruction and related service contained in the Student’s IEP that forms the basis for the placement decision. Accordingly, program and “placement decisions must be individually determined on the basis of each child’s abilities and needs and each child’s IEP, and not solely on factors such as . . . availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience”. Reusch v. Fountain , 872 F. Supp. 1421, 1425-26 (D. Md. 1994); Placements , 71 Fed. Reg. 46588; 34 CFR 300.116(b)(2); 8 NYCRR 200.6(a)(2); T.M. , 752 F.3d 145, 163 (finding that the IDEA’s LRE requirement is not limited, in the extended school year context, by what programs the school district already offers, but rather must be based on the student’s needs); Adams v. State , 195 F.3d 1141, 1151 (9th Cir. 1999).
i. RECOMMENDED PROGRAM
The IDEA proscribes that the Student is entitled to an IEP, which recommends an appropriate program that offers the requisite interventions and accommodations required to promote progress and support academic progression in an appropriate educational placement. In addition, the Second Circuit dictates that Parents are entitled to rely on an IEP “as written when they decide to [unilaterally] place” their child before the beginning of a school year and that a district may not rely on testimony about actions a school district would have taken to amend a student’s IEP in order to address a student’s needs to rehabilitate a deficient IEP.” Bd. of Educ. of Yorktown Cent. Sch. Dist. v. C.S., 990 F.3d 152, 173 (2d Cir. 2021); R.E., 694 F.3d 167, 187-88 (provides that “[a]t the time the parents must decide whether to make a unilateral placement . . . [t]he appropriate inquiry is into the nature of the program actually offered”). Therefore, an appropriate educational program begins with an IEP, which includes a statement of the student’s present levels of academic achievement and functional performance; (34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe , 2008 WL 2736027, at *6); establishes annual goals designed to meet the student’s needs resulting from the disability and enables him or her to make progress in the general education curriculum); 34 CFR 300.320(a)(2)(i); 34 CFR 300.320(2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)); and provides for the use of appropriate special education services. 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v)(6). Under NYS Law, the Commissioner of Education may approve the provision of “special services or programs” to students with disabilities through a variety of methods, including contracts entered into by boards of education of public schools and private non-residential schools within the State. Educ. Law §§4401(2)(e), 4402(2)(a); 8 NYCRR 200.1(d); 8 NYCRR 200.7. It is the individualized needs of all students with disabilities in a District, which will ultimately determine which special education services shall be rendered by an approved private provider. Educ. Law §4402(2)(a). Accordingly, the Student’s placement must be individually determined based on the Student’s abilities and needs; and to the extent necessary to offer the Student an appropriate educational program, his/her IEP must identify the supplementary aids and services to be provided to the Student. 20 U.S.C. §1414(d)(1)(A)(i)(IV); 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v)(a); 8 NYCRR 200.4(d)(2)(v) (b)(3); Piazza v. Florida Union Free Sch. Dist. , 777 F. Supp. 2d 669, 673 (S.D.N.Y. 2011); Gavrity v. New Lebanon Cent. Sch. Dist. , 2009 WL 3164435, at *30 (N.D.N.Y. 2009) (discussing the student’s IEP which appropriately identified program modifications, accommodations, and supplementary aids and services).
As discussed more fully, infra , in the absence of a sufficiently stated IEP, the District failed to offer the Student a program that could confer a meaningful educational benefit in relation to her individual needs and (dis)abilities; and/or could otherwise be deemed appropriate or reasonably calculated to enable her to make progress in light of her unique circumstances. In addition, the District failed to proffer any testimonial or documentary evidence, which lends credence to a contention that the Recommended Program would have appropriately addressed the Student’s unique needs. Consequently, it is this Hearing Officer’s determination that the Student was entitled to an appropriate educational placement in a supportive educational program, which offered the requisite interventions and accommodations that were reasonably calculated to enable the Student to receive educational benefits to address her academic needs and behavioral challenges.
ii. EXTENDED SCHOOL DAY PROGRAM
The Parents contend that the Student required extended school day (ESD) services during the 2022/2023 school year.
Some students with disabilities have certain needs that require educational and related services, which exceed beyond the regular school day and/or school year. However, the Court has held that even though a student may have benefited from home-based services it does not mean that such services are necessary to receive a FAPE. R.B. v. New York City Dep’t of Educ. , 2013 WL 5438605, at *15 (S.D.N.Y. Sept. 27, 2013), aff’d , 589 Fed. App’x 572 (2d Cir. Oct. 29, 2014). Accordingly, an IEP does not need to include ESD services or home-based services after school if such services would only address the student’s behaviors at home or assist the student in generalizing skills or knowledge. L.K. v. New York City Dep’t of Educ. , 2016 WL 899321, at *8-*10 (S.D.N.Y. Mar. 1, 2016), aff’d in part , 674 Fed. App’x 100 (2d Cir. Jan. 19, 2017); Student X v. New York City Dep’t of Educ. , 2008 WL 4890440 at *17-*18; (E.D.N.Y. Oct. 30, 2008) K.L. , 2012 WL 4017822, at *7, *14; C.G. v. New York City Dep’t of Educ. , 752 F. Supp. 2d 355, 360 (S.D.N.Y. 2010). In fact, several Courts have held that the IDEA does not require a District, as a matter of course, to design educational programs to address a Student’s difficulties in generalizing skills to other environments outside of the school environment, particularly in cases in which it is determined that the Student is otherwise likely to make progress in the classroom. L.K. , 2016 WL 899321, at *8-*10; Thompson R2-J Sch. Dist. v. Luke P. , 540 F.3d 1143, 1152-53 (10th Cir. 2008); Gonzalez v. Puerto Rico Dep’t of Educ. , 254 F.3d 350, 353 (1st Cir. 2001); Devine v. Indian River County Sch. Bd. , 249 F.3d 1289, 1293 (11th Cir. 2001); JSK v. Hendry County Sch. Bd. , 941 F.2d 1563, 1573 (11th Cir 1991).
In the aforementioned cases, the Courts denied the parent’s request for home-based services, residential placement and/or reimbursement of ESD services, on the basis that the child was making progress in the classroom but not generalizing the progress outside of school; however, the facts set forth in the instant case are inapposite. The Hearing Record evinces that the ESD program was provided to facilitate the Student’s development and improvement of her academics, executive functioning skills, self-regulation, self-esteem, safety awareness, active listening, auditory processing, motor planning, creativity, empathy, acceptance, strength and endurance, intellectual confidence, problem-solving, critical and computational thinking skills, focus, self-confidence, frustration tolerance, ADLs, collaboration and socialization skills. Subsequent to which, the District failed to meet its burden in challenging the benefits that the Student acquired from the ESD or otherwise refuting that the Student did not require ESD during the 2022/2023 school year. More particularly, the Hearing Record does not reflect that the ESD services exceeded the requirements of the IDEA, and/or was sought for the sole purpose of generalizing the Student’s skills outside of the school environment. Hence, absent such a showing, an IEP should not be permitted to deny the Student access to an appropriate ESD where the Student’s continuity of progress in-school was dependent on the after-school program’s ability to address her academic, executive functioning and behavioral needs, which supplemented the educational program provided within the school environment. Accordingly, the Hearing Record does not reflect that the CSE offered the Student an educational program, which could adequately address her needs during the school day without the ESD program. Collectively, the facts support a finding that the District denied the Student a FAPE by failing to recommend and/or provide appropriate ESD services for the 2022/2023 school year.
2. TRANSPORTATION
The Parents assert that the District’s failure to provide appropriate Transportation with AC, limited travel time, and a 1:1 Transportation Aide constituted a denial of FAPE.
In its definition of related services, the IDEA includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education. 20 U.S.C. § 1401(26); 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); Educ. Law § 4401(2); 8 NYCRR 200.1(ww). Specialized transportation must be included in a Student’s IEP if required to assist the Student to benefit from special education. 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); 8 NYCRR 200.1(ww). In addition, the State Education Department has indicated that a CSE should consider a Student’s mobility, behavior, communication, physical and health needs when determining whether or not a student requires transportation as a related service, and that an IEP “must include specific transportation recommendations to address each of the student’s needs, as appropriate” “Special Transportation for Students with Disabilities,” VESID Mem. (Mar. 2005).[21] Other relevant considerations may include the Student’s age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. Donald B. v. Bd. of Sch. Commrs. , 117 F.3d 1371, 1375 (11 th Cir. 1997); Malehorn v. Hill City Sch. Dist. , 987 F. Supp. 772, 775 (D.S.D. 1997).
The 2022 IEP indicates that the 2022 CSE Team Members were aware that due to safety concerns, the Student needed daily roundtrip Transportation to and from special classes or programs at another site from the closest safe curb location. In addition, based on its acquiescence of the Pendency Program, the District was aware that the Student required the addition of 1:1 behavioral support, on a small bus with AC and travel time not to exceed (sixty) 60 minutes, together with the accompaniment of a 1:1 Transportation Aide (collectively, the “Special Transportation”). Accordingly, the District was statutorily mandated to provide the Student with roundtrip Special Transportation, which necessarily included a 4:00pm pickup from the Private School upon conclusion of the ESD program. Consequently, it is this Hearing Officer’s determination that based on its failure to implement the mandates of the 2022 IEP and the Pendency Program, the District denied the Student a FAPE; and is obligated to provide full-funding and reimbursement for all costs associated with the Special Transportation to and from the Private School, inclusive of the 1:1 Transportation Aide (discussed more fully, infra ).
a. TRANSPORTATION AIDE/PARAPROFESSIONAL
The Parents contend that the 2022 IEP failed to offer the Student the appropriate support of a Transportation Aide for Special Transportation during the 2022/2023 school year.
The District was required to consider four factors in developing the Student’s IEP: (1) academic achievement and learning characteristics; (2) social development; (3) physical development; and (4) managerial or behavioral needs. 8 NYCRR 200.1(ww)(3)(i). Further, under the IDEA, in the case of a student whose behavior impedes his or her learning or that of others, the District was required to consider special factors in the development of the Student’s IEP, including positive behavioral interventions, supports and other strategies to address that behavior. 20 U.S.C. §1414(d)(3)(B)(i); 34 CFR 300.324(a)(2)(i); 8 NYCRR 200.4(d)(3)(i); J.A. v. East Ramapo Cent. Sch. Dist. , 603 F. Supp. 2d 684, 689 (S.D.N.Y. 2009); M.M. v. New York City Dep’t of Educ. , 583 F. Supp. 2d 498, 510 (S.D.N.Y. 2008); Tarlowe , 2008 WL 2736027, at *8; E.H. v. Bd. of Educ. of Shenendehowa Cent. Sch. Dist. , 361 Fed. App’x 156, 160 (2d Cir. 2009); A.C. , 553 F.3d 165, 172. While not set forth as a special factor in the IDEA, Federal and State Regulations include as a special factor, a CSE’s consideration of “supplementary school personnel [or 1:1 aide] to meet the individualized needs of a student with a disability”. 8 NYCRR 200.4(d)(3)(vii); 20 U.S.C. §1414(d)(3)(B); 34 CFR 300.324(a)(2). More particularly, the District was tasked with considering certain factors, including, the Student’s management needs; goals for reducing the need for 1:1 support; the specific support a 1:1 Paraprofessional would provide; other supports or accommodations that could meet the Student’s needs; the extent (e.g., portion of the day) or circumstances (e.g., transitions between classes) under which the Student needed the Paraprofessional; staffing ratios; how the support of a Paraprofessional might enable the Student to be educated with nondisabled peers; any potential harmful effect of having a Paraprofessional; and the training and support that would be provided to help the Paraprofessional comprehensively understand and address the Student’s needs. 8 NYCRR 200.4(d)(3)(vii).
By definition, a Paraprofessional “provides instructional support” to the Student to which s/he is assigned. 34 CFR §200.58; see also N.Y. Comp. Codes R. & Regs . tit. 8, § 120.6. In New York City Schools, a Paraprofessional assists Teachers with class work, including the daily care of students who have emotional special needs, cognitive disabilities, physical handicaps, autism and other special needs. The responsibilities of the Paraprofessional may include, but are not limited to: one-to-one or small group instruction; reinforcing behavior through the use of positive behavior support; teaching daily living skills such as independent feeding, dressing, toileting; aiding occupational therapists, physical therapists, speech therapists and adaptive physical education providers during instruction; guiding and assisting students in small group instruction settings with class routines and in transitioning from one activity to the next. In addition, the Paraprofessional may teach students: recreation, motor skills, vocational, socialization and communication; provide language assistance for bilingual students; as well as assist students with ambulation. Further, in New York State, a Policy Guidance contemplates that a proper “goal for all students with disabilities is to promote and maximize independence”, and provides examples of student needs that may require a [CSE] to consider a recommendation for the services of a 1:1 aide or Paraprofessional, including, inter alia , where the Student “presents with serious behavior problems with ongoing [daily] incidents of injurious behaviors to self and/or others or student runs away and student has a [FBA] and a [BIP] that is implemented with fidelity”; the Student “cannot participate in a group without constant verbal and/or physical prompting to stay on task and follow directions”; the Student “needs an adult in constant close proximity for direct instruction; requires individualized assistance to transition to and from class more than eighty (80%) percent of the time; and needs an adult in close proximity to supervise social interactions with peers at all times.” Guidelines for Determining a Student with a Disability's Need for a One-to-One Aide , Office of Special Educ. Field Advisory (Jan. 2012), at p. 1 & Attachment 2. [22]
Notably, th2 2022 IEP recommended that the Student required a 1:1 Paraprofessional for behavioral support in the classroom, which included closely monitoring the Student’s academic and therapeutic needs to ensure her safety in all school environments; however, the CSE failed to recommend and/or provide a 1:1 Paraprofessional a/k/a/ 1:1 Transportation Aide, which was also deemed necessary as part of the Student’s Special Transportation services and accommodations, due in to part to her Diagnoses and maladaptive and injurious behaviors. Nevertheless, the District failed to recommend a 1:1 Transportation Aide for the Student during the 2022/2023 school year, despite receiving Transportation Accommodations forms from two (2) Psychiatrists documenting the Student’s need for Special Transportation, each of whom recommended, inter alia , that the Student required door-to-door transportation, with 1:1 adult supervision from a Special Ed. Teacher or Behavior Therapist. More particularly, in May 2022, Dr. [Redacted] indicated that the Student’s severe mood symptoms affected her ability to be on the bus for extended periods of time during long trips to school, which lead to episodes of aggression and dysregulation that posed a risk to self; and thereafter, in September 2022, Dr. [Redacted] reported that the Student’s severe emotional outbursts and impulsivity when dysregulated, affected her ability to spend extended periods of time on the bus, which can lead to accidents. Consequently, it is this Hearing Officer ’s determination that the Hearing Record contains evidence that the Student needed a 1:1 Transportation Aide to provide behavioral support and ensure her safety and that of others, during her daily transitions from home to school on an ESY basis; and the District’s failure to include a 1:1 Transportation Paraprofessional and/or 1:1 Transportation Aide in the 2022 IEP, amounted to a denial of the Student’s FAPE during the 2022/2023 school year.
3. RECOMMENDATION OF EDUCATIONAL PLACEMENT
The Parents assert that the District’s failure to recommend an educational placement for the Student, constituted a denial of FAPE for the 2022/2023 school year.
Categorically, there is no requirement in the IDEA that the IEP name a specific school location; T.Y. v. New York City Dep’t of Educ. , 584 F.3d 412, 420 (2d Cir. 2009); and parents generally do not have a procedural right in the specific geographical placement of their child. Luo v. Baldwin Union Free Sch. Dist. , 2013 WL 1182232, at *5 (E.D.N.Y. Mar. 21, 2013), aff'd , 556 Fed. App’x. 1, 2013 WL 6726899 (2d Cir Dec. 23, 2013); J.L. v. City Sch. Dist. of New York , 2013 WL 625064, at *10 (S.D.N.Y. Feb. 20, 2013); R.E. , 694 F.3d 167, 191-92 (district may select a specific public-school site without the advice of the parents); F.L. v. New York City Dep’t of Educ. , 2012 WL 4891748, at *11 (S.D.N.Y. Oct. 16, 2012) (parents are not procedurally entitled to participate in decisions regarding public-school site selection). However, the District is required to notify the Parent of the name and location of the special education program and related services, prior to or contemporaneous with the implementation date of Student’s services. T.C. v. New York City Dep’t of Educ. , 2016 WL 1261137, at *9 (S.D.N.Y. Mar. 30, 2016) (the parent must necessarily receive some form of notice of the school placement by the start of the school year); see also , Tarlowe , 2008 WL 2736027, at *6. (District’s delay does not violate the IDEA so long as a public-school site is found before the beginning of the school year). As a result, State and Federal regulations mandate that the District provide parents of a student with a disability with a PWN “a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, educational placement of the student or the provision of a [FAPE] to the student.” 34 CFR 300.503(a); 8 NYCRR 200.1(oo); 8 NYCRR 200.5(a)(1). Pursuant thereto, the PWN must include a description of the action proposed or refused by the District; an explanation of why the District proposed or refused the action; a description of the other options that the CSE considered and the reasons why those options were rejected; a description of each evaluation procedure, assessment, record or report the CSE used as a basis for the proposed or refused action; and a description of the other factors relevant to the CSE’s proposal or refusal. 34 CFR 300.503(b); 8 NYCRR 200.5(a)(3).
Traditionally, the Student’s assignment to a particular school must be made by the District, subsequent to a CSE meeting and in conformity with the IEP recommendation. M.O. v. New York City Dep’t of Educ. , 793 F.3d 236, 244-45 (2d Cir. 2015); and relatedly, New York District Courts indicate that the Parent has a right thereafter to timely obtain information about an assigned public-school site from the District. H.L. v. New York City Dep’t of Educ. , 2019 WL 181307, at *9 (S.D.N.Y. Jan. 11, 2019) (noting that “[i]n light of M.O. , Courts have found that parents have the right to obtain timely and relevant information regarding school placement, in order to evaluate whether the IEP can be implemented at the proposed location”); F.B. v. New York City Dep’t of Educ. , 2015 WL 5564446, at *11-*18 (S.D.N.Y. Sept. 21, 2015) (parents “had at least a procedural right to inquire whether the proposed school location had the resources set forth in the IEP”); C.U. v. N.Y. City Dep’t of Educ. , 23 F.Supp.3d 210, 295, 2014 WL 2207997, at *14-*16 (S.D.N.Y. 2014) (“parents have the procedural right to evaluate the school assignment [and] acquire relevant information about” it).
Failure to recommend an educational placement axiomatically constitutes a procedural violation of the IDEA. Here, in the absence of any documentary or testimonial evidence proffered by the District that it provided a PWN or SLL, which specified the name or location of the Student’s proposed educational placement for the 2022/2023 school year, it is this Hearing Officer’s determination that the District failed to meet its burden of proving that the procedural violation did not rise to the level of a denial of the Student’s FAPE. Notably, it is widely held that multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not. Werner v. Clarkstown Cent. Sch. Dist. , 363 F. Supp. 2d 656, 659 (S.D.N.Y. 2005); quoting , R.E. , 694 F.3d 167, 190.
D. BURDEN OF PROOF
As a matter of general jurisprudence, the party with the burden of proof has the duty and obligation to prove or disprove a disputed fact; and under the IDEA, the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief. Schaffer , 546 U.S. 49, 59-62 (finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not). However, under New York State (“NYS”) law, during an impartial hearing, the burden of proof has been placed on the school district, who bears the burden of proof, production and persuasion; 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 also , Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist ., 773 F.3d 372, 386 (2d Cir. 2014); C.F. v. New York City Dep’t of Educ. , 746 F.3d 68, 76 (2d Cir. 2014); R.E. , 694 F.3d 167, 184-85. More particularly, to determine whether the Parent is entitled to reimbursement of expenses incurred for the unilateral placement of a disabled child in an IDEA challenge to an [IEP], this Hearing Officer is guided by the three-step Burlington/Carter test: (1) first the District must establish that the placement and services offered by the [IEP] were neither inadequate, inappropriate nor denied the Student a FAPE; however, if the District fails to meet that burden, then the Parent is entitled to tuition reimbursement if (2) they establish that the Student’s unilateral placement was appropriate; and (3) that equitable considerations support the Parent’s claim. See , Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Town of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985).
The District is required under the due process procedures set forth by NYS law to address its burdens by describing its views, based on a fact-specific inquiry set forth in an evidentiary record. The District is tasked with establishing sufficient facts and introducing proper evidence to demonstrate that recommendations made based on the Student’s educational needs were appropriate. In order to meet its burden, the District must show (a) that it complied with the procedural requirements set forth in the IDEA; and (b) that the IEP developed for the Student is reasonably calculated to confer educational benefits to the Student. Rowley , 458 U.S. 176, 206-07; M.S. v. Bd. of Educ. , 231 F.3d 96, 102 (2d Cir. 2000), cert. denied , 532 U.S. 942 (2001). Here however, the Hearing Record is devoid of any testimonial or documentary evidence presented by the District, which explains why (i) the 2022 CSE failed to recommend appropriate ESD services and Special Transportation supports for the Student; (ii) no educational placement was recommended or offered for the Student’s 2022/2023 school year; and (iii) the District failed to negate or otherwise refute the facts established in the Hearing Record or relief sought by the Parents. Accordingly, as demonstrated by the findings of fact and conclusions stated herein, it is this Hearing Officer’s determination, as set forth and discussed supra , that the District procedurally and substantively violated the IDEA and consequently denied the Student a FAPE for the 2022/2023 school year.
E. UNILATERAL PLACEMENT
The Parents contend that subsequent to the District’s failure to implement and develop an appropriate IEP and recommend an educational placement for the 2022/2023 school year, the Student was [re]enrolled into the Private School. Further asserting that the Student’s unilateral placement at the Private School was appropriate and the District is mandated to provide full funding and reimbursement in an amount aggregating two-hundred-sixty-two-thousand-eight-hundred-thirty-eight ($262,838.27) dollars-and-twenty-seven-cents for the Student’s Tuition, ESD services and Special Transportation, during the 2022/2023 school year.
The IDEA provides Federal funding for the education of children with disabilities, conditioned on the States implementing laws that guarantee educational standards. 20 U.S.C. §1412(a). Students with a disability must receive a FAPE “that emphasizes special education and related services.” 20 U.S.C. §1400(d)(1)(A). The FAPE must “meet the standards of the State educational agency” and conform to the IEP required by 20 U.S.C. §1414(d); 20 U.S.C. §1401(9)(B); 20 U.S.C. §1401(9)(D). “The Act contemplates that such education will be provided where possible in regular public schools, with the child participating as much as possible in the same activities as [non-disabled] children [and] . . . provides for placement in private schools at public expense where this is not possible.” Burlington , 471 U.S. 359, 369.
Under certain conditions, the District may be required to reimburse the parents for their expenditures for private educational services obtained for the Student, if the services offered by the District were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the Parent’s claim. Carter , 510 U.S. 7; Burlington , 471 U.S. 359, 369-70. The Supreme Court found that Congress intended retroactive reimbursement to parents by the District as an available remedy in a proper case under the IDEA. Burlington , 471 U.S. 359, 370-71; Gagliardo , 489 F.3d 105, 111; Cerra , 427 F.3d 186,
192. “Reimbursement merely requires [the 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. 359, 370-71; 20 U.S.C. § 1412(a)(10)(C)(ii); 34 CFR 300.148.
Federal and State law requires that private schools selected for placement must satisfy defined criteria for providing a FAPE and guarantee that students “have the same rights as those [disabled] students placed in facilities of the State.” Antkowiak v. Ambach, 838 F.2d 635, 640 (2d Cir. 1988), abrogated in part by Carter, 510 U.S. 7. Thereafter, in Carter , the Court addressed the narrower issue as to whether a Parent could receive reimbursement for privateschool expenses, when the Parent’s selected school did not satisfy the IDEA’s definition of a FAPE. The Parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. Carter , 510 U.S. 7, 14. The Supreme Court held that under IDEA, the Parent may independently place a Student in private school, even when the District objects to the placement. Carter, 510 U.S. 7, 13-14. However, Carter expressly distinguished the District’s direct placement of a child in a non-public school (“NPS”), from the Parent’s unilateral placement of a child in a non-approved NPS. Carter, 510 U.S. 7, 14. On the one hand, the District may consider placement of the Student in an NPS but must be certain that the NPS satisfies the Commissioner’s approval standards. Conversely, the Court found that tuition reimbursement is warranted when the Student is denied a FAPE, and the Parent unilaterally places the Student in an appropriate non-approved NPS. Carter, 510 U.S. 7, 14-15.
a. Appropriateness of Unilateral Placement
Parents seeking tuition reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” Gagliardo , 489 F.3d 105, 112; M.S. , 231 F.3d 96, 104; Educ. Law § 4404(1)(c). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [District’s] placement is appropriate should be considered in determining the appropriateness of the parents’ placement…’” Gagliardo , 489 F.3d 105, 112; Frank G., 459 F.3d 356, 364; quoting Rowley , 458 U.S. 176, 207. When determining whether the Parent’s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Frank G. , 459 F.3d 356, 364; Gagliardo , 489 F.3d 105, 115; citing, 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 only appropriate if it provides educational instruction specially designed to meet the unique needs of the Student. 20 U.S.C. § 1401(29); 34 CFR 300.39(a)(1); Educ. Law § 4401(1); 8 NYCRR 200.1(ww); Rowley , 458 U.S. 176, 188-89; Gagliardo , 489 F.3d 105, 114-15 (even though unilateral placement provided special education, evidence did not show that it provided special education services specifically needed by the student); Frank G. , 459 F.3d 356, 365.
i. Private School Program
As set forth supra , traditionally, an appropriate educational program begins with an IEP, which includes a statement of the Student’s present levels of academic achievement and functional performance; establishes annual goals designed to meet the Student’s needs resulting from the Student’s disability and enables him or her to make progress in the general education curriculum; and provides for the use of appropriate special education services. However, even in the absence of a formulated IEP, no one factor is necessarily dispositive in determining whether a Parent’s unilateral placement is reasonably calculated to enable the Student to receive educational benefits. Grades, test scores and regular advancement may constitute evidence that the Student 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 the Student’s individual needs. To qualify for reimbursement under the IDEA, the Parent need not show that the placement provides every special service necessary to maximize the Student’s potential. Frank G. , 459 F.3d 356, 364-65. The Parent will need only to demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a Student with disabilities, supported by such services as are necessary to permit the Student to benefit from instruction. Gagliardo , 489 F.3d 105, 112.
The Private School adheres to the NYS Common Core and employs NYS certified and licensed providers, inclusive of Special Education Teachers, Mental Health Professionals, and Board-Certified Behavior Analysts, whose collective mission was to provide education and treatment to students to help overcome their obstacles, attain a level of independence and gain access to the world. Notably, a unilateral placement is not deemed appropriate simply because it removes a student from an anxiety-provoking environment, as avoiding a need does not serve the same purpose or have the same effect as addressing it; rather, the placement must be tailored to address the student’s specific needs to qualify for reimbursement under the IDEA. John M. v Brentwood Union Free Sch. Dist. , 2015 WL 5695648, at *9 (E.D.N.Y. Sept. 28, 2015). W.A. v. Hendrick Hudson C. Sch. Dist ., 219 F. Supp. 3d 421, 472, 474 (S.D.N.Y. 2016) (when assessing the propriety of a unilateral placement [one should] consider “totality of the circumstances” including grades, test scores, regular advancement, other objective evidence and attendance). Here, the Private School provided a canopy of the structure and support required to address, inter alia , the Student’s specific cognitive, academic, executive functioning, regulatory, social and behavioral challenges related to her (dis)abilities. As demonstrated more fully infra , the Hearing Record supports a finding that the decision to place the Student at the Private School for the 2022/2023 school year was appropriate.
ii. Specially Designed Instruction
In an apparent retreat from the standard, articulated in Gagliardo , that the unilateral placement must provide instruction specially designed to meet the student’s unique needs, supported by services necessary to permit the student to benefit from instruction ( Gagliardo , 489 F.3d 105, 112; Frank G. , 459 F.3d 356, 364-65), the Courts have deemed evidence of the general educational milieu of a unilateral placement sufficient for purposes of tuition reimbursement. T.K. , 810 F.3d 869, 878. The Private School placed the Student in small groups, dyads and/or provided 1:1 instruction based on her individual learning style and needs, and utilized a transdisciplinary team approach, which was designed to help her academically, socially and behaviorally. Facially, the Private School may be viewed as the type of NPS that offers the kind of benefits that parents of any student would prefer, such as a small class size and an expansive curriculum; however, notwithstanding the more relaxed legal standard as applied to a Parent’s burden of proving the appropriateness of a unilateral placement, the Hearing Record sufficiently shows that the Private School offered specially designed instruction to address the Student’s identified disabilities and unique needs. Accordingly, it is this Hearing Officer’s finding that the Private School constituted an appropriate placement for the Student’s 2022/2023 school year.
iii. Student’s Progress
The Second Circuit has noted that while evidence of the Student’s actual progress is “relevant to the court’s review, . . . such progress does not [in and of] itself demonstrate that a private placement was appropriate”. Gagliardo , 489 F.3d 105, 115; Berger , 348 F.3d 513, 522; Rafferty v. Cranston Pub. Sch. Comm. , 315 F.3d 21, 26-27 (1st Cir.2002). It is generally understood that in a private school “it is more difficult to assess the significance of grades and regular advancement”. Frank G. , 459 F.3d 356, 364. Therefore, evidence of academic progress is not dispositive in determining whether a Student’s unilateral placement is appropriate. Scarsdale Union Free Sch. Dist. v. R.C. , 2013 WL 563377, at *9-*10 (S.D.N.Y. Feb. 4, 2013); M.B. v. Minisink Valley Cent. Sch. Dist. , 523 Fed. App’x 76, 78 (2d Cir. Mar. 29, 2013). However, a finding of progress is, nevertheless, a relevant factor to be considered. Gagliardo , 489 F.3d 105, 115, citing Berger , 348 F.3d 513, 522; T.K. , 810 F.3d 869, 878. Similarly, “if the child’s lack of progress under a particular IEP does not render the IEP inappropriate . . . the fact that the child may not have progressed under the parents’ chosen program should not automatically mean that the program was inappropriate at the time the placement decision was made.” C.B. , 2005 WL 1388964, at *18; citing Antonaccio v. Bd. of Educ. of Arlington Cent. Sch. Dist. , 281 F. Supp. 2d at 710, 724 (S.D.N.Y. 2003).
The Head of the Private School reported that the Student benefited from the ESY, ESD, OT and Counseling, which was demonstrated by progress and improvement in her Writing, Math, Reading, executive functioning, auditory and regulatory comprehension; in addition to decreases in her self-injurious and challenging behaviors, during the 2022/2023 school year. Accordingly, for the reasons discussed supra , the Hearing Record contains sufficient evidence to support a finding that the Parent has met the burden to show that the Student’s placement at the Private School was appropriate. In reaching this conclusion, the “totality of the circumstances” have been considered, and this Hearing Officer has determined that the Parent’s unilateral placement reasonably served the Student’s individual needs; providing educational instruction specially designed to meet the Student’s challenges; with some demonstrated progress supported by educational services found necessary to permit the Student to benefit from instruction at the Private School during the 2022/2023 school year.
iv. Least Restrictive Environment
Traditionally, the Student’s recommended program must be provided in the 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); 8 NYCRR 200.6(a)(1); Newington , 546 F.3d 111, 114; Gagliardo , 489 F.3d 105, 108; Walczak , 142 F.3d 119, 132; R.B. v. New York City Dep’t of Educ. , 603 Fed. App’x 36, 40 (2d Cir. Mar. 19, 2015) (stating that “[t]he requirement that students be educated in the least restrictive environment applies to the type of classroom setting, not the level of additional support a student receives within a placement”); T.C. , 2016 WL 1261137 at *13 (stating that “[a] less restrictive environment refers to the ratio of special education to general education students in the same classroom, not the ratio of special education students to teachers”). However, “while the restrictiveness of a private placement is a factor [in assessing the appropriateness of a unilateral placement], by no means is it dispositive”; and that “[r]estrictiveness may be relevant in choosing between two or more otherwise appropriate private placement alternatives, or in considering whether a private placement would be more restrictive than necessary to meet the child’s needs, but where the public school system denied the child a FAPE, the restrictiveness of the private placement cannot be measured against the restrictiveness of the public school option.” C.L. v. Scarsdale Union Free Sch. Dist. , 744 F.3d 826, 837, 840 (2d Cir. 2014).
The Second Circuit Court reasoned that “parents whose children are denied a FAPE may be and often are forced to turn to specialized private schools that educate only disabled children. Such private schools are necessarily restrictive as they do not educate disabled and nondisabled children together and may be more restrictive than the public school from which the child was removed. Inflexibly requiring that the parents secure a private school that is nonrestrictive, or at least as nonrestrictive as the FAPE-denying public school, would undermine the right of unilateral withdrawal as recognized by the Supreme Court in Burlington. See 471 U.S. 359, 370; C.L. , 744 F.3d 826, 837; Cleveland Heights-Univ. Heights City Sch. Dist. v. Boss ex rel. Boss, 144 F.3d 391. 400 (6th Cir. 1998) (noting Congress did not intend for a parent to choose between, on the one hand, letting a child remain in FAPE-denying public school, and, on the other hand, removing the child to specialized private school without tuition reimbursement merely because the specialized private school is more restrictive than a FAPE-denying public school). As demonstrated supra , the District has procedurally denied the Student a FAPE; accordingly, it this Hearing Officer’s finding that LRE should not be a deciding factor applicable to the Parent’s unilateral placement of the Student at the Private School.
b. Balancing of the Equities
Having found that the unilateral placement was appropriate for the 2022/2023 school year, the last determinant for tuition reimbursement is whether the Parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. Burlington , 471 U.S. 359, 374; R.E. , 694 F.3d 167, 185, 194; M.C. v. Voluntown Bd. of Educ. , 226 F.3d 60, 68 (2d Cir. 2000). “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.” Carter , 510 U.S. 7, 16; L.K. , 674 Fed. App’x 100, 101.
Traditionally, tuition funding may be denied due to the parent’s failure to timely assert the inappropriateness of an IEP, failure 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). The Second Circuit identified certain 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. E.M. v. New York City Dep’t of Educ. , 758 F.3d 442, 461 (2d Cir. 2014); C.L. , 744 F.3d 826, 840 (“[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”).
i. Parent’s Notice of Unilateral Placement
More particularly, Federal and State regulations provide that tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent IEP meeting prior to their removal of the student from public school, or by written notice ten (10) 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); 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 rather than mandatory, 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 150, 160; Rafferty , 315 F.3d 21, 27; Frank G. , 459 F.3d 356, 376; Voluntown , 226 F.3d 60, 68. Failure to adhere to the ten-day-notice requirement does not serve as an automatic categorical bar to a parent’s claim for tuition reimbursement, particularly where the school district has not asserted that any prejudice was suffered due to the parent’s untimely notice of the student’s unilateral placement. The Third Circuit instructs that a Hearing Officer must conduct an “equitable analysis” to determine whether any reimbursement award may be equitably reduced based on § 1412(a)(10)(C)(iii)(I); and to what extent the District was prejudiced by receiving the Parent’s late notice. Upper Freehold Reg’l Bd. of Educ. v. T.W. , 496 F. App’ 238, 244 (3d Cir. 2012).
It is well-settled that, even when a District fails to provide a FAPE and the placement of a Student in a private school is appropriate, the adjudicator retains “discretion to reduce the amount of a reimbursement award if the equities so warrant” 20 U.S.C. § 1412(a)(10)(C) (tuition reimbursement may be denied “upon a judicial finding of unreasonableness with respect to actions taken by the parents”); including for failure to “give the school district adequate notice of their intent to enroll the child in private school.” Forest Grove , 557 U.S. 230, 247; C.H. v. Cape Henlopen Sch. Dist. , 606 F.3d 59, 71 (3d Cir. 2010). The discretionary nature of the notice provision is reflected in the plain language of the statute, which provides that the cost of reimbursement “may be reduced or denied” for lack of adequate notice, rather than must be denied. 20 U.S.C.A. § 1412(a)(10)(C)(iii). Indeed, several courts have exercised their equitable discretion to permit parents to recover the full or partial cost of reimbursement, despite the parents’ failure to provide timely notice as required under IDEA and the State regulations. W.M. v. Lakeland Cent. Sch. Dist. , 783 F. Supp. 2d 497, 505 (S.D.N.Y. 2011) (finding that, despite the parents’ failure to provide the school with timely notice of their intent to remove their child from public school, “the equities favor[ed] providing partial reimbursement to the [parents].”); J.S. v. Scarsdale Union Free Sch. Dist. , 826 F. Supp. 2d 635, 676 (S.D.N.Y. 2011) (finding that, despite the parents’ failure to comply with IDEA’s notice provision, “in the exercise of its discretion, and taking into consideration the record as well as the findings of the [administrative tribunal], . . . equitable considerations justif[ied] reducing the parents’ tuition reimbursement request by 75%.”).
Accordingly, this Hearing Officer is required to exercise broad discretion and perform an equitable analysis, even where it is determined that the District failed to provide a FAPE and the Student’s unilateral placement is appropriate. However, there is no indication that the Parent unreasonably failed to provide timely notice of the unilateral placement to the District. 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 CFR 300.148(d)(1). The Hearing Record contains documentary and testimonial evidence demonstrating that the Parent provided a TDN on January 16, 2022, which informed the District that it had failed, inter alia , to offer an SLL or placement recommendation; and therefore, the Parent intended to [re]enroll the Student into the Private School for the 2022/2023 school year and seek reimbursement and/or funding for the Student’s placement thereat. The District did not assert that any prejudice was suffered by the TDN; and the facts of this case do not remotely approach any uncooperativeness by the Parent, the type of which Courts have found to justify denial of tuition reimbursement altogether. S.W. v. New York City Dep’t of Educ. , 646 F.Supp.2d 346, 364 (S.D.N.Y. 2009) (denying tuition reimbursement because the plaintiff did not give written notice to the department of education that she was rejecting the public-school placement and enrolling the student in a private school until four months after the student began attending the private school, seven months after the CSE meeting, and three months after visiting the public-school placement); Carmel Cent. Sch. Dist. v. V.P. , 373 F.Supp.2d 402, 416 (S.D.N.Y. 2005) (declining to award tuition reimbursement where the parents “never had the slightest intention of allowing the child to be educated in the public school and did everything possible so that they could frustrate a timely review of [the child’s] condition” before enrolling the child in a private school); J.S. , 826 F.Supp.2d 635, 675. Consequently, under the facts and circumstances stated herein, this Hearing Officer finds that denial of the Parent’s request for tuition funding for the Student’s enrollment in the Private School would be both unsubstantiated and inequitable.
ii. Parent’s Cooperation with District
The Supreme Court stated that “[t]he core of the [IDEA] is the cooperative process that it establishes between parents and schools.” Schaffer , 546 U.S. 49, 53, citing Rowley , 458 U.S. 176, 205-06. The Second Circuit has held that where a Parent cooperates with a District in its attempts to develop an appropriate educational program for the Student, “their pursuit of a private placement [i]s not a basis for denying their [request for] tuition reimbursement, even assuming . . . that the parents never intended to keep [the student] in public school.” C.L. , 744 F.3d 826, 840. New York State Regulations impose specific requirements for District placements such as: (i) levels of academic or educational achievement and learning characteristics; (ii) levels of social development; (iii) levels of physical development; and (iv) the management needs of the students in the classroom as well as the specific age range of the students. NYCRR 8 §200.6(h). Ultimately, both the Parent and the District must take certain affirmative steps to ensure completion of the placement process.
The Hearing Record does not reflect that the Parent was uncooperative at any point; obstructive in providing evaluative information and timely responses to the District; reluctant to attend a CSE meeting; or otherwise, unwilling to consider an alternative placement. As such, the Hearing Record does not support a finding that the Parent failed to cooperate with the District; and the District has not alleged any equitable factors that would preclude an award of tuition funding of the cost of the Student’s attendance at the Private School. Thereafter, the Parent’s notice of intent to unilaterally place the Student at the Private School, was timely; as the TDN fully enunciated the Parent’s basis for the unilateral placement and afforded the District an opportunity to resolve the matter, prior to [re]enrolling the Student in the Private School and prior to filing the Complaint. Therefore, it is this Hearing Officer’s determination that the District failed to offer the Student a FAPE for the 2022/2023 school year; the unilateral placement was appropriate; and equitable considerations favor the Parent.
F. RELIEF – DIRECT FUNDING/REIMBURSEMENT
The Parents contend that the Student’s unilateral placement at the Private School should be determined as appropriate; and as such, the District should be directed to provide funding and reimbursement for the full cost of the Student’s Tuition during the 2022/2023 school year; in addition to funding and reimbursement for costs incurred by the Parents for the Student’s Special Transportation. It is well settled that unlike procedural violations, which singularly will not result in a FAPE denial, “[s]ubstantive inadequacy automatically entitles the parents to reimbursement.” R.E., 694 F.3d 167, 190. As demonstrated supra , the procedural deficiencies and substantive inadequacies underlying the IEP denied the Student a FAPE.
a. TUITION
Districts can be directed to make retrospective tuition payments 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) due to a lack of financial resources, the parents have not made tuition payments yet are legally obligated to do so. Mr. and Mrs. A. , 769 F. Supp. 2d 403, 406 (2011). However, where the Parent has the financial means to front the initial costs of tuition for enrollment in a private school, the District is not otherwise excused from its responsibility to provide a “free” appropriate public education to the Student. 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). In analyzing the earlier findings of Carter , Burlington , and Rowley , the Connors Court aptly provided that “a school’s non-approval status” cannot be the justification for denying a child access to needed educational services in all situations. In particular, when a child’s access to a free and appropriate public education in a substantive sense conflicts with the state’s approval process, Carter instructs that the State’s approval process must give way. The IDEA requires that special education services are to be provided “at no cost to parents,” 20 U.S.C. § 1401(29), and numerous provisions of IDEA reflect Congress’ determination that the guarantee of a FAPE should extend to all children with disabilities, regardless of their financial means. 20 U.S.C. § 1437(b)(7).
Based on the foregoing, the evidence in the Hearing Record demonstrates that the Parents’ placement of the Student at the Private School during the 2022/2023 school year was reasonably calculated to meet her unique needs; and equitable considerations warrant an award in favor of the Petitioners, granting full funding for the cost of Tuition and related ESD costs for the Student’s attendance at the Private School during the 2022/2023 school year. Accordingly, this Hearing Officer finds that the Parents’ placement of the Student at the Private School was appropriate; and has reasonably contributed to provide a meaningful educational benefit to the Student. In addition, this Hearing Officer concludes that the appropriateness of the Parents’ placement of the Student at the Private School meets the standards of the Burlington/Carter Test for tuition reimbursement; and therefore, the District is directed to provide full tuition funding for the Student’s attendance at the Private School, during the 2022/2023 school year, in an aggregate amount not to exceed one-hundred-eighty-three-thousand-seven-hundred-forty ($183,740.00) dollars, which represents the cost of the Student’s base Tuition of one-hundred-fifty-eight-thousand ($158,000.00) dollars; together with ESD Tuition of twenty-five-thousand-one-hundred-ten ($25,110.00) dollars; and the sixhundred-thirty ($630.00) dollars the Parents paid for swimming services at the Private School to further supplement the Student’s ESD program
More particularly, upon presentment of the Tuition Affidavit and Proof of Payment, which are annexed hereto as Exhibit(s) L, M and N, the District shall directly reimburse the Parent the full amount of one-hundred-fifty-eight-thousand-six-hundred-thirty ($158,630.00) dollars for the base Tuition remitted by the Parents to the Private School for the Student’s attendance thereat during the 2022/2023 school year; together with the supplemental ESD cost for the Student’s swimming paid by the Parents. Further, in accord with the Accounting Statement annexed hereto as Exhibit IHO-5, the District shall submit a payment directly to the Private School in the amount of twenty-five-thousand-one-hundred-ten ($25,110.00) dollars for the ESD Tuition, which remains due and outstanding to the Private School for the Student’s attendance in the ESD program thereat during the 2022/2023 school year.
b. TRANSPORTATION
As established supra , the District failed to provide the Student with Special Transportation services during the 2022/2023; specifically, the District neither provided the Student with a roundtrip 1:1 Transportation Aide, nor Transportation services from the Private School to home. In accordance with this Hearing Officer’s finding that the Student was appropriately placed and attended the Private School, axiomatically, the Student also had a statutory right to the District’s provision or funding of Transportation to benefit from the academic and behavioral instruction and ESD at the Private School. However, the Hearing Record reflects documentary and testimonial evidence that the Parent had to incur costs of three-thousand-three-hundred-ten ($3,310.77) dollars-and-seventy-seven-cents, during the 2022/2023 school year, to transport the Student, via Lyft and Uber, from the Private School to the Student’s residence on a daily basis. Consequently, it is the determination of this Hearing Officer that that upon submission of the Exhibit designated as IHO-3, the District shall remit full reimbursement to the Parent for all expenditures incurred for the Student’s Special Transportation during the 2022/2023 school year, the cost of which aggregated ($3,310.77).
In addition, the Hearing Record reflects that during the Student’s daily roundtrip from the Private School to her residence, the Private School provided the Student with the accompaniment of a 1:1 Transportation Aide in the morning and afternoon, pursuant to the recommendations of two (2) Psychiatrists and in accordance with the Pendency Form. Therefore, it is the further determination of this Hearing Officer that upon submission of the Accounting Statement, which is annexed hereto as Exhibit IHO-5, the District shall remit a payment to the Private School for costs incurred for the 1:1 Transportation Aide services provided to the Student in an aggregate amount not to exceed seventy-five-thousand-seven-hundred-eighty-seven ($75,787.50) dollars-and-fifty-cents.
G. RELIEF SOUGHT FOR ADDITIONAL CLAIMS
As a matter of general jurisprudence, the party with the burden of proof has the duty and obligation to prove or disprove a disputed fact; however, as stated supra , in New York the District bears the burden of proof, production and persuasion. Here, in electing not to present appropriate documentary or testimonial evidence sufficient to refute certain allegations raised in the Complaint, the District failed to satisfactorily meet its burden in demonstrating that a FAPE was offered to the Student during the 2022/2023 school year. In response thereto, the Parent asserts that they should prevail under Prong I based on the District’s lack of evidence in the Hearing Record, which can only be viewed as the Parent’s request for a default judgment. However, an impartial hearing officer is not automatically required to order any and all relief requested by the Parent, as it has been held that an outright default judgment awarding compensatory education or any relief requested, without question, is a disfavored outcome even in those instances where the District’s conduct in denying the Student a FAPE and in failing to actively participate in the impartial hearing process is, viewed by some, as egregious. Branham v. Govt. of the Dist. of Columbia , 427 F.3d 7, 11-12 (D.C. Cir. 2005); G.M. v. Dry Creek Joint Elementary Sch. Dist. , 595 F. App’x 698, 699 (9th Cir. 2014); Jalloh v. Dist. of Columbia , 535 F. Supp. 2d 13, 19-20 (D.D.C. 2008); Sykes v. Dist. of Columbia , 518 F. Supp. 2d 261, 267 (D.D.C. 2007).
As such, notwithstanding whether the relief sought relates to an alleged denial of FAPE, tuition funding or a compensatory award, the IDEA requires each IHO to make a determination on substantive grounds based on the contents of the hearing record. Accordingly, this Hearing Officer can neither render a declaratory nor default judgement on the basis of insufficient factual evidence in the Hearing Record. More particularly, an IHO is not vested with “the inherent power to make up remedies out of whole cloth”. S. Kingstown Sch. Comm. v. Joanna S. , 2014 WL 197859, at *9 n.9 (D.R.I. Jan. 14, 2014), aff’d , 773 F.3d 344 (1st Cir. 2014). State regulations provide in relevant part that “[t]he decision of the [IHO] shall set forth the reasons and the factual basis for the determination. The decision shall reference the hearing record to support the findings of fact” 8 NYCRR 200.5(j)(5)(v). It has been additionally noted that neither IHOs nor State Review Officers (“SROs”) have authority to enforce prior decisions rendered by administrative hearing officers, much less to enforce decisions of the courts. Educ. Law §§ 440([1)(a); (2); see e.g. , A.R. v. New York City Dep’t of Educ. , 407 F.3d 65, 76, 78 n.13 (2d Cir. 2005) (specifically, IHOs do not retain jurisdiction to enforce their own orders and that a party who receives a favorable administrative determination may enforce it in court); A.T. v. New York State Educ. Dep’t , 1998 WL 765371, at *7, *9-*10 & n.16 (E.D.N.Y. Aug. 4, 1998). Further, the scope of the Hearing must be strictly limited to the issues asserted within the four corners of the Complaint. 8 N.Y.C.R.R. § 200.5 (j)(l)(ii); 20 U.S.C. § 1415(F)(3)(b ); B.P. , 841 F. Supp. 2d 605, 611; R.C. ex rel. M.C. v. Byram Hills School Dist. , No. 11 Civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). In addition to which, the Courts have traditionally distinguished between systemic violations that should be addressed by the Federal Courts, as opposed to “technical questions of how to define and treat individual students’ learning disabilities, which are best addressed by administrators”. Levine v. Greece Cent. Sch. Dist. , 2009 WL 261470, at *9 (W.D.N.Y. 2009), aff'd , 353 Fed. App’x 461 (2d Cir. Nov. 12, 2009); Dean v. Sch. Dist. of City of Niagara Falls , 615 F. Supp. 2d 63, 70 (W.D.N.Y. 2009).
Here, certain issues for adjudication were provided in advance of the Hearing; set forth during the Parents’ opening statement; addressed by the witnesses during the Hearing; delineated in the Parents’ Closing Brief; and now decided herein by this Hearing Officer. Remaining however, are a myriad of bare allegations and ‘systemic violation’ claims presented in the Complaint and/or raised for the first time in the Parents’ Closing Brief, which do not have adequate factual evidence in the Hearing Record that would fully satisfy the factual basis required to render a determination and/or otherwise support a finding that the Student was either denied a FAPE or her rights violated, as a result of the District’s alleged failure to, inter alia , ‘address, adopt, conduct, consider, describe, implement, individualize, offer, possess, provide and/or recommend’ many of the Parents’ enumerated claims. Consequently, due to the absence of sufficient testimonial or documentary evidence supported by the Hearing Record in relation to the aforementioned issues/claims, further consideration by this Hearing Officer cannot be undertaken; and accordingly, the Parents’ request for relief of each remaining issue or claim, which has not been specifically addressed herein, must be Denied.
ORDER
WHEREFORE IT APPEARING that the Hearing Record adequately demonstrates that after full consideration of the Hearing Record, together with the applicable Federal and State Regulations, and the Conclusions of Law, this Hearing Officer has determined, inter alia , that during the 2022/2023 school year, the (i) District failed to develop an appropriate IEP; (ii) District failed to recommend a placement; and (iii) District failed to satisfy its statutory burden of proof or persuasion to refute that it violated the IDEA or denied the Student a FAPE; and
IT IS HEREBY ORDERED that the District procedurally and substantively violated the IDEA and denied the Student a FAPE during the 2022/2023 school year; and
IT IS HEREBY FURTHER ORDERED that the Parents’ unilateral placement of the Student at the Private School during the 2022/2023 school year is appropriate under the IDEA, and equitable considerations favor an award directing District funding and reimbursement for the full cost of the Student’s Tuition and ESD Services owed to the Private School and Parents, respectively, for the Student’s attendance thereat, during the 2022/2023 school year; and
IT IS HEREBY FURTHER ORDERED that equitable considerations favor an award directing District funding and reimbursement for the full cost of the Student’s Transportation and Transportation Aide Services to and from the Private School, during the 2022/2023 school year; and
IT IS HEREBY FURTHER ORDERED that within fifteen (15) days of the Parents’ presentment of proof, in the form designated herein as Exhibit L, the District shall remit a payment directly to the Parents in an aggregate amount not to exceed one-hundred-fifty-eight-thousand-six-hundred-thirty ($158,630.00) dollars, in its entirety, as full reimbursement for the base Tuition paid by the Parents to the Private School for the Student’s attendance thereat during the 2022/2023 school year, together with the supplemental ESD cost for the Student’s swimming paid by the Parents to the Private School; and
IT IS HEREBY FURTHER ORDERED that within fifteen (15) days of the Parents’ presentment of proof, in the form designated herein as Exhibit IHO-5, the District shall remit payment directly to the Private School for the ESD Tuition, which remains due and outstanding for the one-hundred-sixty (162) hours of 1:1 ESD Services provided to the Student, at an hourly rate of one-hundred-fifty-five ($155.00) dollars, during the 2022/2023 school year, in an aggregate amount not to exceed twenty-five-thousand-one-hundred-ten ($25,110.00) dollars, in its entirety; and
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IT IS HEREBY FURTHER ORDERED that within fifteen (15) days of the Parent’s presentment of proof, in the form designated herein as IHO-3, the District shall remit a payment directly to the Parents in an aggregate amount not to exceed three-thousand-three-hundred-ten ($3,310.77) dollars-and-seventy-seven-cents, in its entirety, as full reimbursement for the out-of-pocket costs incurred by the Parent in transporting the Student to and from the Private School during the 2022/2023 School Year; and
IT IS HEREBY FURTHER ORDERED that within fifteen (15) days of the Parent’s presentment of proof, in the form designated herein as Exhibit IHO-5, the District shall remit payment directly to the Private School for the 1:1 Transportation Aide Services, which remains due and outstanding for the three-hundred-fifty-two-and-a-half (352.5) hours of 1:1 Transportation Aide provided to the Student, at the hourly rate of two-hundred-fifteen ($215.00) dollars, during the 2022/2023 School Year, in an aggregate amount not to exceed seventy-five-thousand-seven-hundred-eighty-seven ($75,787.50) dollars-and fifty-cents, in its entirety; and
IT IS HEREBY FURTHER ORDERED that the Parents’ request for any additional claims asserted or relief sought in the Complaint, for which no supporting and/or sufficient testimonial and/or documentary evidence was provided during the Hearing or otherwise supported by the Hearing Record, is hereby Denied; and
IT IS HEREBY FURTHER ORDERED that the Parents’ request for any claims asserted or relief sought, which were raised subsequent to filing the Complaint and/or raised for the first during the Hearing or in the Closing Brief, is hereby Denied; and
IT IS HEREBY FURTHER ORDERED that the Parents’ request for any relief sought or claims asserted, which were withdrawn prior, during or subsequent to the Hearing, is hereby Denied; and
IT IS HEREBY FURTHER ORDERED that the Parents’ request for any relief sought that is not within the jurisdictional ambit or authority of this Hearing Officer, is not properly seated before me, and is hereby Denied; and
IT IS HEREBY FURTHER ORDERED that the Parents’ request for Attorney Fees and Costs, is Denied; as this Hearing Officer is not authorized to award attorneys’ fees or other costs to a prevailing party; entitlement, if any, must be determined by a Court of competent jurisdiction;[23] and
IT IS HEREBY FURTHER ORDERED that any remaining issue, claim or contention not expressly addressed in this Decision, is hereby Denied.
IT IS SO ORDERED.
Dated: June 2, 2024
/s/ Patricia L. Murrell
Impartial Hearing Officer, Patricia L. Murrell
IHO.PatriciaMurrell@gmail.com
Copies to: All Parties
NOTICE OF RIGHT TO APPEAL
Within forty (40) days of the date of this Decision, the Parents and/or the 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 twenty-five (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 forty (40) days from the date of the decision sought to be reviewed. An appealing party shall file the (i) notice of intention to seek review, (ii) notice of request for review, (iii) request for review, and (iv) proof of service with the Office of State Review of the New York State Education Department within two (2) days after service of the request for review is complete. The Rules of Procedure for Proceedings 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.
Case No. 228733 INDEX OF EVIDENCE
PARENT’S EVIDENCE/EXHIBITS
| Ex. | Description | Date(s) | No. Page(s) |
| A | Due Process Complaint | January 18, 2022 | 10 |
| B | Ten Day Notice With Proof of Delivery | January 16, 2022 | 5 |
| C | Psychiatric Evaluation, [Redacted], Md | May 6, 2019 | 5 |
| D | Letter From Dr. [Redacted] | May 16, 2022 | 1 |
| E | [Redacted] FBA and BIP | December 2022 | 13 |
| F | [Redacted] Progress Report | November 18, 2022 | 12 |
| G | [Redacted] Progress Report | February 17, 2023 | 13 |
| H | Daily Classroom Schedule | 2022/2023 | 4 |
| I | [Redacted] Program Description | 2022/2023 | 1 |
| J | [Redacted] Program Description – ESD/Trans. | 2022/2023 | 3 |
| K | [Redacted] Enrollment Contract | April 2, 2022 | 18 |
| L | [Redacted] Tuition Affidavit | March 15, 2023 | 2 |
| M | Tuition Proof of Payments | Various | 12 |
| N | Swim Proof of Payments – ESD | Various | 5 |
| O | Financial Affidavit of [Redacted] | May 20, 2023 | 2 |
| P | [Redacted] Invoices – ESD/Transportation | July 2022-April 2023 | 80 |
| Q | Tax Return Form 1040 | 2021 | 2 |
| R | Emails – Transportation Accommodations | June 13, 2022 | 5 |
| S | Emails – Transportation Accommodations | September 20, 2022 | 4 |
| T | Financial Affidavit of [Redacted] | May 30, 2023 | 2 |
| U | Transportation Receipts/Proof of Payments | Various | 78 |
| V | [Redacted] Progress Report | June 16, 2023 | 16 |
| Total Exhibits/Cover: | 295 |
DISTRICT EVIDENCE/EXHIBITS
| Ex. | Description | Date(s) | No. Page(s) |
| 1 | Individualized Education Plan | January 11, 2022 | 33 |
HEARING OFFICER EXHIBITS
Ex. Description _____ Date(s) No. Page(s)
IHO-1 Joint Statement of Undisputed Facts June 5, 2023 5
IHO-2 Statement of Issues to be Adjudicated June 6, 2023 3
IHO-3 Affidavit of [Redacted] re Transportation June 27, 2023 19
IHO-4 Pendency Program October 5, 2022 2
IHO-5 Accounting Statement for ESD and Transportation October 5, 2022 5
IHO-6 Parents’ Post-Hearing/Closing Brief July 20, 2023 19
Total Pages: 53
Case No. 228733 INDEX OF EVIDENCE
(Cont.)
TRANSCRIPTS
Type of Conference/Hearing Date(s) __No. Page(s)
Prehearing Conference August 18, 2022 9
Status Conference September 13, 2022 8
Second Status Conference October 13, 2022 8
Third Status Conference November 22, 2022 6
Fourth Status Conference January 5, 2023 6
Fifth Status Conference February 8, 2023 8
Sixth Status Conference March 14, 2023 6
Seventh Status Conference April 18, 2023 18
Eighth Status Conference May 16, 2023 17
Due Process Hearing – Day 1 June 6, 2023 43
Due Process Hearing – Day 2 June 21, 2023 140
Due Process Hearing – Day 3 June 22, 2023 51
Total Transcripts: 320
Total Document Page(s): 701
Footnotes
[1] The Hearing Record cited to in these Findings of Fact and Decision (hereinafter, the “Decision”) includes and references documents, which are designated as follows: to the Transcript, “Tr.” followed by the respective page/line number(s); to the Exhibits, as designated by the Parent’s Disclosure/Exhibit List, which are identified alphabetically: (A through V); as designated by the District’s Disclosure/Exhibit List, which is identified numerically: (“1”) “IHO” for Impartial Hearing Officer Exhibits, (IHO-1 through IHO-6); and, as to any other document(s) included in the Hearing Record not specifically assigned an exhibit number, each of which will be identified by the respective document name and relevant page numbers, therein.
[2] See, IHO-1 – Joint Statement of Undisputed Facts.
[3] See, IHO-2 – Statement of Issues to be Adjudicated.
[4] See, IHO-6 – Parent’s Post-Hearing/Closing Brief.
[5] See , C-1; through C-3; D-1; E-3; see also , 1-1; 1-31.
[6] See , 1-1; through , 1-33.
[7] See , B-1; through, B-5.
[8] See , K-1; through , K-18.
[9] See , I-1.
[10] See , J-1; J-2.
[11] See , R-1; through , R-4.
[12] See , R-1; through, R-4.
[13] See , IHO-4-1; IHO-4-2.
[14] See , L-1; L-2; see also , M-1; through , M-12; N-1; through , N-5.
[15] See , O-1; O-2; see also , P-1; through , P-80.
[16] See , IHO-3-1; through , IHO-3-19; see also , T-1; T-2; U-1; through U-78; Tr. 229:6-15; N-1; through , N-5.
[17] Tr. 110:10-25; through and including , Tr. 121:1-2.
[18] Tr. 129:8-25; through and including , Tr. 175:1-23; see also , E-1; through , see also , E-13; Tr. 207:13-25.
[19] Tr. 179:11-25; through and including , Tr. 204:1-25; see also , IHO-5-1; through , IHO-5.
[20] Tr. 221:5-25; through and including , Tr. 237:1-24; Tr. 239:1-8; Tr. 240:24-25; through , Tr. 247:1-4.
[21] Available At http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf.
[22] Available at http://www.p12.nysed.gov/specialed/publications/1-1aide-jan2012.pdf
[23] See , 20 U.S.C. § 1415(i)(3)(B); 34 CFR 300.517; Mr. B. v. E. Granby Bd. of Educ. , 201 Fed. App’x 834, 837 (2d Cir. Oct. 27, 2006).