New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 576133 - NYC: 228839

FINDINGS OF FACT AND DECISION

Case Number: 228839

Student’s Name^[1]: REDACTED (“Student”)

Date of Birth: REDACTED

School District: REDACTED

Hearing Requested by: REDACTED (“Parent(s)”)

Request Date/Date Complaint Filed: July 11, 2022

Date(s) of Hearing: November 1, 2022

Actual Record Closed Date: January 20, 2023

Date of Decision: January 20,2023

Hearing Officer: Mercedes Cesaratto

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 1, 2022

For the Student:

REDACTED.

REDACTED

For the Department of Education:

REDACTED

INTRODUCTION

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about July 11, 2022 (P-A).^[2] The Parent alleged that the New York City Department of Education (“DOE”) failed to provide the Student with a free appropriate public education (“FAPE”) for the 2021-22 school year (“SY at Issue” or “2021-22 School Year”). Ex.P- A. For the failure to provide the Student with a FAPE, the Parent requested funding for the 2021-2022 school year at REDACTED e (‘Private School”) commencing at the start of the school year on September 13, 2022, through February 28, 2022. Ex. A, Tr. at 73. More particularly, the Parent alleges that the DOE did not (i) act in a timely manner to convene a Committee on Special Education (“CSE”) meeting for the SY at Issue; (ii) develop an appropriate Individualized Educational Program (“IEP”) given the coupling of the Student’s disability and gifted intellectual capabilities and particularized needs; and (iii) place the Student in an appropriate program because Parent was repeatedly advised by the DOE that the REDACTED (Public School) did not have any open spots for the Student. Ex. P-A; Parent’s Brief (marked as IHO Ex.I, at 6-13. The Parent further alleges that the unilateral placement of the Student at the Private School at the start of the SY at Issue was appropriate and she is entitled to reimbursement. Ex. P-A; IHO Ex. I-Parents’ Brief, at 13-17.

The DOE originally disputed Parent’s contention that it denied Student a FAPE and offered testimony on its direct case to demonstrate a FAPE, but has now conceded that it did not provide a FAPE to the Student under Prong I of the Burlington-Carter analysis. Tr. at 28-29. Specifically, the Department of Education in its Closing Brief (marked as IHO Ex. II) stated: “The DOE is now conceding Prong I.” (IHO Ex. II-DOE Brief, at 2.) Rather, the Department of Education alleges the Parent failed to prove the unilateral placement of the Student at the Private School was appropriate and equitable and thus, failed to meet the Parent’s burden under Prong II. Alternatively, the DOE argues that “if the IHO is awarding tuition, the relief should be prorated from November 19, 2021 [the day after the November 18, 2021, IEP] until the end of February [2022], when [Student] left the [Private School].” The DOE contends that the earliest time period that the DOE had an obligation to provide a FAPE was November 19, 2021 because (i) the Student was not a resident of New York City (NYC) before August 4, 2021, (ii) the DOE did not receive Parent’s consent until September 22, 2021, and (iii) the DOE did not have an obligation to provide a FAPE while the Student was not a NYC resident and was permitted sixty (60) days to develop the IEP evaluation from the date of Parent’s written informed consent. The DOE contends that the Parent contacting the DOE in March 2021, several months in advance of Parent and Student moving to NYC alerting the DOE to the Student’s prospective move and requesting that an IEP be convened in advance of the 2021-22 School Year did not trigger the commencement of the 60-day period.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

PROCEDURAL HISTORY

On November 18, 2021, the DOE’s Committee on Special Education (“CSE”) classified the Student as having a disability classification of “Other Health Impairment” and an IEP was developed for the 2021-22 School Year. Ex. D-1. The Student’s classification and entitlement to special education programming is not in dispute. On December 28, 2021, the DOE provided Parent with a School Location Letter designating the Public School. Ex. D-6.

On July 11, 2022, a Due Process Complaint (“DPC”) was filed against the New York City Department of Education (“DOE”) by the REDACTED (“Law Firm”), as attorney for Parent (“Parent”) and on behalf of the Student, pursuant to the Individuals with Disabilities Education Act (“IDEA”, or the “Act”) [20 U.S.C. § 1415(f)] and Section 4404(1) of the New York State Education Law (“Education Law”). Ex. P-A. The DPC asserts that the DOE failed to provide the Student with a Free Appropriate Public Education (FAPE) by engaging in both procedural and substantive violations for the 2021-22 school year. Ex. P-A.

On July 25, 2022, I was appointed to hear this matter. On August 10, 2022, the resolution period ended. On September 8, 2022, a pre-hearing conference was held with representatives for both parties present.

On November 1, 2022, a merits hearing was held. It was a closed hearing, and Parents were represented by REDACTED, Esq. (“Parent Attorney”). The DOE was represented by, REDACTED Esq. (“DOE Attorney”). The DOE presented one witness: REDACTED, DOE school psychologist (DOE Psychologist) and member of the IEP team, and submitted documentary evidence in the form of exhibits D-1-14. Parent presented testimonial and documentary evidence. Parent submitted evidence exhibits P-A through P-N and presented three witnesses: Parent, REDACTED, Ph.D. (“Private Psychologist” who examined Student), and REDACTED (Teacher), Student’s science teacher and co-adviser at the Private School. Both parties submitted closing briefs attached as IHO exhibits I (Parent’s brief) II (DOE brief). A list of the documentary evidence in this proceeding is appended to this decision.

ISSUES

The issues to be addressed are (i) whether the District provided the Student a Fair Appropriate Public Education (“FAPE”); (ii) if there was a denial of a FAPE, the date that the denial of the FAPE occurred; (ii) whether the Parent is entitled to tuition reimbursement following Student’s unilateral placement in the Private School; and (iii) if the Parent is entitled to tuition reimbursement, the date from which the tuition reimbursement should begin.

FINDINGS OF FACT

• • Student’s Prior History During the fourth grade, on various dates in the Fall of 2018, Student received a psychoeducational evaluation conducted by REDACTED, PhD. Ex. P-E-1. The evaluation determined that Student is a Twice Exceptional (“2e”) child with an IQ in the 93rd percentile and two (2) gifted verbal reasoning abilities as well as Attention Deficit Hyperactivity Disorder (ADHD), with mixed symptoms of inattention, hyperactivity and impulsivity. Ex. P-E-15-16. There were some significant discrepancies noted in Student’s testing results, including relative personal weaknesses in visual spatial skills and attention and concentration. Ex. P-E-15-16. The evaluation documented that Student’s working memory fell in the 34th percentile, and was unusually lower than other areas of Student’s cognitive ability, resulting in a likely impact on Student’s ability to effectively follow instructions given orally by teachers or her mother, and may impact her social interactions as well. Ex. P-E-16. The Student also had significant weaknesses in listening comprehension (12th percentile). Ex. P-E-16. The evaluation found that: “[Student’s] advanced verbal reasoning abilities have enabled her to compensate for certain deficits thus far, in terms of her academic performance. However, as the complexity and demands of her academic work increase, she may not be able to effectively compensate for the impact of ADHS on her academic skills and she is at greater risk for underachievement and academic disengagement.” Ex. P-E-17. The evaluation recommended: “[Student] may benefit from a 504 Accommodation Plan because these conditions substantially limit her ability to accurately and efficiently complete work that is required of her which prevents [Student] from learning in a manner that is commensurate with [Student’s] abilities.” Ex. P-E-17.

During 2018-19 School Year (Student’s fourth grade year), Student received a Section 504 plan due to her challenges with attentional stamina, focus and distractibility. Ex. P-N-1.^[3]

On August 2, 2019, after completing the fourth grade, Student received an Occupational Therapy Evaluation (“OTE”) due to concerns with attention, distractibility, and sensitivity to tactile input. Ex. P-F-1. The OTE was conducted by REDACTED, MS, OTR/L, and references that Student demonstrates difficulties at school related to focus and attention. Ex. P-F-2. The OTE referenced the Student’s existing 504 Plan, indicating that Student is to have preferential seating, a chair with a band, frequent check ins by the teacher, repeated directions, non-verbal prompts to stay on task, extra time for assignment and multiple breaks. Ex. P- F-2. The OTE noted that Student demonstrates decreased bilateral coordination, integration of reflexes, body awareness, gravitational security, and visual motor integration, decreasing her ability to perform age-appropriate tasks and meet age-appropriate milestones. Ex. P-F-2. Further, the OTE noted that Student presents difficulty with processing auditory and tactile input, while demonstrating increased sensitivity to sensory input, which negatively impacts her ability to appropriately regulate emotional outbursts, follow age-appropriate verbal directions, and focus on tasks, decreasing her age-appropriate functional performance across relevant contexts. Ex. P-F-8. Twelve (12) sessions of OT at a frequency of one (1) per week were recommended. Ex. P-F-8.

In August 2020 (after completing the fifth grade), Student received an updated 504 Plan. Ex.P- N-1. At the time, Parent and Student were living in Colorado. Ex. P-N-1. According to the Parent, Student’s grades mostly met mastery of standards, however her work responsibility, ethics, and overall character fell to approaching standards. Ex. P-N-1.

• • Parent’s Request to Convene an IEP and Student’s Establishment of NYC Residence On March 28, 2021, the Parent contacted the DOE and advised that Student presently had a Section 504 plan, and would be moving to New York City and to request that an IEP meeting be held prior to the beginning of the 2021-22 School Year. Ex. P-J-2-3, Tr. at 72. Parent stated, “I am requesting that an IEP meeting be convened and an IEP be developed by the CSE when we arrive in NYC.” P-J-3. Parent wrote further that she was attaching a copy of the Student’s 504 plan, as well as Student’s most recent psychoeducational report and Occupational Therapy evaluation and consented to any other evaluations that the DOE deems necessary. Ex. P-J-3.^[4] On April 5, 2021, the DOE responded acknowledging receipt of the Parent’s correspondence about her plans to move to New York City, and further advised that “we cannot process your request until such time that you are residing here” and that she should “re-submit your request once you have established your NYC residence.” Ex. P-J-2, Tr. at 72.

On May 5, 2021, the Parent again contacted the District advising, “we are planning our move to NYC [and] our temporary residence beginning June 1 will be [NYC street address].” Ex. P-J-1. On May 6, 2021, the District advised, “Please contact us again once you are in residence as you will need to provide 2 proofs of address.” Ex. P-J-1.

On May 13, 2021, while Parent resided out-side of NY, Parent signed a contract with the Private School to enroll Student for the 2021-22 School Year. Tr. at 75; Ex. P-G-15. Parent testified that she signed the enrollment contract in May because she needed a backup in case the District was not able to provide Student with a school, and that she was advised by the Private School that she had until October 2021 to back out of the contract. Tr. at 76. The contract provides, “[t]his Enrollment Agreement can be cancelled by Parent upon written notice of withdrawal received by the School prior to October 15, 2021, if the Student enrolls in a class recommended by the Committee on Special Education, the Central Based Support Team of the New York City Department of Education, or the Student’s local school district in accordance with the Student’s Individualized Education Program (the “DOE Recommended Placement”). Ex. P-G-8.

On June 1, 2021, Parent and Student temporarily relocated to New York City. Ex. P-N-2.

In June 2021, Student received a neuropsychological assessment conducted by Private Psychologist. Ex. P-D-1. Private Psychologist’s assessment noted that Student is a bright and capable student with vulnerabilities in neurocognitive domains that are contributing to challenges in her development. Ex. P-D-2. Student was noted to struggle in areas of executive functioning, including working memory, arousal level, sustained attention span, rapid naming, inhibitory skills, balance of speed and accuracy, and verbal fluency. Ex. P-D- 2. The assessment further noted: “Weaknesses in these areas can have profound effects on school and social performance. For instance, poor verbal fluency and rapid naming can make it hard to quickly generate ideas and respond during social discussions or when called on without warning in class…” Ex. P-D-2-3. The assessment stated that Student has considerable difficulty with executive functions that are required for school success, including task initiation (starting work assignments, taking out materials, generating ideas), working memory (e.g., holding material in her mind, following multi-step instructions, completing mental manipulations and remembering to hand in work), planning organization, and task monitoring (e.g., work checking habits). Ex. P-D-3. Student also struggles with the social and emotional aspects of executive functioning. Ex.P- D-3. The report also noted that Student had difficulty managing transitions, tolerating change and flexibly problem solving. Ex. P-D-3. The report stated that Student was more reclusive than her peers, adults observed her to be more withdrawn and sadder than is typical, and that symptoms of inattention are common among individuals with attentional or depressive disorders. Ex. P-D-4. The report noted, moreover, Student exhibits significant negative emotionality and anxiety, which affects all aspects of her life, and that this level of emotional and behavioral distress is consistent with diagnosis of moderate to severe anxiety and depressive disorders. Ex. P-D-5. The report stated that Student might have difficulty interpreting ambiguous or contradictory information such as sarcasm, understanding why someone is upset, and understanding how her bluntness or opinions could affect others. Ex. P-D-5.

Private Psychologist diagnosed Student with Autism Spectrum Disorder, Social Anxiety and Major Depressive Disorder. Ex. P-D-11. Private Psychologist did not observe symptoms of ADHD (despite the prior documented history of ADHD), noting that her symptoms may be well-managed by her medication. Ex. D-11. Private Psychologist recommended Student’s placement in “a small, specialized school that provides a self-contained, small classroom environment with teachers who are specially trained to work with students with developmental differences and emotional needs.” Ex. D- 12. REDACTED noted: “[Student] needs a small class with a lot of individual attention and adult support in order to develop her skills. Otherwise, she will continue to feel lost and to struggle to keep up with her peers. Furthermore, given her struggles in the larger class size over the past several years, [Student] needs a smaller class size than can be provided in an Integrated Co-Teaching (ICT) environment. In that type of setting, [Student] would be unable to sustain her focus and to benefit from academic instruction.” Ex. P-D-12. Private Psychologist also recommended in-school counseling services in order to increase Student’s confidence and to develop coping skills for her anxiety and social vulnerabilities. Ex. P-D-13.

Private Psychologist testified at the hearing, explained the underpinnings of her report and expressed that the small classroom environment was recommended to make progress because Student needed a really small classroom environment where she could receive a lot of social-emotional supports. Tr. at 96-97 Private Psychologist testified that she had recommended against a general education ICT class in REDACTED June 2021 report because REDACTED would be overwhelmed by the kind of noise in an ICT, and needed individual support. Tr. at 98-99. She also recommended a self-contained classroom because it would not be appropriate for Student to be with students with lower IQs or more significant cognitive challenges in terms of like capacity for learning, because she does have a strong capacity for learning. Tr. at 99.

In July 2021, Parent stated she signed a contract to purchase an apartment in NY. Ex. N-2. The Parent did not offer any evidence of the purchase contract.

On August 4, 2021, Parent contacted the District to advise that she was in contract to purchase an apartment in New York City and provided the “permanent address” as of September 1, 2021. N-2; K-1. As of August 4, 2021, Parent and Student had moved from Colorado and were officially residing in New York City. P-N-2, Tr. at 72, 74.^[5] Parent does not recall when she provided the DOE with the requested proofs of address and what the proof entailed, although it was “probably when I had the deed, which was not until late October.” Tr. at 72, 80. She testified that the District rejected her proof that she was staying in a VBRO in June 2021.Tr. at 79-80.

At the end of August 2021, Parent states she contacted the Public School, had three telephone conversations with school representatives and was told that it was too late to enroll Student for the 2021-22 School Year, and was advised that Student needed to be enrolled before July. Ex. Tr. at 73-74, N-2.^[6]

Student attended the Private School from September 13, 2022 (the first day of school) until February 28, 2022. Tr. at 73, Ex. P-N-2. Parent placed Student in Private School because she had no IEP in place or placement as of the first day of school. Ex. P-N-2.

On September 1, 2021, the CSE sent Parent a “Referral for an Initial Evaluation”. Ex. D-2. On September 22, 2021, the District sent Parent a consent form to have Student evaluated by the CSE. Ex. P-N-2, Ex. D-3. On September 22, 2021, Parent granted consent. Ex. P-N-2, Ex. D-3. The District’s logs reflect: “Social History Interview done today with mother via phone, mother signed initial consent... “Ex. D-14-6. The DOE’s closing brief concedes that “[o]n September 22, 2021, a social history interview was conducted over the phone and parent signed the initial consent.”

On September 29, 2021, Parent received a notification that Student had been assigned to the Public School, Parent stated she contacted the school, and was advised that there were no open spots for Student. Ex. P-N-2.

On November 9, 2021, another consent was signed by the Parent. Ex. D-4; P-L The DOE Psychologist, and member of the IEP team, testified that it was her view that this was the starting date of the timeline for the DOE to complete the evaluation. Tr. at 59.

• • November 18, 2021- IEP On September 1, 2022, the DOE provided Parent with notice of a CSE meeting. Ex. D-2-1. The notices explained, “The Principal/CSE Chairperson has received a written referral from you requesting an evaluation to determine if your child has an educational disability and may require special education services. Ex. D- 2-1. It further noted that “[y]ou have the right to consent or to withhold consent to the initial evaluation of your child.” Ex. D-2-2. On November 18, 2022, a Committee on Special Education meeting was held. Ex. D-1, Tr. at 45. Parent attended the November 18, 2022, CSE meeting, along with members of the IEP team. P-N-2, Tr. at 46.

The CSE relied in part on the psychoeducational evaluation obtained by the Parent from 2018, the neuropsychological evaluation obtained by the Parent in June 2021 and a classroom evaluation at the Private School conducted on November 16, 2021. Ex. P-C-1, Tr. at 47. The classroom evaluation (Ex.D- 7) conducted at the Private School noted, inter alia, that (a) English: while Student offers an answer or participates in discussion without prompting, she rarely offers and answer independently, and sometimes needs a gentle reminder to look up at the lesson; (b) Math: while basic math computational skills are strong, new concepts/skills are not easily mastered, and she is sometimes unable to start a new class. Ex.P-C-3. The evaluation also noted that Student needs a lot of prompting to express her thinking by writing down her thoughts. She does not generally raise her hand or offer to contribute vocally. Core teachers need to remind Student about certain parts of a task as does not always address tasks with multiple steps and tends to forget certain details.” Ex. P-C-3, Tr. at 47. The classroom evaluation noted: “Her small class ratio 9:2, and frequent class wide movement breaks, did not support her need for support to stay engaged. The IEP also considered a social history evaluation conducted by the DOE, as well as the OTE obtained by the Parent. Tr. at 47.

The IEP notes that Student has been diagnosed with “Autism Spectrum Disorder, requiring level one support and without intellectual or language impairment, Social Anxiety Disorder, Major Depressive Disorder, and Attention Deficit/Hyperactivity Disorder, Combined Presentation, in partial remission, by history.” Ex. P-C-5. The IEP also noted Student’s anxiety. Ex. P-C-5. The Student’s disability classification was “other health impairment.” Ex. P-C, Tr. at 49.

The CSE recommended placement in an integrated co-teaching (“ICT”) classroom along with special education teacher support services (“SETSS”) in math and English language arts (“ELA”) and counseling services (1x30 individual and 1x30 group). Ex. P-C-22. DOE Psychologist and member of the IEP team, testified at the hearing. Tr. at 45. In DOE Psychologist’s view, the crux of the Student’s challenges were social emotional. Tr. at 49. The IEP’s recommendation was for Student to receive her services in an integrated co-teaching class. Tr. at 50. DOE Psychologist did not recommend a smaller setting than ICT because “she was a student who, from our discussion of her present levels, could have made progress in a small group with the counseling.” Tr. at 51. DOE Psychologist does not recall the IEP discussing Private Psychologist’s recommendation that the Student not be placed in an ICT, or that even in the small class size at the Private School that the Student was currently attending, difficulties in Student’s function were noted in the classroom evaluation. Tr. at 57, 58.

The IEP notes, “During the IEP meeting, parent relayed the following concerns: parent is concerned that the recommended special education program made by the IEP steam will have too many kids in the class. Parent stated that [Student] needs a very small class with a high-level curriculum. Parent is concerned that a large class [will] exacerbate Student’s depression and anxiety.” Ex.P- C-4, Tr. at 55.

D. Location Letter

On December 28, 2021, Parent received a school location letter, placing Student at the Public School. P-N-2, Ex.D-6. Parent states she contacted the Public School and was told that the school did not have any space for Student. P- N-3.

• • Private School The Private School recruits and teaches high-potential, gifted and twice-exceptional students with and without psychoeducational and neuropsychological evaluations and IEPs. Ex. P-H-1. The Private School follows a multisensory approach to learning that allows children who need to move to learn to engaged in occupational therapy or exercise to pull out for breaks. Ex. P-H-1. “Teacher” is co-advisor and Science teacher at the Private School, testified on behalf of the Parent. Tr. 108. Private School is a “2e school” with most of the students falling in that category. Tr. 113. Many of the students also have disabilities, including attention deficits. Tr. 113. Teacher taught Student in biology. Tr. 113. Teacher testified that at the beginning Student was quiet and did not appear interested, and the teachers tailored learning for her, and that she responded well. Tr. 114. Teacher testified that there were cycles were Student was withdrawn and other times were she did very well. Tr. 114. Student was out of school in January while she was hospitalized and returned in February 2022. Tr. 115. Student was given ELA, math and history projects while she was out of school. Tr. 115. For a time, the school was fully remote for two weeks after the holiday break due to a Covid outbreak, and that Student participated in the remote session. Tr. 116-17, 138, 146. Teacher observed Student being social with her friends. Tr. 118. Early in Student’s attendance at the Private School, Student may have her head down during September and Teacher was not sure Student was paying attention. Tr. 119. Student advised that she was bored, and Teacher provided Student with projects to do, and Student liked that, and there was a time when Student was very productive. Tr. 119. Teacher would sit with Student one-on-one at times and advise Student that she was doing a great job. Tr. 120. Teacher found that initially Student was on grade level, and there were times when she was performing above grade level. Tr. 120. Teacher discussed Student’s schedule (Ex.P- I), and testified that it included organizational skills. Tr. 122. Student’s class size was 6 students for Science, Math and ELA, and 10 students for homeroom. Tr. 124-25, 127. The small class size permitted Teacher to have one-on-one conversations with Student during class on numerous occasions. Tr. 127. As a result of those one-to-one interactions, Student would take the lead of a group of 2-3 other students. Tr. 136. Teacher testified that Student progressed as a result of the one-on-one interactions, and he saw that she was happy and that he had buy-in from her as to the projects she was doing. Tr. 130. The teachers would meet as a team every week to discuss the students, including Student. Tr. 134. Teacher testified that there was growth from Student in cycles. Tr. 139. Student received counseling once per week for 30 minutes. Tr. 141.^[7]

Parent testified that Student did well academically and socially at Private School. Ex.P N-3. According to Parent, Student’s executive functioning improved, as she improved in her organization and ability to self-start. Ex.-P-N-3. She did well socially, for the first time in her life she had friends, and her grades improved. Ex. P-N-3. She turned in her assignments more than she had previously. Ex. P-N-3. Unfortunately, Student suffered mental health issues and was hospitalized in January 2022 for self-harm, and later left the Private School for in person treatment at the end of February 2022. Ex. P-N-3. Parent did not request OT therapy at the Private School, as it was weaved into the gym class. Tr. 156.

Private Psychologist testified that the Private School, in her opinion, would be an appropriate fit for Student because it uses small classrooms, has many students with autism and other social communication challenges, and they also provide Dialectical Behavior Therapy, which specifically teaches emotion regulation, distress tolerance, interpersonal effectiveness skills, which were all areas where Student struggled. Tr. at 100.

The Parent testified that she paid tuition of $40,000 for the Private School toward the total of $45,650.35 pro rated to reflect the Student’s early withdrawal, and that there is an outstanding balance of $5,650.35. Ex. P-N-2.

CONCLUSIONS OF LAW

• • Burden of Proof The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. Educ. Law § 4404(1)(c)^[8]; see also R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012). The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).
• • Free Appropriate Public Education The IDEA and the New York State Education Law provide that children with disabilities are entitled to a Free Appropriate Public Education (FAPE). 20 U.S.C. § 1400 (d)(1)(A); Educ. Law §§ 4402(2)(a), (b)(2). Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are: (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive Individualized Education Plan (IEP). 20 U.S.C. §§ 1401(9), (29); see also Bd. Of Educ. Of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-207 (1982).

A school district has offered a student a FAPE when: (i) the board of education complies with the procedural requirements set forth in the IDEA; and (ii) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-07. "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.'" Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206; see also T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009).

To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017). As the Supreme Court has stated, “After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement” (citing §§ 1414(d)(1)(A)(i)(I)–(IV)). Id.

“Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not." R.E., 694 F.3d at 190-191. Not all procedural errors, however, render an IEP defective and warrant relief. See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). If procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012).

School districts are obligated to provide the special education services listed in a student’s IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d) (“FAPE means special education and related services that... [a]re provided in conformity with an individualized education program (IEP) that meets the requirements of §§ 300.320 through 300.324”). School district actions that constitute a “material failure of implementing the IEP” deny a FAPE. See A.P. v. Woodstock Bd. Of Educ., 370 Fed. Appx. 202, 205 (2d Cir. 2010) (citing Van Duyn ex. Rel. v. Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821 (9th Cir. 2007) (“A material failure occurs when the services provided to a disabled child fall significantly short of those required by the IEP”).

• • “Child Find” Obligations The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made. See Handberry v. Thompson, 446 F.3d 335, 347-48 (2d Cir. 2006); E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 (S.D.N.Y. Nov. 26, 2012); A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 (D. Conn. 2008), aff'd, 370 Fed. App'x 202 (2d Cir. Mar. 23, 2010); see also 20 U.S.C. § 1412(a)(3)(A); 34 CFR 300.111; 8 NYCRR 200.2(a)(1), (7)). The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services." See 20 U.S.C. § 1412(a)(3); 34 CFR 300.111(a)(1)(i); Forest Grove, 557 U.S. at 245; K.B. v. Katonah Lewisboro Union Free Sch. Dist., 2019 WL 5553292, at *7 (S.D.N.Y. Oct. 28, 2019); E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412(a)(10)(A)(ii); see also 8 NYCRR 200.2[a][1], [7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 (N.D.N.Y. 2004).

The "child find" requirements apply to "children who are suspected of being a child with a disability... and in need of special education, even though they are advancing from grade to grade" (34 CFR 300.111(c)(1); see 8 NYCRR 200.2(a)(1), (7); D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 (3d Cir. 2012); J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 (S.D.N.Y. Nov. 18, 2011). To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children. See 34 CFR 300.111(a)(1); 8 NYCRR 200.2(a)(1), (7). Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005) (noting that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"); see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability." See J.S., 826 F. Supp. 2d at 660; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ., State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 (D. Haw. 2001).

To support a finding that a child find violation has occurred, school officials must have "overlooked clear signs of disability" and been "negligent in failing to order testing,” or have "no rational justification for deciding not to evaluate" the student. See Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 (2d Cir. 2018), quoting Bd. of Educ. of Fayette County, Ky. v. L.M., 478 F.3d 307, 313 (6th Cir. 2007); see A.P., 572 F. Supp. 2d at 225. States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over identification and to assist students without an automatic default to special education." See Los Angeles Unified Sch. Dist. v. D.L., 548 F. Supp. 2d 815, 819 (C.D. Cal. 2008), citing 20 U.S.C. § 1400(c)(5)). Additionally, a school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's response to intervention program (8 NYCRR 200.4[a]), see also 8 NYCRR 100.2[ii]). The remedy for such a child find violation would typically be an order for the student to be evaluated. See Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 (D.D.C. 2018) (noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school").

• • Timing of Development of an IEP A parent may make a referral to the CSE for an evaluation. 8 NYCRR 200.40(a)(1)(i). The New York State regulations, 8 NYCRR 200.40 (“Procedures for referral, evaluation, individualized education program (IEP) development, placement and review”) provide in relevant part:

- (a)(2)(ii) “A written request for referral of a student for an initial evaluation made to the school where the student resides or legally attends or is eligible to attend shall, if received by the building administrator or any other employee of the school, be forwarded to the committee chairperson immediately upon its receipt.”

- (a)(2)(iv) “Upon receipt of a request for a referral that meets the requirements of subparagraph (iii) of this paragraph, the school district shall, within 10 school days... request parent consent to initiate the evaluation... [t]he date of receipt of a referral means the date on which either the committee chairperson or the building administrator receives the referral, whichever is earlier.”

- (b)(1) “Unless a referral for an evaluation submitted by a parent or a school district is withdrawn pursuant to paragraph (a)(7) or (9) of this section, after parental consent has been obtained or a parental refusal to consent is overridden, an individual evaluation of the referred student shall be initiated by a committee on special education. The initial individual evaluation shall be completed within 60 days of receipt of consent unless extended by mutual agreement of the student's parents and the CSE pursuant to subparagraph (7)(i) and paragraph (j)(1) of this subdivision. The individual evaluation shall include a variety of assessment tools and strategies, including information provided by the parent, to gather relevant functional, developmental and academic information about the student that may assist in determining whether the student is a student with a disability and the content of the student's individualized education program, including information related to enabling the student to participate and progress in the general education curriculum (or for a preschool child, to participate in appropriate activities).”

-(b)(7) “The initial evaluation to determine if a student is a student with a disability must be completed within 60 days of receiving parental consent for the evaluation.”

-(e)(1) "Within 60 school days of the receipt of consent to evaluate for a student not previously identified as having a disability... the board of education shall arrange for appropriate special programs and services."

• • Parents’ Private Placement Parents who think that their child is not receiving a FAPE may pay for private services and seek reimbursement from the school district for “’expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.'" M.H. v. New York City Dep't of Educ., 685 F.3d 217, 246 (2d Cir. 2012) (quoting, T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir.2009) (quoting Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 370-71, (1985)). In making a claim for reimbursement, "the burden shifts to the parents to demonstrate that the school in which they have chosen to enroll their child is appropriate." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007); M.H., 685 F.3d at 245. The parent has the burden of proving that the unilateral placement provided “educational instruction specifically designed to meet the unique needs” of the student. Gagliardo, 489 F.3d at 112. Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000).

The “same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement. [T]he issue turns on whether a placement – public or private – is ‘reasonably calculated to enable the child to receive educational benefits.’” Gagliardo, 489 F.3d at 112 (quoting Frank G. v. Bd of Educ., 459 F.3d 356, 364 (2d Cir. 2006)). A private placement meeting this standard is one that is “likely to produce progress, not regression.” Gagliardo, 489 F.3d at 112 (quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]).

Parents are, therefore, not barred from reimbursement even where a private school they choose does not meet the IDEA definition of a FAPE. Frank G., 459 F.3d at 364. In satisfying their burden, Parents need not show that the private placement: (i) meets state education standards or requirements; (ii) provides certified special education teachers; or (iii) provides for an IEP. Id. (citing Florence County Sch. Dist. Four v. Carter, 520 U.S. 7, 14 [1993]). “IDEA's requirement that an appropriate education be in the mainstream to the extent possible... remains a consideration that bears upon a parent's choice of an alternative placement and may be considered by the hearing officer in determining whether the placement was appropriate.” M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 105 (2d Cir.2000) (citing 20 U.S.C. § 1412(5)(B)) (emphasis added). However, parents “’may not be subject to the same mainstreaming requirements as a school board.’” Frank G. v. Bd. of Educ., 459 F.3d at 364 (quoting M.S., 231 F.3d at 102. see also C.L. v. Scarsdale Union Free Sch. Dist., 744 F. 3d 826, 837 (2d Cir. 2014) (“[P]arents whose children are denied a FAPE may be and often are forced to turn to specialized private schools that educate only disabled children.”).

The Second Circuit has explained that whether the placement is “reasonably calculated to enable the child to receive educational benefits” is determined by a consideration of the “totality of circumstances”:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

Gagliardo, 489 F.3d at 112 (quoting Frank G. v. Bd of Educ., 459 F.3d at 364-65).

A school district may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the District were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); see also Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. Burlington, 471 U.S. at 370-71; Gagliardo, 489 F.3d at 111. "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148). Compensatory education is an available equitable remedy to make up for denial of a free and appropriate public education. P. v. Newington Bd., 546 F.3d at 111, 123 (2d Cir. 2008). A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. Carter, 510 U.S. at 7 Burlington, 471 U.S. at 369-70.

• • Equitable Considerations To receive an award of tuition reimbursement associated with a private school program, a weighing of the equities must support that award, as “equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief” (Frank G., 459 F.3d at 363-64; 20 U.S.C. § 1412[a][10][C][iii]). When a school district fails to provide a student with a FAPE and the private placement is found to be appropriate, “the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief” (Gagliardo, 489 F. 3d at 112, citing Carter, 510 U.S. at 16). “A major consideration... is whether the parents have cooperated [with the school district] throughout the process to ensure that their child receives a FAPE” (N.R. ex rel. T.R. v. Dept. of Educ., 2009 WL 874061, at *6 (S.D.N.Y. 2009) (citation omitted). Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting before their removal of a student from public school, or by written notice ten business days before that removal. See 20 U.S.C. §1412(a)(10)(C)(iii)(I) and 34 CFR 300.148(d)(1).

ANALYSIS

• • District’s Failure to Provide A FAPE In its closing brief (Ex.IHO-2), the DOE stated: “The DOE is now conceding Prong I.” IHO Ex.II-DOE Closing Brief, at 1.
• • Parent’s Unilateral Placement at the Private School Given the District’s failure to meet its burden of proof to demonstrate a FAPE, the next issue to determine is whether the Parent’s unilateral placement of the Student at the Private School was appropriate. I find for the following reasons that the Parent met her burden of proof that the unilateral placement was appropriate.

The question of whether Private School was an appropriate unilateral placement is principally determined by analyzing whether the Attending School provided "educational instruction specially designed to meet the unique needs of [the student]" (Rowley, 458 U.S. at 188-89; see Gagliardo, 489 F.3d at 115; Frank G., 459 F.3d at 365). A review of the hearing record establishes that the evidence submitted by the Parent in this case was sufficient to identify the Student's unique individual needs and to satisfy the Parent’s burden to establish the appropriateness of the Student's unilateral placement at Private School for the 2021-22 school year.

The placement in the Private School was reasonably calculated to enable the Student to received educational benefits because it recruited and catered to high potential, gifted and twice exception students with and without psychoeducational or neuropsychological evaluations and IEPs. P-H-1. The Private School offered the small class size recommended in Private Psychologists’ evaluation as Student was in class size of 6 students for academic subjects (with one teacher) and 10 students for homeroom (with two teachers). Parent and the Student’s Private School Teacher testified that they had observed that the Student was making progress at the Private School, was performing at or above grade level, and took on leadership roles with other students. Student’s progress report provided in January 2022 showed grades, on a 4-point scale of 3.35 for Achievement and 3.36 for Effort. Ex.P- M-2. The narrative provided by the Private School showed that Student “became more confident with participating and advocating for herself” and “showed increased proficiency in various executive functioning skills.” The overall report demonstrates educational benefit. Ex. M-2. All of the witnesses agreed that the Student’s Social-Emotional wellbeing were critical, and both the Private School Teacher and Parent observed to be socially engaged and to have friends. Private Psychologist opined that that Private School was calculated to benefit Student because of the small class size and because it provided Dialectical Behavior Therapy, which specifically teaches emotion regulation, distress tolerance, interpersonal effectiveness skills, which were all areas where Student struggled. While Student’s mental health issues negatively impacted her attendance in January and February, during the time she attended in the Fall, and at times in January and February, the record evidence established that Student was receiving educational benefits. Student was also benefitting during the time Student was receiving remote educational services.

The hearing record does not demonstrate that the Parent “acted with the requisite level of unreasonableness or misconduct that reimbursement should be denied on equitable grounds” (Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ., 550 F. Supp 2d 420, 437 (S.D.N.Y. 2008). There is no evidence that the Parent prevented the District from providing the Student with a FAPE for the 2021-22 school year. To the contrary, the hearing record establishes that the Parent cooperated with the CSE. Here, the Parent contacted the DOE in August 2021, requesting that a CSE meeting be held for the upcoming 2021-22 School Year. The Parent attended the November 18, 2022 IEP meeting, provided her privately funded evaluations and expressed her concerns over a large ICT class.

The services offered by the District were inadequate or inappropriate, including but not limited to for the reason that there was no available spot for Student at the Public School after the IEP, including following the December 28, 2021 Location Letter (Ex.D- 6). Thus, the Parent’s selection of the Private School was appropriate.

• • Consideration of the Equities and Reimbursement Amount The Parent acted reasonably and equitably and cooperated with the District in the IEP process. The equitable considerations support the Parent’s request for reimbursement. I find that the reimbursement should run, however, from October 13, 2021, which is the date that the DOE denied a FAPE and coincides with the earliest date that the DOE was obligated to provide a FAPE under 8 NYCRR 200.40.

The Parent reasonably cooperated with the DOE. The Parent initially reached out to the DOE in March 2021 (while she was still residing in Colorado), requesting that IEP be developed in advance of the 2021-22 School Year and providing her “consent” for evaluations. This was not informed consent under the NYCRR, nor was this effective, because the Parent was residing in Colorado. Additional correspondence between the Parent and the DOE was exchanged on April 5, May 5 and 6, and August 4, 2021. The Parent’s April 5 correspondence provided the DOE with notice of a “temporary residence” in NYC as of June 1, 2021. The Parent’s August 4, 2021 correspondence provided the DOE with the “permanent” NYC address of the Student as of September 1, 2021. Although there was correspondence before August 4, 2021, the operative date to run the time period for an IEP to be developed is August 4, 2021, when the Parent established a NYC residence.

While I discuss further below the issue of when reimbursement should commence, this correspondence reflects the Parent’s cooperation in the IEP process, and to have the process commenced as soon as possible upon establishing a NYC residence. According to the Parent, it provided the DOE with the 504 Plan, 2018 psychoeducational evaluation and OTE in March 2021 as an attachment to her email correspondence. The Parent, moreover, later (after moving into NYC) made her privately obtained evaluations available to the IEP team, and the IEP team relied on those evaluations in finding the Student to having a disability. The Parent attended and participated in the November 18, 2021, IEP meeting.

Equities favor the Parent, moreover, because the Parent’s testimony that she contacted the Public-School multiple times is not rebutted and relevant to equitable considerations and the reasonableness of the Parent’s action. The Parent was specific in her testimony as to the contacts she initiated with Public School, and responses from the Public School, and that she was repeatedly advised that there was no spot available for the Student at any relevant time. The DOE did not present a witness from the Public School. Thus, the record establishes that the DOE did not at any time provide an available placement for the Student and the Parent acted reasonably in placing the Student in the Private School in September 2021 so that the Student had a school to attend.

The signing of an enrollment agreement in May 2021 does not demonstrate that the equities should shift away from the Parent. The Parent’s concerns that she have a backup in place were reasonable, and, in hindsight, proven to be validated, because the District did not provide a FAPE, including the lack of a placement for the Student in the Public School. The contract further provided that it could be cancelled upon notice prior to October 15, 2021, and, whatever, the terms of the contract the Parent testified that she thought she could back out. Parent testified that had the DOE offered an appropriate program and school, she would have enrolled Student in a public school. P-N-3. The signing of the contract in May 2021, given the terms and Parent’s understanding of the terms, does not indicate that the Parent acted inequitably or with intent not to cooperate in the IEP process.

Lastly, the DOE conceded that the Parent participated in the IEP process. DOE Closing Brief, at 6 (“While the DOE acknowledges that [Student’s] family participated in the IEP process and communicated with the CSE, the Department respectfully maintains that equitable considerations favor the DOE.”) Thus, the Parent met her burden of demonstrating that she cooperated with the IEP process.

Although reimbursement for the Parent is equitable, the parties have disputed when the reimbursement may begin. The Parent’s argument that the 10-school day and 60-day periods set forth in 8 NYCRR 200.40 runs from March 28, and prior to establishing August 4, 2021, residence in NYC, is contrary to the regulations that the obligation to provide a FAPE applies to Students who are residents of New York City. IHO Ex.I-Parent’s Closing Brief at 7. Thus, the 60-day statutory time period the CSE had to develop an IEP for the Student had not yet expired when the Student began in the Private School on September 13, 2021.

The District requests, on the other hand, that despite the admitted denial of a FAPE, and in the event of a IHO finding that the Parent is entitled to reimbursement, no reimbursement should be awarded for the time period prior to November 18, 2021 citing to the 60-day period set forth in 8 NYCRR 200.4(b)(1) to conduct and evaluation and Board of Educ. of Garrison Union Free Sch. Dist. v. Greek Archdiocese Inst. of St. Basil, 18 N.Y.3d 355 (2012) (limiting obligation to provide a FAPE to residents). According to the DOE’s argument, the 60-day period set forth in 8 NYCRR 200.40 (b)(1) began to run on September 22, 2021, when the Parent signed the DOE’s form of informed consent. IHO Ex.II-DOE Closing Brief, at 1, 6. (The DOE does not set forth its calculation, and 60 days after September 22, 2021, is November 21, 2021- Sunday (not November 18, 2021-Thursday)). Neither of these citations, however, supports limiting reimbursement to the period only on or after November 18, 2021.

The School District’s obligation to commence the IEP process arose on August 4, 2021, when Parent advised that she had a contract establishing a permanent NYC residence as of September 1, 2021, and was presently residing in the District. The DOE conceded that the Parent was residing in the District as of August 4, 2021 (IHO Ex.II- DOE Closing Brief, at 1) and the evidence supports this date as the date of NYC residence. In its Closing Brief, the District also conceded that the initial case referral was made on August 4, 2021, by the Parent. Closing Brief, at 8. The District had an obligation to commence the IEP process upon the Student establishing a NYC residence (from out of State), including as part of its Child Find obligations, and the Parent’s referral.

It did not, however, immediately do so. The September 1, 2021 notice refers to the Parent as making the referral which became effective on August 4, 2021 when she was residing in New York City. The DOE’s reliance on the regulations notwithstanding, there is no evidence that the District initiated obtaining informed consent from the Parent within the 10- school day period after August 4, 2021. The notice of the CSE convening is dated September 1, 2021, and the various consent forms offered by the District (dated September 22, 2021, and November 9, 2021) are outside the 10- school day period running from August 4, 2021. The District did not offer any explanation for not seeking to obtain consent within this 10-school day time period, nor explain why the initial CSE referral was not made until September 1, 2021.

No reimbursement obligation arose until October 13, 2021, the date that a denial of FAPE occurred. This is the earliest date that the FAPE was denied because that was the earliest date for the District to comply with their obligation to provide a FAPE given the Parent’s NYC residence and referral as of August 4, 2021. The DOE committed procedural violations on: (i) 10 school days after August 4, 2021 (i.e., August 14); and (ii) 60 days thereafter (i.e., October 13). No explanation was offered as to why the DOE’s location letter was not sent on October 13, 2021 and did not go out until December 28, 2021. Furthermore, there was no placement for the Student at the Public School designated by the DOE. The DOE stated they reached out to the Public School but could not get anyone to come in and testify at the hearing. For these reasons, a delay in the start of reimbursement until November 18, 2021, is not warranted. See SRO No. 20-11,a t 7 (“While the district is correct in that the date of the parents’ informed consent triggers the 60-day timeline by which to complete the initial evaluation and 60-school day timeline to arrange for appropriate special programs and services (8 NYCRR 200.4[b], [d], [e] [1]), the district cannot rely on this timeline because it failed to document any reason for the two and half month delay in obtaining consent”). No reimbursement is appropriate for the time period prior to the denial of the FAPE on October 13, 2021, however, because a parent who rejects a school district’s IEP and chooses to unilaterally place their child at a private school without consent or referral by the school district does so at their own financial risk. See Burlington, 471 U.S. at 373-374.

Parent gave the DOE ten business days’ notice as required by 20 U.S.C. § 1412(a)(10)(C)(iii)(I) and 34 CFR 300.148(d)(1) that it was placing Student in the Private School. (Ex. P-B). The ten-day notice was provided on August 24, 2021, and the Student did not begin in the Private School until September 13, 2021. The ten-day notice informed the CSE that absent an appropriate IEP and placement, the Parent would place Student at a Private School for the 2021-22 school year and seek DOE funding for the placement. (Ex. P-B). As this ten-day notice was sent to the DOE on August 24, 2021, well before the CSE’s statutory period of 60 days to develop an IEP for the Student had expired. As noted above, therefore Parent bore the financial risk for the tuition of the Private School for any monies not being reimbursed or funded by the DOE. There is nothing in the record to indicate that the amount of tuition sought by the Parent is unreasonable. Based on the foregoing, the Parent has met the third prong of the Burlington/Carter Test, as a weighing of the equities supports an award of tuition funding and/or reimbursement to the Parent from October 13, 2021 until February 28, 2022.

The hearing record establishes that the Parent incurred an obligation to pay tuition to the Private School in the aggregate amount of $45,650.35. Ex. P-G; N-3. The Supreme Court has indicated that “[c]ourts fashioning equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required”, and that “[t]otal reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable” (Carter, 510 U.S. at 16). Here, the Private School’s tuition is not unreasonable. See Mr. and Mrs. A. ex rel. D.A. v. New York City Dept. of Educ., 769 F. Supp. 2d 403, 429 (S.D.N.Y. 2011) (determining that the private school tuition was not unreasonable in light of the education and related services the school provided). Tuition funding paid directly to a private school is justified where parents have satisfied the Burlington/Carter Test. E.M. ex rel. N.M. v. New York City Dept. of Educ., 758 F. 3d 442, 452-454 (2d Cir. 2014); Mr. and Mrs. A., 769 F. Supp. 2d at 427. Accordingly, the Student’s Parent is entitled to an order directing the DOE to fund her tuition obligation from October 13, 2021, through February 28, 2022.

ORDER

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

1. ORDERED, that the DOE failed to provide a FAPE to the Student for the 2021-2022 School Year;

2. ORDERED, that the DOE shall, within 5 days of this order, assign an individual from its Impartial Hearing Order Implementation Unit (IHOIU) to serve as a contact person for the Parent regarding the implementation of this Order. The IHOIU contact person shall provide their name, direct phone number, and email address to the Parent and the Parent’s attorney within 3 days of the date of this order. The contact person shall respond to any inquiry by the Parent (or her attorney) concerning the implementation of this order within 2 business days.

3. ORDERED, that the DOE shall fund the Student’s tuition to Private School for the 2021-22 School Year, from October 13, 2021 through February 28, 2022 including reimbursement to Parent for all monies paid to date; such funding shall consist of reimbursement to the Parent and/or direct payment to Private School within 15 days of Parent submitting proof of payment of tuition to the District or proof of balance owed to Private School.

SO ORDERED.

DATED: January 20, 2023

Mercedes Cesaratto

(signed electronically)

Mercedes Cesaratto

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

APPENDIX A – REDACTION IDENTIFICATION PAGE

Student’s Name: REDACTED Enter name.

Date of Birth: REDACTED

School District: REDACTED

Parent’s Name: REDACTED

DOE Psychologist: REDACTED

Private Psychologist: REDACTED

Private School: REDACTED

Private School Teacher: REDACTED

DOE Attorney: REDACTED

Parent Attorney: REDACTED

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Exhibit Number

Date

Exhibit Name

Number of Pages

A

07/11/2022

Impartial Hearing Request

6

B

08/24/2021

10-Day Letter

1

C

11/18/2021

IEP

29

D June 2021 Neuropsychological Evaluation 28

E Various dates Psychoeducational Evaluation 19

F 08/02/2019 Occupational Therapy Evaluation 13

G May 2021 Enrollment Contract 16

H 2021-2022 The [REDACTED] School Program Overview 3

I 2021-2022 Class Schedule 1

J Various dates Email Exchange Between Parent and REDACTED 3

K 08/04/2021 Email from Parent to REDACTED 1

L 11/09/2021 Consent for Evaluation 2

M Sept. 2021-Jan. 2022 Progress Report 23

N 10/28/2022 Affidavit of Parent REDACTED 3 DOE’S EXHIBITS # Document Date Pages 1 Individualized Education Program 11/18/2021

30

2

Initial Referral

9/1/2021

6

3

Consent for Evaluations

9/22/2021

1

4

Consent for Evaluations

11/9/2021

2

5

School Assignment Form

9/29/2021

3

6

Prior Written Notice

12/28/2021

8

7

Classroom Observation

11/15/2021

3

8

Social History

9/22/2021

3

9

Vocational Interview

9/22/2021

3

10

Occupational Therapy Evaluation

10/8/2021

16

11

Teacher Report

11/16/2021

3

12

Neuropsychological Assessment

6/22/2021

28

13

IEP Attendance Page

11/18/2021

1

14

SESIS Events Log

2021-2022

6

IHO’S EXHIBITS

Exhibit

Document

Date

Pages

IHO-1

Parent’s Closing Brief

12/2/2022

18

IHO-2

District’s Closing Brief

12/2/2022

9

Footnotes

[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.

[3] Parent’s direct testimony was through her affidavit. Ex. P- N. At the November 1, 2022, hearing, Parent was available for and subject to cross-examination by the DOE.

[4] The attachments to the email, including the 504 Plan were not offered into evidence; however, I find based on the record that a 504 plan was in place commencing in the fourth grade. See Ex. N-1, F-2.

[5] Parent testified that she spent the entire month of June in NYC. Tr. at 79. She further testified: Well, we came in July to find an apartment. We found an apartment, made an offer, and then we came back and stayed in hotel around August 4th, until we moved in, into our apartments September 1st, but then we were kind of just renters until it closed. Tr. at 74.

[6] The District did not call any witnesses to rebut the Parent’s affidavit. Specifically, in its witness disclosure, the DOE listed a representative of the [REDACTED] Street School (Public School). At the hearing, however, the DOE stated, “I had reached out to the REDACTED School several times, but I did not hear back any confirmation about appearing at today’s appearance. That’s why I don’t have a witness available for today’s hearing.” Tr. at 157.

[7] This was the level of counseling recommended in the IEP, although REDACTED recommended more frequent counseling. REDACTED opined that the one time per week in individual and one time a week for 30 minutes group would not be sufficient for Student, given her level of anxiety and depression. Tr. at 103.

[8] “The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing, except that a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” Educ. Law § 4404(1)(c).