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Special Education Law
DECISIONParent PrevailedIHO Case No. 228915

New York City Department of Education, Impartial Hearing Decision

January 23, 2023·Mercedes Cesaratto·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 576209- NYC: 228915

FINDINGS OF FACT AND DECISION

Case Number: 228915

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 12, 2022

Date(s) of Hearing: November 2, 2022

Actual Record Closed Date: January 23, 2023

Date of Decision: January 23, 2023

Hearing Officer: Mercedes Cesaratto

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 2, 2022

For the Student:

REDACTED, Esq.

REDACTED, P.C.

REDACTED - Parent

REDACTED Director of Private School

For the Department of Education:

REDACTED, Esq.

INTRODUCTION

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about July 12, 2022 (P-A).[2] The Parent alleges that the New York City Department of Education (“DOE”) failed to provide the Student with a Free Appropriate Public Education (FAPE) for the 2022-23 twelve-month school year (“SY at Issue” or “2022-223 School Year”). Ex. P-A. For the failure to provide the Student with a FAPE, the Parent is requesting direct funding and/or reimbursement for the 2022-2023 school year at the REDACTED (“Private School”); transportation for the Student to and from the Private School; and funding for triennial evaluations in areas of suspected need, including neuropsychology, speech and language therapy, occupational therapy, assistive technology, and psychological. Ex. P-A.

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 July 12, 2022, a 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 FAPE by engaging in both procedural and substantive violations for the 2022-2023 school year. Ex. P-A.

I was appointed to hear this matter on July 26, 2022. A pre-hearing conference was held on September 14, 2022, a Status hearing was held on October 13, 2022. The Department agreed to Student’s pendency placement at the Private School, including his transportation services, on September 14, 2022. Ex. P-E. However, Parent alleges transportation has not been provided to the Student.

The merits hearing was held on November 2, 2022. It was a closed hearing, and Parent was represented by REDACTED, Esq. (“Parent Attorney”). The DOE was represented by REDACTED, Esq. (“DOE Attorney”). The DOE did not offer any evidence or present any witnesses and conceded that the Student was not provided with a FAPE for the 2022-2023 SY. The DOE did not defend the allegation that it failed to provide the Student with a FAPE (Tr. 14-15) The DOE, however, maintains that Parent’s unilateral placement was not appropriate and that the equities do not favor the Parent. Parent presented testimonial and documentary evidence. Parent submitted exhibits P-A through P-U which were admitted into evidence without objection from the DOE. In addition to the documentary evidence, Parent submitted two witness affidavits in lieu of direct testimony and presented both witnesses for cross examination: Parent, and REDACTED (“Director”) for Private School. Both parties submitted closing briefs attached as IHO exhibits. A list of the documentary evidence in this proceeding is appended to this decision.

ISSUES

The issues to be addressed are whether (i) the District met their burden in providing the Student with a FAPE for the 2022-2023 SY (under Prong I); (ii) the Parent demonstrated that the unilateral placement at the Private School is an appropriate placement for the Student (under Prong II); (iii) the equities favor the Parent and tuition reimbursement/direct funding of the Private School tuition is an appropriate remedy (under Prong III).

FINDINGS OF FACT

Student’s Prior History The DOE’s Committee on Special Education (“CSE”) classified the REDACTED -year-old Student as having a disability classification of “Autism”, the Student’s classification and entitlement to special education programming is not in dispute. The Student has been diagnosed with Autism Spectrum Disorder (“ASD”); Attention Deficit Hyperactivity Disorder, combined presentation (“ADHD”) without accompanying intellectual impairment but with accompanying language impairment- Level 2 (Requiring substantial support); Generalized Anxiety Disorder, Learning Disorder with impairment in Reading - Severe, Learning Disorder with impairment in Written Expression - Severe, and Learning Disorder with impairment in Mathematics - Severe. Ex. P-C; P-F Student also presents with language delays that prevent him from clearly expressing himself and understanding others. Ex. P-O. In addition, the Student presents with social and emotional challenges that interfere with his ability to learn, as well as with extreme self-stimulatory, self-directed, and aggressive maladaptive behaviors. Ex. P-M, P-P, P-T, P- U. In 2015, the DOE placed the Student in a Prior School that catered to students in the Autism spectrum and utilized applied behavior analysis (ABA) Ex. P-F; P-U. However, Parent testified that the staff at Prior School was unable to appropriately address the Student’s emotional and behavioral needs and the Prior School would frequently call emergency services or remove Student from the school all together. Ex. P-F; P-U. The Parent felt the Prior School was not an appropriate placement for the Student as the Student’s behaviors deteriorated and Student was not progressing. Ex. P-F; P-U After a period of home instruction, an independent neuropsychological evaluation was conducted in July of 2018, when the Student was in the REDACTED grade. Ex. P-F. The results of this evaluation concluded that Student required a program that provides “emotional, behavioral and academic support using best practices for students with ASD”. Ex. P-F. The Parent provided this evaluation to the Department upon receipt. The Parent began to research for an appropriate school to address Student’s needs. Ex. P-U. In 2018, the Parent located Private School and Student began attending in April for the 2018-2019 school year. Ex. P-U.

For the current 2022-23 school year, the Department held an individualized education program (“IEP”) meeting for Student on June 15, 2022. Ex. P-C. However, the Parent alleges that the Department did not provide the Parent with a copy of this 2022 IEP until after the start of the 2022-23 school year, on July 29, 2022. Ex. P-H; P-U. The Department’s 2022 IEP recommended Student be placed at a DOE Specialized School or REDACTED (“D75”) placement for the 2022-23 school year. Ex. C-26. Parent alleges the Department failed to adhere to their own regulations and failed to recommend a specific school placement for Student prior to June 15, 2022. As a result, on June 16, 2022, the Parent sent a letter to the Department notifying the Department that he intended to re-enroll Student at Private School for the 2022-23 school year absent an appropriate recommended placement from the Department. Ex. D.

Private School

As a result of a prior hearing, Student received an independent neuropsychological evaluation in July 2018, conducted by Psychologist. Ex. P-F. Psychologist determined Student required “placement in a private school specializing in students with autism and pragmatic language disorders to receive an appropriate education.” Ex. P-F Parent maintains the Private School provides the therapeutic environment Student requires to allow him to make academic and emotional progress and provides the individualized instruction specially designed to meet his needs. Ex. P-I; P-L; P-P; P-T; P-U.

Director testified through affidavit and cross-examination that she has worked within the special education field since 2003. Ex. P-T. Director testified she is the Principal and Executive Director of Private School. Ex. P-T; Tr. 25. In her capacity as Director, she regularly oversees Student’s teachers and related service providers and is consistently up to date on Student’s progress. Ex. P-T. Director has been familiar with Student since 2018, Ex. P-T. Director observes Student on a regular basis whether in the classroom; meeting Student with his family, teachers, and therapists; and by communicating directly with Student in her office. Tr. 27-28.

Private School provides 12-month instructional services to students with autism, learning disabilities, and other developmental differences. Ex. P-T. Private School develops an individualized full-day educational program for each student. Ex. P-I; P-L. Private School utilizes a multi-strategic teaching and behavioral approach, incorporating modalities which include, but not limited to: Floortime, ABA, and TEACCH (Treatment and Education of Autistic and Related Communications Handicapped Children), with a strong focus on individualized sensory integration, focus on communication and social thinking. Ex. P-T. As part of the staff training, staff members are trained in utilizing these different techniques. Ex. P-T. Floortime is a relationship-based model, using circles of communication to help the understanding of individual students, regulation, and readiness to learn. ABA is a behavioral model that assists students with learning. Director testified that for Student, specifically, timers, visual schedules, and first-then boards are used. The TEACCH method is an evidence-based program that is based on the idea that autistic individuals are visual learners. Private school also employs a board-certified behavior analyst (“BCBA”) who oversees the research-based program and provides behavioral supports to students. Ex. P-T.

Student is in a 6:1:2 classroom of his peers. Tr. 28. Ex. P-T. Private School has a 2:1 classroom ratio, this allows Student access to 1:1 support daily for his communicative, social, and behavioral needs, as well as academic supports. Ex. P-I; P-T. Director further testified instruction is personalized for Student based on his needs. At times he is provided with 1:1 teacher instruction. Tr. 28. He also works in a dyad for certain subjects and periods of the day, as well as small groups, when provided with additional support. Tr. 28, 29.

Student’s schedule has been individualized to meet his needs. Ex. P-L. Director testified the programs offered at Private School provide educational programming, social groups, related services, workshops, professional development, parent training, music and art sessions, and many other resources. Ex. P-I, P-L;P-P; P-T. Director testified that all these program help with Student’s challenging emotional and behavioral struggles.

Director testified Student has made academic progress since his placement at the Private School. Ex. P-M, P-N; P-O; P-P; P-T; P-U. Student’s academic progress is measured through both informal observations of the classroom as well as formal data which is taken on his IEP goals on a daily and weekly basis. Tr. 29. Private School collaborates with the DOE and participates in the IEP meetings to develop appropriate goals for the Student. Tr. 29. Private School collaborates and communicates with Student’s family, all his therapists, and teachers on a regular basis to assess his behavioral and academic goals. Tr. 29.

Director testified Student has improved in his ability to participate without physical escalation, destruction of property, or self-harm, which have helped him to make academic progress. Tr. 31. Specifically, Student has shown improvement in his ability to be flexible with topics that are not just of his own interests. Tr. 31. Student has been able to generalize more skills by going out into the community and is actively participating in more writing and answering of comprehension questions, and different text and reading materials. Student is showing improvement in his reading abilities and math money skills and time management skills. Ex. P-T. Student is also making progress in his academic subjects of social studies and science. Ex. P-T.

Student presents with delays in his receptive, expressive, and pragmatic language skills. Ex. P-O; P-T. Director further states Student receives speech-language services 3 times each week. Ex. P-L; P-T. The speech pathologist works with Student to help him express his emotions appropriately and engage in appropriate conversation with others. Ex. P-T. Student is progressing in his goals of repairing conversational breakdowns and defining new vocabulary words. Ex. P-T.

Director testified that when Student first attended Private School, he would often be in extreme distress, he would have fits of rage and aggression that could last up to two hours, which included very extreme physicality and self-harm. Tr. 34. At times, he would utilize pencils or scissors to threaten himself, attempt to cut his face, or engage in other self-harm or aggression towards others. Tr. 33. Student would also repeat very aggressive racial slurs, sexual slurs, and misappropriations that he was exposed to through social media. Tr. 33,34. This would occur multiple times each day. Tr. 33. As a result, student would need physical redirection and emotional redirection. Tr. 33. Since attending Private School, these behaviors and their frequency have decreased. Tr. 34. Student is more confident in his understanding of language and the impact, Student can identify when he’s feeling triggered, what he may need to avoid a meltdown and how to participate in healthier relationships, with adults and peers. Tr. 34. Director stated that this has been a “game changer” for Student both academically and in terms of his social and emotional development. Tr. 34.

The Student’s June 2022 Private School progress report states Student has the potential for self-injurious behaviors, aggression, property destruction, and issues with technology. Ex. P-M. However, these behaviors have decreased. Ex. P-M. Private School has developed a behavior plan to help manage Student’s behavioral, social, and emotional needs. Ex. P-P; P-T. The BIP has helped Student to appropriately regulate his emotions when frustrated and so that Student can return to his tasks. Ex. P-T. The staff at Private School works with Student to reduce his maladaptive behaviors.

Director testified that the school psychologist develops the behavior plan by collaborating with the classroom staff and Student’s parents to assess what his current challenges are. Tr. 29. If Student becomes physically escalated, the school staff are all trained in crisis prevention intervention, and they have accessible additional staff who can come into support Student and help him self-regulate.

Student receives counseling three times each week at Private School. Ex. P-L; P-T. Student’s counseling therapy sessions have focused on reducing Student’s self-injurious behaviors (such as biting and hitting himself) when he does not get his way. Id.

Student receives occupational therapy two times each week. Ex. P-L; P-T. The focus of Student’s OT is to help Student develop fine motor skills, executive functioning skills, emotional regulation, safety awareness, social skills, and vocational skills. Ex. P-T.

At the hearing, the Parent testified regarding his involvement in Student’s education. Ex. P- U. Tr. 38. Parent testified the DOE did not provide Student with appropriate behavioral support and he was not provided with a required routine. Tr. 39. In addition, the prior Department school transported Student to the hospital on several occasions and Student was being sent home every day because the school could not manage his behaviors, which prevented him from learning. Tr. 39. Parent testified that “things changed” after Student attended Private School because Private School was willing to work with Student’s behavior. Tr. 39. The Parent testified that Student presents with self-injurious, aggressive behaviors. Ex. P-U. As a result, Student needs a lot of support and adult assistance to talk through his feelings and help him to calm down. Id. Private School provided Student with a plan to manage his behaviors and to make sure that he was engaged in academic work. Tr. 40. Now, since July 2022, the Parent has observed Student is more mature, more understanding of concepts and consequences, and willing to participate in academic work without having any tantrums or without calling a crisis team. Tr. 40, 41. Parent testified Student knows that at Private School the doors are open for him to talk to any of the staff when he wants to release his anger or feelings. Tr. 41. Student now looks forward to going to school. Tr. 41, 42. Parent testified that prior to attending Private School, Student did not demonstrate academic and self-help skills such as the basic understanding of money. Tr. 41. Parent testified Student feels proud when he goes to the grocery store and he’s able to pay, get change, and connect things that he has learned in school and incorporate it into the real world. Tr. 41.

Parent has observed Student to make progress. Ex. P-U. The Parent testified that Student’s communication skills have improved, and Student is eager to discuss what he has learned in school. Tr. 42. Student is also improving his communication skills and has been able to engage in meaningful conversations. Ex. P-U. Parent states Student has made progress in his academic skills and is now able to read short stories improving his reading comprehension skills. Ex. P-U. The Parent observed Student’s writing skills have improved. The Parent stated that he has also observed Student be able to add and subtract two-and-three-digit numbers. Ex. P-U.

Parent testified that the staff at Private School has collaborated with him and keeps him posted on Student’s behavior through calls and reports. Parent training is also offered monthly at Private School. The Parent testified that overall, he believes Private School is an appropriate placement for Student because Private School address Student’s unique needs in all areas. Ex. P-U.

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)[3]; 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”).

  • • 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 The DOE conceded the Student was not provided a FAPE for the 2022-2023 school year. The DOE did not present a case, present any witness testimony, or place any documents in evidence at the hearing, the DOE failed to address or sustain its burden under the Education Law and failed to demonstrate it provided the Student with a FAPE for the 2022-2023 school year. Furthermore, the DOE did not object to or contest the substance of the evidentiary material submitted by the Parent in support of their claims, and it offered no documentary evidence contradicting the Parent’s evidentiary material or any rebuttal to the testimony provided by the Parent’s witnesses. Consequently, the Parent is entitled to a presumption as to the truth of the asserted facts underlying their claims that are contained in the documentary evidence and testimony to the extent they are credible and are not contradicted by the hearing record. See Comdyne I, Inc. v. Corbin, 908 F. 2d 1142, 1149 (3d Cir. 1990) [noting that the consequence of a defendant’s failure to contest the claims alleged in a complaint is that “the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true”].

Based on that presumption and the DOE’s failure to sustain its burden under the Education Law, the record establishes that the DOE failed to provide the Student with a FAPE for the 2022-2023 school year. Accordingly, the Parents have met the first prong of the Burlington/Carter Test for tuition funding and/or reimbursement.

  • • Parent’s Unilateral Placement at the Private School was Appropriate 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 the testimony provided by the Parent and the Director to be credible. For the following reasons, I find that the Parents met their burden of proof in demonstrating the unilateral placement at Private School was appropriate.

The question of whether the Private School was an appropriate unilateral placement is principally determined by analyzing whether the program 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 testimonial and documentary evidence submitted by the Parents in this case was sufficient to identify the Student's unique individual needs and to satisfy the Parents' burden to establish the appropriateness of the Student's unilateral placement at Private School for the 2022-23 school year.

The placement of Student in the Private School was reasonably calculated to enable the Student to receive educational benefits and supports the Student required to progress allowing the Student to succeed academically and emotionally. The Student progressed while in the Private School during the 2022-23 school year. As summarized above, the Director of the Private School credibly testified that Student’s program at Private School was individualized and specifically targeted to address the Student’s unique needs. The Director’s testimony reflected her very detailed knowledge and familiarity with the needs and behavior of the Student. The Director testified in great detail about the Student’s tendency to self-harm, engage in erratic, and maladaptive behavior. However, the environment and program were created to specifically address the Student’s challenging behavior in a variety of modalities. The Private School uses at least three different behavior modification methods which demonstrate a comprehensive understanding and ability to cope with the Student’s atypical learning styles and behaviors. The Director and Parent both testified the Student is responding to the intense and diverse supports provided to the Student. The Student is clearly being provided with an environment that is reaching the Student at his unique level and educating the Student so that he can reach his fullest potential. The Student is making progress in learning how to de-escalate his aggressive tendencies and make meaningful connections with lessons learned in the classroom and real-life situations. The Parent detailed the Student’s eagerness to go to school and then recount what he learned during the day. The Student has been able to go to the store and pay for items on his own using the math lessons he learned at the Private School. The School provides intensive counseling and other related services which has helped the Student progress through most, if not all domains. The Private School has created a flexible atmosphere where the Student was able to engage in needed services whether in or outside the classroom. The staff at the Private School is well-trained and certified. I do not agree with the Department’s contention that the Private Placement has failed to meet the Student’s specific needs. On the contrary, the Private School as detailed above, has provided the Student with a small, engaging and supportive environment that addresses almost every possible need the Student requires to make progress.

Thus, the Parent’s selection of the Private School was appropriate and reasonably calculated to allow the Student to make meaningful educational benefits and progress. The Parent has met the second prong of the Burlington/Carter analysis in sustaining their burden in demonstrating the unilateral placement at the Private school for the 2022-2023 twelve-month school year was appropriate.

  • • Consideration of the Equities and Reimbursement Amount The Parent acted reasonably, equitably, and cooperated with the District in the IEP process. The equitable considerations support the Parents’ request for reimbursement.

The Parent cooperated fully with the CSE team and took part in the June 15, 2022, IEP meeting. The Parent testified that the IEP team recommended the Student be placed in an 8:1:1 classroom at a public school, despite the Student’s current placement in a 6:1:2 where the Student has been making progress. The Parent further testified that the DOE did not provide the Parent with any specific school recommendation by June 15, 2022, which is the date the DOE is required to locate an appropriate placement for 12-month student. On June 16, 2022, the Parent timely provided the DOE with notice of his intention to place Student at Private School for the 2022-23 school year, absent an appropriate DOE placement. Ex. P-D; P-U. The Parent testified he was not provided with a school recommendation for the 2022-23 school year. Ex. P- U. Therefore, Parent re-enrolled Student at Private School for the 2022-23 school year. There is nothing in the record indicating the Parent failed to cooperate, delayed, interfered with, or hindered the CSE’s evaluation, program development, or placement process in any way. Furthermore, the District does not contest that the Parent cooperated fully with the CSE. The DOE’s concession in failing to provide an appropriate program and placement for the Student also contributes to the equitable factors favoring the Parent. I find the equitable factors support the Parent’s claim for tuition reimbursement for the 2022-2023 school year.

There is nothing in the record to indicate that the amount of tuition sought for the Private School was unreasonable. The Private School tuition for the 2022-2023 twelve-month school year is $112, 000. Ex. P-J;P- K. The Parent testified his annual income is $74, 000. And he cannot afford to pay this tuition. The Parent’s request that the tuition be in the form of direct funding to the Private School is granted. Ex. P-U. 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.

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). Accordingly, the Parent is entitled to an order directing the DOE to reimburse/fund the tuition for Private School, as discussed above for the 2022-2023 school year.

The Parent is requesting that the DOE provide appropriate transportation to the Student. The Parent notes that on June 20, 2022, the prior IHO under case # 209695 ordered the Department to “immediately arrange for busing of the Student to and from the [Private School] on transportation that includes a safety officer and a bus paraprofessional.” Ex. B-16. The DOE has acknowledged their duty to provide appropriate transportation services and even recommended that a 1:1 bus paraprofessional be provided. Ex. C-26; E-1. However, the Department has failed to provide the transportation the Student needs to get to Private School. The Parent has had to make alternative transportation arrangements at personal expense to ensure the Student is transported to and from the Private School. Therefore, I find that the DOE must reimburse the Parent for any out of pocket expenses the Parent incurred for the transportation of the Student for the 2022-2023 school year upon submission of payment. I further find the DOE must provide the Student with appropriate transportation to and from the Private School for the 2022-2023 school year.

  • • DOE to fund Evaluations The Parent is requesting that the DOE fund the Independent evaluations due to the DOE’s failure to comply with the decision of the prior IHO under case # 209695 dated June 20, 2022, which ordered the Department to: “conduct triennial evaluations of the Student in all other areas of suspected need, but particularly in the areas of neuropsychology, speech and language, occupational therapy and assisted technology.” Ex. P-B. The Department has failed to evaluate the Student as ordered in the prior IHO decision. As of November 2, 2022, almost five months following the prior IHO’s Order, the Student still had not been evaluated by the DOE. Therefore, the DOE is ordered to fund the independent educational evaluations in the areas of neuropsychology, occupational therapy, speech and language therapy, and assistive technology. The Parent has identified a provider to conduct the independent educational evaluations for speech and language, assistive technology, and occupational therapy at rates of $2,100, $2,500, and $2,000, respectively. Ex. P-R. The Parent has further identified an independent neuropsychologist, who is able to conduct the independent neuropsychological evaluation at a rate of $5,500. Ex. P-S. I further note that the DOE’s failure to conduct the triennial evaluations of the Student is a violation of the IDEA on its own. But this failure also deprives the Parent of more current evaluative information and recommendations regarding the Student’s needs and unfairly places the Parent at a disadvantage regarding Prong II above. Under the IDEA, the DOE must re-evaluate the Student every three years unless the Parent and the District agree that such an evaluation is unnecessary. See 20 U.S.C. § 1414(a)(2)(B)(ii); see also 34 C.F.R. § 300.303-300.311; 8 N.Y.C.R.R. § 200.4(b)(4) (in New York, any agreement to forego the triennial reevaluation must be documented in writing). There is no written document waiving the triennial evaluations in this case. On the contrary, there is a prior IHO order dated June 20, 2022, that specifically directed the DOE to conduct the specified evaluations. The DOE has not provided any reason for the failure to carry out the prior IHO order. Clearly, the Student is entitled to these triennial evaluations and any other evaluations in all areas of suspected need. If the DOE fails to comply with this mandate, then the DOE must fund the requested educational evaluations. Moreover, federal regulations also require “that a child with a disability must be evaluated before there is any significant change in the child’s placement.” Application of a Student with a Disability, Appeal No. 94-002 (Feb. 28, 1994) (citing 34 C.F.R. § 104.35(a)). The Student requires an updated psychological evaluation as the last time a psychological evaluation was conducted on the Student was in December 2017, almost six years ago. Ex. P-U The DOE shall fund an independent psychological evaluation, by an independent provider of the Parent’s choosing at market rate.

ORDER

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

  • • ORDERED, that the District failed to provide a FAPE to the Student for the 2022-2023 12-month School Year;
  • • ORDERED that the Parent is entitled to direct funding for the entire cost of the Student’s 2022-2023 twelve-month school year placement at the Private School and the Department of Education shall fund the tuition in a total amount not to exceed $112,000.00 within 30 days of the date of this order; and it is further;
  • • ORDERED that the New York City Department of Education is directed to provide the Student appropriate transportation to and from the Home and the Private School which includes a 1:1 bus para-professional and safety officer within five days from the date of receiving this order;
  • • ORDERED that the New York City Department of Education is directed to reimburse the Parent for any transportation expenses the Parent incurred for the 2022-2023 twelve-month school year within 30 days of submission of such proof of transportation expenses to and from the Private School and home; and it is further;
  • • ORDERED that the New York City Department of Education is directed to fund the following independent evaluations in the following areas:
  • • An independent neuropsychological evaluation, to be provided by an independent provider of the parent’s choosing, at a rate not to exceed $5,500;
  • • An independent speech and language evaluation, to be provided by an independent provider of the parent’s choosing, at a rate not to exceed $2,100;
  • • An independent occupational therapy evaluation, to be provided by an independent provider of the parent’s choosing, at a rate not to exceed $2,000;
  • • An independent assistive technology evaluation, to be provided by an independent provider of the parent’s choosing, at a rate not to exceed $2,500;
  • • An independent psychological evaluation, to be provided by an independent provider of the parent’s choosing, at market rate;
  • • ORDERED that the District 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/his attorney) concerning the implementation of this order within 2 business days. The Implementation unit shall provide a timeline to authorize service providers for Student’s placement and evaluations consistent with this order.

SO ORDERED.

DATED: January 23, 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

Date of Birth: REDACTED

School District: REDACTED

Parent’s Name: REDACTED

Private School: REDACTED

DOE Attorney: REDACTED

Parent Attorney: REDACTED

Director for

Private School: REDACTED

Psychologist: REDACTED

Prior School: REDACTED

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

DOE’S EXHIBITS--NONE

PARENT EXHIBITS

Exhibit                                                                                                                              Number

Letter              Exhibit Name                                                                          Date          of Pages

PENDENCY DISCLOSURE

P-A                  Impartial Hearing Request                                                      07/11/22          14

P-B                  Final Order of Fact and Decision, Case #209695                  06/20/22          22

P-C                  Individual Education Program                                                06/15/22          29

(Provided to Parent 09/29/22)

P-D                  Ten Day Notice Letter and Responses                                   06/16/22          7

P-E                  Pendency Agreement                                                              09/14/22          2

EVALUATIONS

P-F                  Independent Neuropsychological Evaluation                         07/18/18          24

P-G                  Independent Vocational Evaluation                                       10/20/21          35

CORRESPONDENCE

P-H                  Parent Email Requesting Student’s 2022 IEP                                    09/29/22-         3 And Student’s Transportation Accommodations                   10/17/22

ATLAS DOCUMENTS

P-I                   REDACTED Program Description                                                     2022                1

P-J                   REDACTED 2022-2023 Enrollment Contract                                   06/10/22      2

P-K                  REDACTED 2022-2023 Tuition Affidavit                                        07/28/22          1

P-L                  REDACTED 2022-2023 Class Schedule                                            2022                3

P-M                 REDACTED Counseling Progress Report                                          06/06/22          2

P-N                  REDACTED Occupational Therapy Progress Report                        06/2022           2

P-O                  REDACTED Speech Therapy Progress Report                                  06/2022           6

P-P                  REDACTED Progress Report                                                             06/2022           3

RESUMES AND RATE SHEETS

P-Q                  Resume of REDACTED Director                       Undated          2

P-R                  Rate Sheet of REDACTED Speech Services                       Undated          1

P-S                  Rate Sheet of REDACTED, Neuropsychologist                        07/01/22          1

AFFIDAVITS

P-T                  Affidavit of REDACTED Director                     10/27/22          8

P-U                  Affidavit of REDACTED, Parent                                            11/01/22          5

DOE’S EXHIBITS--NONE

IHO’S EXHIBITS

Exhibit

Document

Date

Pages

IHO-1

Parent’s Closing Brief

11/23/2022

28

IHO-2

District’s Closing Brief

12/6/2022

6

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 followed by a letter; “D” followed by a number for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits; Transcript is referenced by “Tr.” Followed by a page number. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.

[3] “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).