New York City Department of Education, Impartial Hearing Decision

NYSED # 576292 / NYC # 228977

FINDINGS OF FACT AND DECISION

Case Number: 228977

Student's Name: [STUDENT]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 08/15/2022

08/31/2022

Actual Record Close Date: 09/06/2022

Hearing Officer: Daniel Ajello Esq.

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

(All Parties Appeared Via Teleconference)

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

[REDACTED], Parent

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

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/31/2022

(All Parties Appeared Via Teleconference)

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

[REDACTED], Parent

[REDACTED], Director,

[REDACTED] (UP)

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

DOCUMENTS ENTERED INTO THE RECORD

PARENT DOCUMENTS

Entered 08/15/2022

Ex Date Title Page(s)

A 07/08/2022 Impartial Hearing Request / Due Process Complaint (DPC) 6

B 06/14/2021 Letter from Parents to [REDACTED],

Chairperson [REDACTED] with Email Confirmation 4 C 10/29/21 Letter from Parent to [REDACTED], Chairperson

[REDACTED] with Email Confirmation 6

D Undated Program Description 2

E 2021-2022 2021-2022 Academic Year Class Schedule 1

F Summer 2021 2021 Summer Class Schedule 1

G 02/2022 Teacher Progress Report 7

H 02/2022 Counseling Progress Update 2

I 02/2022 Occupational Therapy Progress Update 2

J 02/2022 Speech Progress Report 1

K 07/01/2021 2021 Summer Program Enrollment Contract and Addenda 4 L 07/01/2021 2021-2022 Academic Year Enrollment Contract and Addenda 4 M 07/19/2022 Affidavit of Administrative Assistant Regarding

Related Services and Paraprofessional Personnel for Summer 2021 2 N 07/19/2022 Affidavit of Administrative Assistant Regarding

Related Services and Paraprofessional Personnel for 2021-2022 Academic Year 2 O 07/26/2022 Affidavit of Administrative Assistant Regarding

Tuition and Services Costs and Payment 1

P 03/09/2021 IRS E-file Authorization Form for 2020 2

Entered 08/31/2022

Q 02/22/2022 2021 Tax Return 2

R 08/25/2022 Affidavit of private school program director 10

S 2021-2022 Educational Plan 20

HEARING OFFICER DOCUMENTS

Entered 08/15/2022

I Notice of appointment, 07/20/2022, four pages

II Consolidation Order denial, 7/20/22, three pages

III Notice of appearance, 8/9/22, one page

DEPARTMENT OF EDUCATION

Entered 08/15/2022

Ex Date Description Page(s)

1 Excluded Duplicate

2 April 7, 2021 Individualized Education Program (IEP) Meeting

Attendance Page 1

3 April 7, 2021 IEP 30

4 April 7, 2021 Functional Behavioral Assessment (FBA) 5

5 April 7, 2021 Behavior Intervention Plan (BIP) 5 6 October 2020 Private Counseling Goals Progress Report 2 7 February 2021 Private Occupational Therapy Progress Report 1 8 October 2020 Private Occupational Therapy Goals Progress Report 2

9 February 2021 Private Teacher Progress Report 5

10 January 23, 2020 Private Psychiatric Report 10

11 October 16, 2019 Psychoeducational Evaluation 5

12 November 17, 2019 Occupational Therapy Evaluation 7

13 December 16, 2019 Physical Therapy Evaluation 4

14 June 21, 2021 Prior Written Notice 4

15 June 21, 2021 School Location Letter 3

INTRODUCTION

On 07/20/2022, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Hearing commenced on 08/15/2022, to allow the DOE an opportunity to present a defense to the allegations contained in the DPC.

Appended to the record are lists of persons in attendance and the documents received in evidence.

Due Process Complaint (DPC) alleges a failure of the DOE to offer the Student a Free Appropriate Public Education (FAPE) for the 2021-2022 school year. (Ex A 6)

Parent seeks a variety of forms of relief to remedy the alleged failure, including, funding for unilateral placement (UP), at [REDACTED] (UP), and attendant transportation costs. (Ex A 6)

Parent withdrew the sought after transportation cost relief at Hearing, of 08/15/2022. (T 11)

THE POSITION OF EACH PARTY

The DOE Representative appeared, at Hearing of 08/15/2022, and advised that the DOE would not be presenting a case to defend against the allegation that the DOE failed to offer the Student a FAPE, for the 21-22 school year. (T 12-13, Ex A)

Th DOE Representative did note that the DOE would hold the Parent to their burden of establishing the UP as appropriate, and to any equitable arguments that may be made. (T 12-13)

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

At Hearing, of 08/31/2022, the Parent Attorney presented the Parent’s case, primarily via Documentary Evidence.

The DOE cross examined two witnesses, as reviewed below.

[REDACTED], Director, [REDACTED]

Witness provided Testimony via Affidavit (Ex R), and upon cross examination, as considered below:

• • Participation in Student’s 04/07/2022 IEP meeting (T 26, Ex 2 & 3);
• • Student [STUDENT] Reading class does not utilize religious text (T 31);
• • Culture Class does not have a religious component (T 31);
• • Student Bible Studies class is religious (T 31); and
• • Student behaviors decreased, though Student still was experiencing outbursts. (T 32 & 34)

[REDACTED], Parent

Testimony, at hearing, included:

• • A review of Student’s educational history whereby, since kindergarten, the Student exhibited challenges and required educational support (T 44);
• • Student struggles included: “She would spend the day hiding behind the classroom door; wouldn't go down to lunch, because loud noises would scare her; wouldn't go to the bathroom, because she was afraid that the toilets would overflood; so she had stomach issues, health issues related to that.” (T 46);
• • Student was also found, two hours after school started, a block away from the school (T 46-47);
• • Parent then placed the Student at a private school, which Parent believed provided more safety, and provided a smaller setting (T 47-48);
• • Student struggles continued: “She still had a lot of struggles and issues, with the running away, and the tantrums, and you know, just in general, struggling, which was impacting her academically. She wasn't progressing as well as she could have, because she was struggling, just socially and emotionally.” (T 48);
• • Parent reached out to the DOE seeking additional services (T 48);
• • Student was provided with additional support, at the then current school, including a para who did not have specific training as a crises para (T 49);
• • Student was not successful, continuing adverse behaviors of kicking and screaming, and was suspended a few times (T 49-50);
• • School advised the Parent that it was not a good fit for the Student, and a full time special education program should be looked into (T 50);
• • In the summer of 2019, the Parent reached out to the DOE to request an IEP and school placement (T 50-51);
• • For the 19-20 school year the Student attended the UP;
• • Parent states that no other school would take the Student (T 51);
• • Parent attended the IEP meeting, of 04/07/2021 (T 51);
• • Student need for additional supports were not discussed though the need for a speech language therapy was raised (T 51-52);
• • At the time of the meeting the Student was received speech language therapy (T 52);
• • Parent was advised she should write a letter requesting speech language services (T 53);
• • Parent had brought the speech language issue up with the DOE previously and was advised the Student would be added to a waiting list (T 53);
• • Parent followed up requesting speech language services and never received a response from the DOE (T 53-54);
• • The IEP team discussed the offered Integrated Co-Teaching Program, with a paraprofessional, recommended for the 21-22 school year (T 54);
• • Parent, and Student’s then current school, raised concerns that the class would be too large and Student would not receive the social skills needed (T 54);
• • Parent received a copy of the IEP, and eventually, a placement, and communicate concerns to the DOE (T 55-56, Ex 3, 14 & 15, Ex B);
• • Parent communicated with the Assistant Principal of the proposed DOE school placement, and felt the placement would not be appropriate, communicating concerns via letter to the DOE, without a response (T 57-59, Ex C);
• • If presented with an appropriate Public School Student placement, and program, for the 21-22 school year, Parent would have sent the Student (T 59);
• • Without such a placement Parent continued Student enrollment, at the UP (T 59);
• • Parent signed a Student UP enrollment Contract and addenda (T 59, Ex K & L);
• • Parent has made a few small payments, and is unable to make any additional payments: “Due to our financial struggles, we -- we just couldn't afford to.” (T 61);
• • Parent identified 2020 Tax Return as accurate (T 62, Ex P);
• • Parent identified 2021 Tax Return as accurate (T 63, Ex Q);
• • Parent seeks direct District funding of Student 21-22 UP Tuition, and reimbursement for any portion paid by Parent (T 63-64); and
• • Parent is satisfied with the UP Student program, for the 21-22 school year:

“Because she was getting all the services she required emotionally and socially as well as physically and in all aspects of -- we saw improvements at home, based on all the amazing tools and hands-on learning she was doing in school. She was able to function better in life and better academically, decreases in unwanted behaviors, and generally just becoming a happier child and functioning so much better in all aspects of her life, using the skills she acquired through the school. So we felt it was very successful for her.” (T 64-65)

Parent Attorney contends that the evidence, as reviewed, supports the allegations contained in the DPC, an Order directing District funding of Student Tuition, and equities weigh in favor of the Parent. (T 69-89)

The DOE Attorney contends the UP is not evidenced to provide an appropriate education for the Student, for the 21-22 school year. The DOE Attorney contends that the Student had, and continues to have behavioral issues, and Student behavior goals have not been completely met. (T 89-92)

The DOE argument of Student’s continued need for services to address behaviors does not weigh upon the appropriateness of the UP program.

No guarantee of 100% success is required for any Student program or service.

The argument that Student goals are not 100% met, and Student behaviors have not been completely corrected, is not sensible. The DOE’s own IEP only calls for a behavior goal to be met 80% of the time. (Ex 3-11 & 3-12)

The DOE does submit a BIP. (Ex 5)

The DOE BIP identifies various adverse Student behaviors. However, the DOE BIP does not set forth any sensible goal or a manner by which success can be measured. (Ex 5-4)

The DOE does point out that some portion of the Student UP program does include religious instruction, and if there is an award for District UP funding, it should be reduced by any portion of religious instruction. (T 92-93)

As reviewed below the Parent case is supported via credible evidence considered below.

The DOE submitted documents into evidence establishing various documents were assembled, an IEP created, and Student placement offered. (Ex 2 through 15)

Ultimately the IEP was not defended as offering a FAPE.

The IEP did classify the Student Other Health Impairment (Ex 2-1); and recommends an Integrated Co-Teaching Class (ICT); with related services Counseling, Occupational Therapy, Behavior Management / Support Plan, and Paraprofessional Behavior Support (Ex 2-22).

As indicated above, the IEP and related BIP, fail to appropriately address Student adverse behaviors. (Ex 2 & 5)

Parent submitted evidence is considered below:

A 07/08/2022 Impartial Hearing Request / Due Process Complaint (DPC)

Relative to the Student, the Parent sets forth allegations of a District denial of an offer of FAPE, for the 21-22 school year.

Parent details basic Student characteristics, [REDACTED] old girl classified previously as Emotional Disturbance, diagnosed with Autism Spectrum Disorder and Obsessive Compulsive Disorder (OCD). (Ex A 1)

Student is know to the District, convened an IEP meeting, on 04/07/2021, and created an IEP, which Parent alleges denies the Student a Free Appropriate Public Education (FAPE). (Ex A 2-4)

Parent cooperated with the District, attending IEP meeting, and following up with the offered Student placement. (Ex A 5)

Parent believes the placement to be inappropriate, advised the District, and ultimately filed the current DPC. (Ex 5-6)

Presently, Parent seeks direct District funding of the Student’s 21-22, UP Tuition. (Ex A 6)

B 06/14/2021 Letter from Parents to [REDACTED], Chairperson [REDACTED] with Email Confirmation

Parent communicates with the District with concerns regarding the recently developed IEP, and lack of receipt of an actual Student placement, in light of entitlement to a 12 month school year.

Parent advises the District of intent to file a DPC, and that unless Parent concerns “are addressed and I receive an appropriate placement for her, [Student] will begin the 2021-2022 extended school year at the [UP]…If my concerns in this letter are not addressed and I do not receive an appropriate placement for [Student] for the 2021-2022 school year, I will be requesting an impartial hearing to pursue public funding for [Student’s] placement at the [UP] for the school year...” (Ex B 2)

C 10/29/21 Letter from Parent to [REDACTED], Chairperson [REDACTED] with Email Confirmation

Parent reiterates concerns, and intent to file a DPC and seek District funding, communicated in previous letter (Ex B), and details concerns with the DOE proposed Student placement. Parent also seeks additional information from the District in the event there has somehow been a misunderstanding, on her end.

D Undated Program Description

General characteristics of the UP program are detailed, this includes:

• • Designed to meet the educational, social and emotional needs of children with special needs;
• • Serves children of various different degrees of learning disabilities or behavioral challenges;
• • Individually designed programs for students who have not experiences success in mainstream school settings;
• • A full range of academic subjects, along with a structured behavior modification program to address behavior and social/emotional issues (Ex D 1);
• • An individual education plan is designed to address each student’s deficits, and includes specific methods, materials and strategies; and
• • ;Teachers, therapists and support staff meet regularly to discuss progress and share information with regard to each student. (Ex D 2)

E 2021-2022 2021-2022 Academic Year Class Schedule

Student Academic and related service schedule.

Schedule does include a degree of religious instruction, of 5%.

This is based upon 1,800 weekly minutes of scheduled time, and 90 weekly minutes of Prayer/Bible Studies.

F Summer 2021 2021 Summer Class Schedule

Student Academic and related service schedule.

Schedule does include a degree of religious instruction, of 4%.

This is based upon 1,740 weekly minutes of scheduled time, and 75 weekly minutes of Prayer/Bible Studies.

G 02/2022 Teacher Progress Report

Progress Report from the 21-22 school year includes:

• • Classroom program components of class of seven students with one teacher and one teacher assistant and her own1:1 paraprofessional;
• • Special Education challenges include:
• • social skills deficits
• • behavioral challenges.
• • often appears anxious
• • struggles greatly with accepting authority and with self-regulation
• • when presented with something that’s not to her liking or with a non-preferred task, she often becomes defiant
• • when triggered she may scream at the teacher, rip papers to shreds, throws objects, run out of the classroom, slam doors, and rip down bulletin boards
• • great difficulty being flexible when things do not go her way and may become very agitated
• • very hard for Student to compose herself and calm down
• • often reluctant to admit that her responses were inappropriate and to consider more appropriate responses (Ex G 2)
• • deficits in executive functioning skills and appropriate organizational skills
• • difficulty working in a group (Ex G 2)
• • Student supports include:
• • Behavior Modification Program (Ex G 1-2)
• • A weekly program to teach Student skills on staying organized (Ex G 2)
• • Direct social skills instruction (Ex G 2-3)
• • Student Reading and Comprehension levels and skills are detailed, with supports that include: instruction in a group of two to keep Student focused, motivated and reduce anxiety (Ex G 3); graphic organizers; and a necessity to provide motivation, specific and positive feedback, and hands materials in order to maintain focus (Ex G 4)
• • Student Math levels and skills are detailed, with supports that include: instruction provided in a group of two to provide specific feedback,maintain focus,motivation and reduce anxiety (Ex G 5
• • Report continues to similarly set forth information relative to Student levels, skills and supports for Grammar (Ex G 6); Social Studies (Ex G 6-7);and Science (Ex G 7)

H 02/2022 Counseling Progress Update

Report details Student areas of need relative to Counseling, including difficulty expressing herself with words. (Ex H 1)

Student supports include verbal cues and anxiety reducing skills. (Ex H 1-2)

Services are recommended to continue. (Ex H 2)

I 02/2022 Occupational Therapy Progress Update Report details Student areas of need relative to Occupational Therapy, including delays in sensory processing/self-regulation, executive functioning, muscle strength and graphomotor skills. (Ex I 1)

Student supports include a cuddle swing, yoga, and visual perceptive games. (Ex I 1)

Services are recommended to continue. (Ex I 2)

J 02/2022 Speech Progress Report

Report details Student areas of need relative to Speech language, including struggles with self-regulation; how to develop an awareness of her social challenges and triggers, strategies and tools for coping with and overcoming small, daily challenges, and actually putting the strategies into practice. (Ex J 1)

Student supports include strategies to remain calm and behavior modification programs and incentives. (Ex H J 1)

Services are recommended to continue. (Ex J 1)

K 07/01/2021 2021 Summer Program Enrollment Contract and Addenda The UP summer program contract Tuition is set forth as $8,000.00 (Ex K 1), plus Related Services cost of $1,620.00 (Ex K 3), and a Paraprofessional cost of $5,000.00. (Ex K 4)

Parent is obligated to payment via signature upon the Contract. (Ex K 2)

L 07/01/2021 2021-2022 Academic Year Enrollment Contract and Addenda The UP ten month school year program contract Tuition is set forth as $57,000.00 (Ex L 1), plus Related Services cost of $10,800.00 (Ex L 3), and a Paraprofessional cost of $25,000.00. (Ex K 4)

Parent is obligated to payment via signature upon the Contract. (Ex L 2)

M 07/19/2022 Affidavit of Administrative Assistant Regarding Related Services and

Paraprofessional Personnel for Summer 2021

Evidence of Student Related Services costs per session of Speech Therapy, Occupational Therapy and Counseling. (Ex M 1)

Evidence of Paraprofessional cost, of $5,000.00. (Ex M 2)

N 07/19/2022 Affidavit of Administrative Assistant Regarding Related Services and Paraprofessional Personnel for 2021-2022 Academic Year

Evidence of Student Related Services costs per session of Speech Therapy, Occupational Therapy and Counseling. (Ex N 1)

Evidence of Paraprofessional cost, of $5,000.00. (Ex N 2)

O 07/26/2022 Affidavit of Administrative Assistant Regarding Tuition and Services Costs and Payment

Parent is evidenced to have paid $450.00 of the Total UP Tuition, leaving a balance of $106,970.00.

P 03/09/2021 IRS E-file Authorization Form for 2020

Evidences limited parental income, of $29,126.00.

Q 02/22/2022 2021 Tax Return

Evidences limited parental income, of $29,126.00.

R 08/25/2022 Affidavit of private school program director

UP program director provides Testimony that includes:

• • Witness qualifications (Ex R 1);
• • General characteristics of the UP, such as:
• • 42 student enrolled for the 21-22 school year
• • Highly structured program that includes behavior modification programs
• • Multi-sensory approaches
• • Social skills instruction
• • Counseling
• • Occupational therapy
• • Speech therapy
• • Physical therapy
• • Hearing Education Services (Ex R 1)
• • Staff members receive continuous training and professional development (Ex R 1-2)
• • Witness role at the UP (Ex R 2);
• • Student enrolled at the UP for the 21-22 school year;
• • Witness observed the Student daily;
• • Witness reviewed Student characteristics, and challenges, at the start of the 21-22 school year, which impacted her education, which included educational and behavioral areas of need (Ex R 2);
• • Witness detailed supports to address Student challenges, including: a small class, am individualized behavior plan, and strategies to lessen anxiety;
• • Witness reviewed qualifications of staff servicing the Student (Ex R 3);
• • UP staff drafted the Student’s individualized education plan and programming, for the 21-22 school year (Ex R 3-4, Ex S);
• • Witness details services and supports incorporated into Student program, for the 21-22 school year, relative to academics and social behavioral challenges (Ex R 3-4);
• • Witness details areas of Student services and supports delivered by the UP, during the 21-22 school year, in all related areas (Ex R 4-7);
• • Witness details areas of Student progress, via 21-22 UP services and supports, in areas of math, handwriting, executive functioning, and organizational skills (Ex R 7);
• • Student attended the UP 2021 summer program, and received services and supports to address her needs (Ex R 8);
• • Student did receive a small amount of religious instruction during the 21-22 school year (Ex R 9);
• • Witness believes the DOE IEP, FBA and BIP, of 04/07/2021, is not sufficient for the Student, in part due to a failure to provide speech language therapy (Ex R 9-10, Ex 3-4-5)
• • Witness concludes that the UP 21-22 program was appropriate for the Student, addressing academic, speech language, social-emotional-behaviors and sensory-motor areas, enabling Student to make progress (Ex R 10)

S 2021-2022 Educational Plan

Education plan details supports to address Student special education needs:

• • Reading goals include decoding, vocabulary, and main idea, via supports that include: worksheets, graphic organizers, and highlighters (Ex S 1-3);
• • Math goals include writing numbers, word problems, and geometry, via supports that include: charts, and manipulatives (Ex S 4-7);
• • Writing goals include proper letter formation, writing Student name, independent writing, and writing opinions, via supports that include: language exercises, worksheets, and whiteboards (Ex S 8-9);
• • Social and Behavioral goals include to use words to express lack of understanding, attempt a task independently, and to discriminate between immature and mature behaviors, and chose the appropriate behavior, via supports that include: role playing, modeling, charts, and social skill strategies (Ex S 13-14);
• • Counseling goals include to listen to instructions, think before speaking, and appropriately verbalize when feeling the emotion of anger, via supports that include: counseling sessions, discussion, problem solving, therapeutic activities and materials, role playing and modeling (Ex S 15); and
• • Related service goals for Occupational Therapy (Ex S 16-17); and Speech and Language Therapy. (Ex S 18-20)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 2021-2022 School Year

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

The DOE has not evidenced neither the development of an appropriate IEP, nor an appropriate Student placement, for the commencement of the 2021-2022 school year.

An IEP of 04/07/2021 is in evidence. (Ex 3)

While the DOE has not defended the IEP, deficiencies of the document are detailed above. These deficiencies are found within the document itself and via credible Documentary Evidence and Testimony. (Ex 3-11, 3-12, T 54-55, T 57-59, Ex B & C & Ex R 9-10)

The DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 21-22 school year.

I find the DOE failed to offer the Student a FAPE for the 2021-2022 school year.

UP Placement for the 2021-2022 School Year

Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 2021-2022 school year.

The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. I find that the documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent.

Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex D, E, F, G, H, I, J, R & S & T 32 & 34, T 64-65)

UP provides special education services specifically tailored to meet the needs of the Student.

I find UP provides an appropriate education and program for the Student for the 2021-2022 school year.

TUITION FUNDING 2021-2022 School Year

Parent is entitled to District funding for the Student UP, 2021-2022, Tuition.

The DOE has denied a FAPE to the Student for the 2021-2022 school year.

Parent provided appropriate Ten Day Notice (TDN) to the District which included objection to the recent IEP (Ex 3); notice of intent to place the Student at the UP; and intent to seek District funding for said Student placement. (Ex B & C)

Parent signed a Student UP enrollment Contract and addenda (T 59, Ex K & L); and has made a few small payments. (T 61)

Parent Testifies she is unable to make any additional payments: “Due to our financial struggles, we -- we just couldn't afford to.” (T 61)

Parent provides evidence of limited financial resources. (Ex P & Q)

A portion of the UP program is evidenced to be religious in nature. (T 31, Ex R 9, Ex E & F)

Tuition is evidenced for a 12 month, 2021-2022 school year, as considered, and calculated, below:

K 07/01/2021 2021 Summer Program Enrollment Contract and Addenda The UP summer program contract Tuition is set forth as $8,000.00 (Ex K 1), plus Related Services cost of $1,620.00 (Ex K 3), and a Paraprofessional cost of $5,000.00. (Ex K 4)

Summer program contains about 4% of time dedicated to religious instruction. (Ex F)

Fundable Tuition is calculated:

Tuition: $8,000.00

Less 4% - $320.00

Related Services: $1,620.00

Paraprofessional: $5,000.00

TOTAL: $14,300.00

L 07/01/2021 2021-2022 Academic Year Enrollment Contract and Addenda The UP ten month school year program contract Tuition is set forth as $57,000.00 (Ex L 1), plus Related Services cost of $10,800.00 (Ex L 3), and a Paraprofessional cost of $25,000.00. (Ex K 4)

Academic Year includes about 5% of time dedicated to religious instruction. (Ex E)

Fundable Tuition is calculated:

Tuition: $57,000.00

Less 4% - $2,850.00

Related Services: $10,800.00

Paraprofessional: $25,000.00

TOTAL: $89,950.00

Total District amount of Tuition to be funded:

$14,300.00 + $89,950.00 = $104,250.00

Parent is evidenced to have paid $450.00 of the Total UP Tuition, which will be reimbursed to the Parent. (Ex O)

With regard to fashioning equitable relief, one court has addressed whether it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so (Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). The court held that "[w]here... parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769 F. Supp. 2d at 428). The Mr. and Mrs. A. Court relied in part on dicta from earlier cases in which similar claims seeking direct retroactive payment to a private non-approved school were asserted (see Connors v. Mills, 34 F. Supp. 2d 795, 805-06 [N.D.N.Y. 1998] [opining that such financial disputes should be resolved within the administrative hearing process]; see also S.W., 646 F. Supp. 2d at 358-60). The Mr. and Mrs. A. Court held that in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs (Mr. and Mrs. A., 769 F. Supp.2d at 430).

In this matter the Parents choose to continue Student placement at UP, without any DOE alternative capable of offering the Student a FAPE.

Parent provides evidence supporting an inability to pay the UP Tuition up front and await reimbursement. (T 61 & Ex P & Q)

Parent needs to meet the burden of production and persuasion with respect to whether they have the financial resources to "front" the costs of a unilateral placement and whether they are legally obligated for the student's tuition payments (Application of the Dep't of Educ., 12- 132; Application of a Student with a Disability, 12-036; Application of a Student with a Disability, 12-004; Application of the Dep't of Educ., 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041).

I find the Parent meets the burden of establishing a financial inability to pay the UP Tuition and await reimbursement, and is therefore entitled Direct District funding of the 2021-2022, UP, 12 month Tuition.

I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to direct DOE funding of the UP tuition, for the 2021-2022 school year, as Ordered below.

ORDER

• • The Department of Education (DOE) failed to offer the Student a FAPE for the 2021-2022 school year.
• • The DOE shall directly fund Student, 12 month, 2021-2022 Tuition, at [REDACTED] (UP), in the amount of $104,250.00.
• • The DOE shall reimburse Parent $450.00, for their payment of a portion of 2021-2022, UP, Student Tuition.
• • The DOE shall provide Parent with any documents or forms necessary, to facilitate payment under this Order, within ten days of the date of this Order.
• • 5. This decision is subject to appeal and review by the State Review Officer.

DATED: September 9, 2022

DANIEL AJELLO

DANIEL AJELLO

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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