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FINDINGS OF FACT AND DECISION
Case Number: 229069
Student’s Name: REDACTED
Date of Birth: REDACTED
School District: N.Y.C. Dept. of Ed., District REDACTED
Hearing Requested By: Parent
Date of Hearing: 9/21/2022
Record Close Date: 10/31/2022
Date of Decision: 10/31/2022
Impartial Hearing Officer: Dr. Oren Varnai, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 21, 2022
For the Student:
- • REDACTED, Esq., (hereinafter referred to as “Parents’ Attorney”)
For the Department of Education (“DOE”):
- • REDACTED, Esq., attorney for DOE (hereinafter referred to as “DOE’s Attorney”)
Glossary of Terms
Private School – REDACTED
Parent – REDACTED
Private School Principal – REDACTED
District Representative – REDACTED
NEW YORK CITY OFFICE OF ADMINISTRATIVE
TRIALS AND HEARINGS (OATH)
SPECIAL EDUCATION HEARINGS DIVISION
REDACTED, a Minor, by and through his/her Parent(s),
PETITIONER FINDINGS OF FACT AND DECISION
against Case # 229069 THE NEW YORK CITY Dr. Oren Varnai, Esq.
DEPARTMENT OF EDUCATION, Impartial Hearing Officer
RESPONDENT
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq., as well as Section 504 of the Rehabilitation Act.
The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with his objectivity to hear this matter.
II. Background and Procedural History
Petitioner is the parent of Student. On 7/18/2022, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”). The undersigned Hearing Officer was appointed to preside over this case on 7/26/2022.
Student has been classified by the DOE as a student with autism,[1] with the additional diagnoses of attention deficit hyperactivity disorder, developmental coordination disorder, and generalized anxiety disorder.[2] He also engages in maladaptive behaviors when frustrated, and presents with delays in all areas of development, to include, sensory processing skills, fine motor skills, and visual motor skills.[3] According to Parent, while Student was enrolled in a DOE school for the 2021-2022 school year, Student did not make progress. An IEP was created on April 5, 2022[4] for the 2022-2023 school year, but because Student’s most recent Functional Behavioral Assessment (“FBA”) was not available, the CSE reconvened on June 21, 2022, in order to incorporate the findings of the FBA in Student’s final IEP.[5] Parent sent the DOE a Ten Day Notice (“TDN”) on 6/16/2022 informing Parent’s intent to unilaterally place Student in the Private School.
In the DPC Parent alleges that the DOE denied the Student a FAPE for the 2022-2023 School Year by, among other things, failure to provide Student with an appropriate placement, failure to provide ABA instruction, reduction in Physical Therapy (“PT”), Occupational Therapy (“OT”), & Speech and Language Therapy (“SLT”), failure to provide an appropriate IEP, and failure to implement the IEP.
The DOE failed to file a Due Process Response to Parent’s DPC as required under 8 NYCRR Section 200.5(i)(4), or issue a Prior Written Notice (“PWN”) explaining “why the school district proposed or refused to take action raised in the complaint.” No resolution meeting was ever held despite the requirements outlined in 8 NYCRR Section 200.5(j)(2).
A Pre-Hearing Conference (“PHC”) was held on 8/19/2022, and the Due Process Hearing (“DPH”) was held, and concluded, on 9/21/2022. The DOE defended all aspects of its provision of FAPE, presented documentary evidence, and the testimony of one witness. Parent presented documentary evidence, and the testimony of Parent and Private School Principal.
III. Parties’ Positions
- • DOE
In their closing brief, the District maintained that Student’s placement was appropriate both in terms of class size and student to teacher ratio.[6] DOE’s position was that the Student’s IEP was calculated to provide Student with a tailored educational program designed to confer meaningful education benefit. DOE presented documentary evidence,[7] as well as the testimony of the District Representative involved in the creation of Student’s IEP. DOE objected to the appropriateness of the Parent’s unilateral placement at Private School but cited existing caselaw parameters without substantively challenging the appropriateness of the placement.[8]
DOE objected to the IHO’s potential revision of the IEP, as well as IHO’s consideration of alleged student transportation failures as beyond the scope of the hearing. Finally, DOE asserted that the equities did not favor the Parent because of Parent’s Attorney’s submission of an altered document as an exhibit that was not admitted into evidence;[9] DOE did not address any other equitable barriers or concerns to Parent’s requested relief for tuition reimbursement.
- • Parent Parent alleges that the DOE failed to provide the Student with a FAPE by not meeting its burden under Education Law 4404(1)(c) in that the public-school placement did not meet Student’s needs, and that the recommended supports and services were not appropriate.[10] Specifically, Student had been receiving ABA services while in Early Intervention (“EI”) and preschool, but that the DOE did not recommend ABA for the 2022-2023 school year despite Student’s educational progress while receiving those services.[11] Parent alleged that the DOE did not provide Student with sufficient adult supervision throughout the school day, as well as insufficient related services.[12] Parent claimed that the DOE did not address her concerns; failed to address Student’s feeding, toileting, and communication needs; failed to provide Student with a toileting paraprofessional; failed to develop an appropriate program based on peer-reviewed research; failed to implement the IEP; and failed to recommend measurable goals consistent with Student’s needs.[13]
Parent presented the affidavit testimony of the Parent and the Private School Principal. The witnesses were cross-examined at the hearing.
IV. Finding of Facts and Decision
- • The DOE Deprived Student of a FAPE for the 2022-2023, 12-month, School Year (Burlington/Carter Prong I)
The IDEA (20 U.S.C. §§ 1400-1482) contemplates two specific purposes designed to ensure (1) 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) that the rights of students with disabilities and parents of such students are protected.[14] 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.[15]
A free and appropriate public education can be said to be 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.[16] "[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."[17] The Supreme Court ruled that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement."[18]
"Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not,"[19] and the Second Circuit explained that not all procedural errors render an IEP legally inadequate under the IDEA.[20] Under the IDEA, if procedural violations are alleged, an IHO 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.[21]
An IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE.[22] A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction,"[23] but the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."[24] "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,"[25] and an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents,"[26] is what is required. School districts are not required to "maximize" the potential of students with disabilities,[27] but are required to provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement.'"[28] The IEP must be "reasonably calculated to provide some 'meaningful' benefit,"[29] and designed to be provided in the least restrictive environment (“LRE”).[30] An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance,[31] and outlines annual goals specifically designed to address the Student’s needs resulting from his disability in order to make progress in the general education curriculum[32] through the use of appropriate special education services.[33] Although not every student can be expected to attend a regular education curriculum, the IEP “must be appropriately ambitious in light of his 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."[34]
- • The DOE Denied the Student a FAPE by its Failure to Consider ABA Methodology and its Provision Throughout the School Day The IDEA does not require that specific instructional methodologies be included in the IEP.[35] Further, generally, unless there is evidence that a specific methodology is required, teachers are authorized to use their discretion regarding the methodology to be employed.[36] However, when reports and evaluative materials “yield a clear consensus,” an IEP that fails to provide those services is not “reasonably calculated to enable a child to receive educational benefits,” thereby substantively denying a student a FAPE.[37] In at least one case, an IEP was found to be substantively inadequate where there was "clear consensus" that student required a particular methodology, but where the "plan proposed in [the student's] IEP" offered "no guarantee” of the use of this methodology.[38]
In Student’s independent Neuropsychological evaluation[39] dated 3/11/2022, which the CSE had available in its creation of the IEP, the psychologist diagnosed Student with Autism (“ASD”) Level 3, requiring very substantial support, Attention-Deficit/Hyperactivity Disorder, Developmental Coordination Disorder, and Generalized Anxiety Disorder.[40] Although the DOE does not dispute this diagnosis, there is no discussion in the IEP of the neuropsychologist’s determination that Student’s instructors “need to have had training and receive regular supervision in Applied Behavior Analysis (ABA), which is an evidence-based method for instructing students with ASD. Although ABA should be the basis for [Student’s] education, other strategies commonly accepted as best practices (i.e., DIR/Floortime, TEACCH, Augmentative Communication) can be incorporated as appropriate.”[41] Private School Principal similarly testified that Student “definitely needs ABA all day across all settings.”[42]
Although I find otherwise, it could be argued that the neuropsychologist’s and Private School Principal’s recommendations of ABA instruction do not rise to a “clear consensus”[43] that Student required the specific methodology of ABA. The CSE is not bound by the evaluative material it has in front of it when making a program recommendation for Student, and it can decide alternative methods by which to provide tailored instruction to the Student if it reasonably believes that the needs could be addressed differently. The record is clear, however, that the CSE never even considered ABA instruction as an option, not because it had an alternative appropriate methodology, but because ABA was not an available service due to District policy and the unavailability of full-day ABA in the proposed DOE placement.
In response to IHO’s question as to why an ABA program was not considered for Student, the District Representative testified that “we do not provide ABA full instruction in [the] school building”[44] and that the CSE “team…didn’t consider [ABA] because it wasn’t in…our school.” The CSE’s wholesale abandonment of discussing whether ABA should be a potential specific methodology that Student might need violates the standard enumerated in Rowley, Endrew F., A.M., and R.E., and also violates 8 NYCRR 200.4(f)(1)(iii) requiring the CSE to consider “the results of the initial or most recent evaluation of the student,” and 8 NYCRR 200.4(f)(2)(iii) requiring the CSE to address “the student's anticipated needs.”
It seems clear that Student requires ABA instruction in order to tailor the provision of education to his individual needs, but the CSE never considered the merits of this argument merely because such services were not available as a matter of policy and/or unavailability in the DOE placement.
Therefore, I find that Student requires ABA instruction throughout the school day, and the DOE’s failure to consider and provide such methodology substantively deprived the Student of a FAPE.
- • DOE Shall Provide Parent Counseling and Training Parent acknowledges in the DPC that, although the IEP recommends Parent Counseling and Training (“PCAT”), there appears to be an error in the frequency of the provision of services to Student requiring “four times weekly for 60 minutes.”[45] Parent’s Attorney requested in her closing brief[46] as well as in Parent’s DPC[47] that Student be awarded PCAT four times a month with a provider that Parent has chosen with an hourly rate. There is no evidence in the record that the DOE has failed to provide PCAT, especially since the DPC was filed prior to the beginning of the school year. DOE does not contest that Parent is entitled to such services, and the IEP recommends them as well, albeit with a scrivener’s error mandating PCAT of 60-minute sessions at “4 time(s) per week.”[48] Therefore, since there is no allegation that the DOE has failed to recommend PCAT, or that there has been a non-implementation of the service, particularly since the Student has been unilaterally placed, the IEP recommendation shall be corrected to read that PCAT services will be provided four times a month, with each session lasting 60 minutes. To the extent the DOE has failed to provide PCAT, the DOE shall provide additional 1-hour sessions for each one missed since the beginning of the 12-month School Year up to the date of this order. In addition, PCAT is available at the Private School on a monthly basis,[49] provided to Student as part of his related services and appears to be part of Student’s tuition cost.
- • The DOE Is Not Required to Provide Home-Based ABA Therapy Parent’s request in the DPC includes proposed relief of 10 hours of per week of at-home ABA therapy.[50] Private School Principal testified that Student “definitely requires ABA [and] [i]f he received it at home, it would only enhance his learning further.”[51] In response to DOE’s cross examination, Private School Principal testified that the home-based ABA would be beneficial to generalize Student’s skills and that if Student “would have [ABA] at home, he would be able to generalize what’s taught at school into the home environment.”[52] As discussed in a State Level Review by an SRO,[53] “the IDEA does not require school districts, as a matter of course, to design education programs to address a student’s difficulties in generalizing skills and other settings outside of the school environment, particularly where it is determined that the student is otherwise likely to make progress, at least in the classroom setting.”[54] Further, Student already receives ABA-based instruction throughout the school day at Private School, and the testimony of Private School Principal was clear that Student “would learn the skills quicker [] [and] would make progress getting ABA at school, but…quicker if [Student] had [ABA] at home.”[55] There was no evidence or testimony that Student would regress or not meaningfully progress were he not to receive home-based ABA services.
Although it is very likely that Student would generally benefit from home-based ABA services, this benefit is cannot be said to be necessary for the DOE to provide Student with the educational benefits required under the holdings of Rowley and Endrew F. “[T]he IDEA ensures the provision of ‘an appropriate’ education, ‘not one that provides everything that might be thought desirable by loving parents’.”[56]
“While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow that they may take advantage of deficiencies in the district's offered placement to obtain all those services they might wish to provide for their child at the expense of the public fisc, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement 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.”[57]
It should be noted that the Neuropsychological Evaluation refines the anticipated need for home-based ABA in the form of compensatory services of home-based ABA of 5 hours per week,[58] but this recommendation also characterizes the benefits of at-home ABA as being designed to “reinforce and generalize [Student’s] skills to the home and community.”[59] Further, Parent does not seek compensatory education or compensatory services in the DPC, and there was no testimony as to the need for any compensatory relief.
Therefore, I find that there was insufficient basis that Student requires home-based ABA services in order to receive the educational benefits the District is required to provide him[60] as it is not required to render “every special service necessary to maximize the student’s potential.”[61]
- • The DOE Denied the Student a FAPE by Not Conducting a Feeding Evaluation District Representative testified that Parent raised her concerns with regards to Student’s feeding difficulties, but that an evaluation had not been conducted because “at the time of the [IEP] meeting…the evaluations were closed for the rest of the school year.” [62] District Representative did not know when the next feeding evaluation ‘window’ would reopen for the DOE to conduct the feeding evaluation, and did “not know what the protocol is”[63] in that regard.
There was no dispute between the Parties that Student’s feeding needs, and difficulties should have been addressed. At the very least, the DOE should have presented evidence as to when a feeding evaluation could be conducted even if there were difficulties in scheduling one.
Although, on its own, the absence of a feeding evaluation would not rise to a substantive denial of FAPE, "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not,"[64] and if procedural violations are alleged, an IHO 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.[65]
There was insufficient testimony in the record as to the impact of Student’s feeding needs affected his education, but the absence of an evaluation in an area of Student’s suspected disability contributed to this information gap. Therefore, I find that the DOE denied the Student with a FAPE vis-à-vis his feeding needs.
- • The DOE Denied the Student a FAPE by Removing a Toileting Paraprofessional There was no dispute between the Parties that Student required assistance in his toileting needs. District Representative acknowledged in her testimony that Student had an assigned toileting paraprofessional “from September [2021] until April 2022.”[66] Subsequently, however, a toileting para was removed from Student’s newly created IEP because “District 75 does not utilize toileting paras on the IEP [because] there is a classroom para and it is embedded within the school schedule to do toileting.”[67] In response to IHO’s questioning, District Representative further testified that during the September 2021 through April 2022 a toileting paraprofessional had been assigned to Student “because it was on the IEP [the CSE] was given. So, until the [the CSE] had the [April 2022] IEP meeting, [the CSE] kept the toileting para in the classroom.”[68] Despite having a toileting paraprofessional assigned to Student up to the April 2022 IEP, District Representative testified that the reason for the removal of paraprofessional was a result of “District 75 procedure,”[69] and not because it was a service that Student did not require, or that the presence of a non-dedicated paraprofessional in the classroom could adequately address Student’s needs. The IEP itself references Parent’s concern with the removal of the toileting para, and the CSE indicated that “as per District a toileting paraprofessional is not permitted.”[70] The DOE’s ability to provide a toileting paraprofessional was constrained by an unexplained District policy that resulted from a bureaucratic hurdle that was easily overcome when the service was previously mandated in Student’s prior IEP, but one that could not be included in the new IEP as a matter of course.[71]
I find that the decision not to consider a toileting paraprofessional under these circumstances denied the Student of a FAPE.
- • Transportation Violations Alleged During the DPH Were Unripe and Beyond the Scope of the Hearing Under the IDEA, transportation is considered as a related service in the same manner as modifications or accommodations that the Student may require to assist a student to benefit from the provision of special education.[72] New York State law further defines special education as "specially designed instruction... and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs."[73] In this case, the DPC does not allege that Student has been deprived of transportation services. Parent generally asserts a right for appropriate transportation in the form of requested relief, but not as a result of a substantive violation of a denial of FAPE, or even a procedural one. The only reference to transportation in the DPC appears in the last page whereby Parent requests the undersigned IHO to “order the Department to directly fund the cost of the Student’s…cost of transportation and other related expenses…”[74] Parent’s claim for the alleged transportation issues fails on two grounds: First, the DPC does not allege a violation, and does not comport with the minimal pleadings requirements as explained infra. Second, the DPC could not allege a violation because the alleged problem was unripe as it took place in September 2022, two months after the DPC’s filing in July 2022.
- • DPC Deficiency “When a matter arises that did not appear in a due process complaint notice, the next inquiry focuses on whether the district, through the questioning of its witnesses, "open[ed] the door" to the issue under the holding of M.H. v. New York City Department of Education (685 F.3d at 250-51).” Here, the DOE contested all the circumstances surrounding the DPC, but never opened the door with respect to issues related to transportation. In B.P. v. New York City Dep't of Educ.,[75] the court held that “[t]he scope of the inquiry of the IHO, and therefore the SRO..., is limited to matters either raised in the... impartial hearing request or agreed to by [the opposing party],"[76] and the assertion that “general reservation of rights in [Parents’] impartial hearing request preserves additional procedural arguments…fails. A conclusion to the contrary would impermissibly expand the scope of the review of this Court beyond its statutory authority.”[77] In addition, although the DOE has the burden of production and persuasion, it cannot fairly defend a claim on which it was not on notice to defend. It would not be proper for an alleged violation yet to occur on the date of the filing of the DPC and subsequently alleged in the intervening time between the filing of the DPC and the hearing.
- • Ripeness Parent’s Attorney argued that “[t]ransportation is a basic right,”[78] with the implication that the IHO could properly rule on an issue that did not exist when the DPC was filed in July 2022, and that the DOE should defend a claim raised—tangentially—in Parent’s disclosure, for a problem that allegedly arose in September 2022. Parent’s Attorney is correct that “the Parent would be unable to tell if there was [sic] transportation issues arising in September if that’s when they started and the complaint was filed in July,”[79] but it was Parent’s decision to file the DPC when she did, and the claim was unripe. Parent’s Attorney further argues in her closing brief that “a Parent’s DPC must be submitted based on the information the Parent knew or should have known by the date of filing. 200.5(j)(1)(i). As such, if an incident occurs, related to the school year at issue that was previously unknown to the Parent at the time of filing, the Parent is able to address these issues at hearing.”[80] Parent’s Attorney’s citation of 8 NYCRR 200.5(j)(1)(i) does not shed light on the issue. That provision relates to the timing of the complaint vis-à-vis Statue of Limitations (“SOL”) considerations, but even if the provision were more expansively interpreted, the language therein annunciating the standard of “Knew or Should Have Known” (“KOSHK”) (ensconced in caselaw and 8 NYCRR 200.5) cannot reasonably suggest that an unripe claim that arises in the future (after the DPC was filed) would somehow relate back to the initial filing of a DPC, or fairly place the DOE on notice that there was a problem to defend; it would be illogical to merely assume that a future problem would subsequently arise, and therefore vitiate the need for even the minimal pleadings standards under the IDEA. Contrary to Parent’s Attorney’s assertion, the issue of transportation was not merely ‘unknown’ at the time the complaint was filed; it was unknowable.
The immediate next subsection in Commissioner’s Regulations, i.e., 8 NYCRR 200.5(j)(1)(ii), squarely contradicts Parent’s contention in that “[t]he party requesting the impartial due process hearing shall not be allowed to raise issues at the impartial due process hearing that were not raised in the notice filed under subdivision (i) of this section, unless the other party agrees otherwise” (emphasis added). DOE did not agree to the inclusion of the purported belated problems related to transportation, and specifically and appropriately objected to the introduction of testimony and documentation that attempted to impermissibly broaden the scope of the hearing.[81]
Subject to SOL concerns that are not extant in this case (or in any instance where a claimed IDEA violation had not yet occurred) the timing of the filing of a DPC is entirely within the Parent’s purview, and Parent could have alternatively requested leave to amend the then-unripe issue in the DPC. Since an amendment was not sought prior to the hearing, Parent’s remedy is to file a DPC that specifically alleges a denial of FAPE on this basis after the alleged violation has occurred; not before. As I find that the claim for alleged transportation irregularities did not exist at the time the DPC was filed, was neither properly nor timely asserted, nor could have been minimally pleaded in July 2022 when the DPC was filed, I will therefore not address the matter on the merits.
D. Conclusion
Although not dispositive, the neuropsychologist opined that “[i]t is improbable that an appropriate placement exists within the DOE given [Student’s] complex educational and clinical needs. Despite having been placed in a special class, [Student] has not made meaningful progress. It is likely that [Student] will need to be placed in a nonpublic or private school. As stated, [Student] requires a highly specialized educational program that provides intensive treatment for students with ASD, language disorders, associated learning disabilities and impaired executive functions.”[82] Based on the evidence at the DPH, the neuropsychologist’s assessment is in line with the DOE’s denial of Student’s right to a FAPE.
As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden at hearing. Therefore, I am constrained to find that the DOE failed to offer the Student FAPE for the 2022-2023, 12-month, school year. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer FAPE for the, 12-month, 2022-2023 school year.
- • The Unilateral Placement Was Appropriate (Burlington/Carter Prong II)
A private school placement must be "proper under the Act."[83] This means that the private school must offer an educational program which met the student's special education needs.[84] Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate."[85] 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.'"[86]
Parents need not show that the placement provides every special service necessary to maximize the student's potential, and 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."[87] A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student.[88]
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.[89]
The DOE presented no evidence or rebuttal that Parent’s unilateral placement was inappropriate other than to state in conclusory fashion in their closing brief that the Private School was not.[90] Parent provided the Private School program description,[91] and summer schedule.[92] Private School Principal testified via an extensively detailed affidavit that she is familiar with Student and his needs, that Student was placed in a classroom that would address those needs, and described the services Student was receiving at the Private School.[93] I find the testimony credible and unrebutted by the DOE.
Based on the evidence presented at the hearing I find that Parents have met their burden in proving that the private program offered an educational program which met Student’s need under Prong II of the Burlington/Carter standard.
In reviewing the testimony and documents presented, the weight of the evidence establishes that Student’s individual special education needs were addressed by the Private School and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits."[94]
- • Equities (Burlington/Carter Prong III)
Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant."[95] In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect.[96]
By way of relief, Parent seeks reimbursement[97] for their private school tuition costs and to have the balance of unpaid tuition sent directly to the Private School. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA, and Parent may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so.” The evidence[98] submitted by the Parent indicates that Parent does not have the financial means to pay the tuition and subsequently seek reimbursement from the DOE.[99]
One deficiency in Parent’s equitable standing is the fact that although the TDN was properly sent to the DOE on 6/16/2022[100] after the 4/5/2022[101] IEP meeting, the CSE reconvened on 6/21/2022, which was five days after the Parent’s TDN; there was no additional TDN served on the DOE following the reconvene. The record is not clear as to whether the reconvene was in response to the Parent’s TDN or that it was previously scheduled to take place, but Parent should have sent a second TDN after the reconvene informing the DOE that the Student would still be unilaterally placed. Parent’s affidavit testimony also buttresses this defect in that she stated that that “[o]n June 21, 2022, the Department held an IEP meeting for [Student] for the upcoming 2022-2023 [] school year. However, [Parent] did not agree with this IEP for many reasons.”[102] Parent then testified in her affidavit that “[o]n June 16, 2022, [Parent] sent the Department a letter of [her] intent to place [Student] at [Private School] for the 22/23 school [sic], absent an appropriate placement recommendation.”[103] It is logically inconsistent for Parent to testify about a disagreement with an IEP that took place after the Parent sent a TDN. Relatedly, Parent testified that she had “not received any response from the Department or a school placement recommendation,”[104] but Parent’s own disclosure packet includes the DOE’s “Prior Written Notice Package for Placement” as Ex. P-K dated June 24, 2022.
It is well established that a Parent must inform the CSE during the most recent CSE meeting, or notify the District at least ten days prior to the Student’s 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."[105] 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."[106] “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.”[107]
Nevertheless, since the DOE has the burden of production and persuasion in this issue, and having failed to fully explain the purpose and timing of the reconvene vis-à-vis the Parent’s TDN, I find that the reconvene was not in response to Parent’s notification of her intent to unilaterally place the Student, which partially mitigates the need for a second TDN. Further, the record indicates that the reconvene did not make substantial changes other than the inclusion of the FBA and BIP, and it appears that the placement recommendations from the April 2022 IEP was essentially and materially unchanged in the June 2022 IEP, which the DOE should have understood as not addressing all of Parent’s concerns when the TDN was initially filed.
Considering the above mitigating factors, and although a reduction in the tuition award would be appropriate otherwise, I find that the in pari delicto standard applies as well. The DOE failed to file a Due Process Response to Parent’s DPC as required under 8 NYCRR Section 200.5(i)(4), or issue a Prior Written Notice (“PWN”) explaining “why the school district proposed or refused to take action raised in the complaint.” No resolution meeting was held despite the requirements outlined in 8 NYCRR Section 200.5(j)(2). The DOE did not challenge the inadequacy of Parent’s TDN requirements and presented no alternative lower equitable award amount to account for the deficiency.
Finally, although I am troubled by the submission of what appears to be an altered document as a Parent’s exhibit,[108] the document (related to transportation issues that have been denied on other grounds) would have had no effect on the substance of the Parent’s otherwise meritorious claims.
Therefore, considering the totality of the circumstances, and the absence of a contrary view by the DOE other than to summarily deny Parent an equitable award in toto, I find that whatever tuition award reduction I would have applied in this case is equally mitigated by the DOE’s own failures, and I decline to reduce the equitable award. Despite this finding, however, there is an additional issue with Parent’s tuition funding request.
Aside from the other problems presented in this case, to include the absence of a second TDN after the CSE reconvened, the attempted introduction of apparent altered document, and most importantly, the negative effects on the Student himself being deprived a FAPE, the undersigned IHO is perplexed that Parent’s attorney’s otherwise voluminously-documented case contains a flaw to the award of tuition: there is no tuition contract in the record, or conclusive independent evidence that the Parent is legally obligated to pay tuition.
In E.M. v. New York City Dep't of Educ.[109] The Second Circuit directly addressed the requirements of the need for a contract and a Parent’s obligation to pay a unilateral placement’s tuition under IDEA claims. The assumption in the decision was that there was a contract. There is no conclusive evidence that the Parent is obligated to pay the Private School tuition absent a finding that the DOE denied the Student a FAPE and would be required to fund the tuition, although there is an indication that a contract exists. Ex. P-T titled “Parental Obligations Addendum to the Parental Guarantee of Tuition,”[110] makes no reference to the tuition amount, parent’s obligation to pay, or what would take place if tuition were not paid. This addendum refers to another document titled “Parental Guarantee of Tuition” which is not in the record. Ex. P-U is an affidavit from the Private School that refers to a contract, the amount already paid by Parent, and the amount of tuition remaining due.
The omission of the tuition contract cannot be reasonably explained, as well as the failure to address it during the DPH. There may be many reasons for this deficiency in this case, and it is beyond this IHO’s purview to try and unpack how this could have taken place. This case demonstrates that the financial stakes, bureaucracy, and volume of cases involved in special education hearings has caused litigants’ attorneys on all sides to lose sight of the fact that a free and appropriate public education is not merely a legal catchphrase to be taken lightly, or that checked boxes in documents are mere formalities. Litigants’ actions have significant effects on students who are ensnared in the legal machinations designed to determine their educational future, and ultimately, well-being. An IHO’s decision cannot be viewed as another mere formality designed to enable litigants to make assertions and representations without all of the necessary evidence required to prevail.
Therefore, without a tuition contract, and absent a showing that the Parent is obligated to pay tuition, I decline to order prospective tuition payment directly to the Private School despite Parent’s showing of her inability to pay.[111] However, since the record contains sufficient information that Student is subject to tuition expenses and DOE’s failure to provide a FAPE, I would be remiss in simply denying Student’s right to receive a free and appropriate public education. Therefore, the DOE will be required to reimburse Parent for any tuition expenses incurred for the, 12-month, 2022-2023 school year upon presentation of paid receipts in addition to presentation of a validly executed tuition contract; such an award would be limited to the extent Parent is required to pay tuition under the provisions of the tuition contract.
Overall and after considering the record at hearing, I find that the equities support Parent’s claim for tuition reimbursement, but not direct funding.
- • Section 504 Claims Parents asserted a claim under Section 504 of the Rehabilitation Act for all of the School Year in question.[112] Section 504 requires that school districts provide qualified students with a “free appropriate public education… regardless of the nature or severity of the person’s [disability].”[113] Under Section 504, an appropriate education means “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to [504’s] procedures.”[114] An individual with a disability includes any person who “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having an impairment.”[115] However, only students who have a substantial limitation of a major life activity are entitled to a FAPE.[116] Section 504 and the Americans with Disabilities Act share the same non-exhaustive list of major life activities, which include seeing, hearing, eating, walking, standing, sitting, speaking, learning, reading, concentrating, thinking, writing, and communicating, among others.[117] The student’s parents bear the burden of proof, both in production and persuasion, on any claim under Section 504 of the Rehabilitation Act.[118]
Section 504 requires that recipients of federal funds that operate public educational programs or activities must “establish and implement... a system of procedural safeguards that includes...an impartial hearing with opportunity for participation by the [student’s] parents or guardian and representation by counsel, and a review procedure.”[119] Impartial Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act if delegated the authority by the Local Education Agency (LEA). The New York City Department of Education delegated to OATH the authority to adjudicate due process complaints under Section 504.[120]
I find that all of Parents’ 504 claims are subsumed within the statutory framework of the IDEA, and that the Parents did not identify any specific regulatory requirement under 504 that is not subsumed under the IDEA and that would merit separate analysis and discussion. Therefore, I do not separately address factual determinations or analyze the 504 claims related thereto.
V. Order
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY
- • ORDERED that the DOE shall reimburse Parent for Private School tuition in an amount not to exceed $145,632.50 for the 2022-2023, 12-month, school year, within 14 days of presentation by the Parent of paid receipts, which can be presented on an ongoing basis without an expiration date for reimbursement, as well as presentation of the fully executed tuition contract.
- • The Parent’s obligation to pay the Private School shall serve as a cap to the DOE’s reimbursement of any tuition due under the terms of the tuition contract.
- • ORDERED that the DOE shall immediately arrange for and provide Parent Counseling and Training per the mandates of the Student’s IEP, but that the frequency of the sessions be 60-minute sessions, four times per month. To the extent the DOE has failed to provide PCAT, the DOE shall provide additional 1-hour sessions for each one missed since the beginning of the 12-month 2022-2023 School Year up to the date of this order.
SO ORDERED,
Dated: 7/10/2023
Dr. Oren Varnai, Esq., IHO
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 – ADMITTED EXHIBITS
EXHIBIT NUMBER
DATE
DESCRIPTION
NO. OF PAGES
Parent’s
Exhibits:
A 07/15/22 Parent’s Hearing Request 11
B 04/05/22 Individualized Education Program (IEP Reconvene held on 06/21/22) 42
C 06/08/21 Department Assistive Technology (AT) Evaluation 10
D 02/24/22 Independent Speech-Language Evaluation 13
E 03/11/22 Independent Occupational Therapy Evaluation 25
F 03/11/22 Independent Physical Therapy Evaluation 11
G 03/13/22 Independent Neuropsychological Evaluation 21
H 04/10/22 Independent Functional Behavior Assessment (FBA) And Behavior Intervention Plan (BIP) 19
I 06/03/22 Department Teacher Academic Evaluation 9
J 06/16/22 Ten Day Notice Letter and Receipt 7
K 06/24/22 Prior Written Notice Package for Placement 4
L 06/25/22 Parent Email to School re: Student’s AT Device 1
M 07/22/21 Parent Emails to Department re: Placement 6
N 10/19/21- 10/28/21 Parent Emails to Department re: Paraprofessional 2
O
EXCLUDED
P
EXCLUDED
Q 05/05/21 Rate Sheet from Services Provider 1
R Undated Resume of Private School Principal 2
S 2022 Private School Program Description 2
T 07/08/22 Private School 2022-2023 Tuition Agreement 2
U 09/01/22 Private School 2022-2023 Tuition Affidavit 1
V 2022 Private School 2022-2023 Summer Schedule 1
W 9/20/22 Affidavit of Parent 8
X 09/15/22 Affidavit of Private School Principal 8 District’s Exhibits:
1
07/15/22
Due Process Complaint
11
2
04/05/22
IEP
40
3
06/21/22
IEP (Reconvene to Add Paraprofessional and FBA/BIP)
43
4
04/08/22
Prior Written Notice
3
5
03/13/22
Neuropsychological Evaluation
46
6
02/24/22
Speech & Language Evaluation
13
7
03/11/22
Occupational Therapy Evaluation
25
8
05/22/22
Physical Therapy Progress Report (and Evaluation)
4
9
03/28/22
Speech and Language Evaluation
4
10
05/31/22
Occupational Therapy Evaluation
6
11
06/03/22
Teacher Academic Evaluation Report
10
12
06/02/22
BIP
5
13
07/06/22
Events Log (04/20/21-07/06/22)
8
14
11/16/21
SOPM Page 93
1
15
04/15/21
IEP
27
16
04/15/21
IEP (Revised)
30
17
05/21/21
Prior Written Notice
3
18
EXCLUDED
19
04/07/22
Email chain with Parent
2
20
04/06/22
Email to Parent with attachments
5
21
04/07/22
Email chain with Parent
2
22
05/11/22
Letter from Parent
1
IHO Exhibits:
1
10/14/2022
DOE Closing Brief
8
2
Undated
Parent’s Closing Brief
29
3
9/13/2022
Emails regarding transportation
2
Footnotes
[1] Tr. p. 13.
[2] Id.
[3] Id.
[4] Ex. P-B.
[5] Tr. pp. 14-15.
[6] Ex. IHO-1, 3-4.
[7] See generally, DOE’s exhibits.
[8] Ex. IHO-1, 5-6. In their closing brief, DOE’s header mistakenly recites the legal standard in that “Parent Failed to Meet Their Burden to Show that the Unilateral Placement is Inappropriate.”
[9] Tr. pp. 77-90.
[10] Ex. IHO-2, 4.
[11] Ex. IHO-2, 5.
[12] Ex. IHO-2, 7.
[13] Ex. IHO-2, 8-16.
[14] U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982].
[15] Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85.
[16] Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[17] Walczak v. Fla. 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].
[18] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017].
[19] R.E., 694 F.3d at 190-91.
[20] M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003].
[21] 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.
[22] U.S.C. § 1415[f][3][E][i].
[23] Rowley, 458 U.S. at 203.
[24] Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189.
[25] Endrew F., 137 S. Ct. at 1001.
[26] 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.
[27] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.
[28] 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].
[29] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001.
[30] 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.
[31] CFR 300.320[a][1]; 8 NYCRR §200.4[d][2][i].
[32] CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR §200.4[d][2][iii].
[33] CFR 300.320[a][4]; 8 NYCRR §200.4[d][2][v].
[34] Endrew F., 137 S. Ct. at 1000.
[35] See generally 34 C.F.R. § 300.320(d)(1) (information other than that specifically required by 614 of the Act not required to be included in a Student’s IEP); 8 NYCRR § 200.13 (no methodology included in requirements for educational programs for students with autism).
[36] See Rowley, 458 U.S. at 204; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 575-76 (2d Cir. 2014); A.S. v. New York City Dep't of Educ., 573 Fed. App'x 63, 66 (2d Cir. 2014); K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 86 (2d Cir. 2013); R.E., 694 F.3d at 192-94; M.H., 685 F.3d at 257.
[37] A.M. v. N.Y. City Dep’t of Educ., 845 F.3d at 543 quoting R.E. v. N.Y. City Dep’t of Educ., 694 F.3d at 190 (internal quotations omitted).
[38] R.E., 694 F.3d at 194.
[39] Ex. P-G.
[40] Ex. P-G, 15.
[41] Ex. P-G, 16.
[42] Tr. p. 68; emphasis added.
[43] R.E., 694 F.3d at 194.
[44] Tr. p. 61.
[45] Ex. P-A, 6.
[46] Ex. IHO-2, 18.
[47] Ex. P-A, 10.
[48] Ex. P-B, 33; emphasis added.
[49] Ex. P-W, 7.
[50] Ex. P-A, 10.
[51] Tr. p. 66.
[52] Tr. pp. 66-67.
[54] see, e.g., F.L. v. New York City Dep't of Educ., 2016 WL 3211969, at *11 [S.D.N.Y. June 8, 2016]; L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *8-*10 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100 [2d Cir. Jan. 19, 2017]; P.S. v. New York City Dep't of Educ., 2014 WL 3673603, at *13-*14 [S.D.N.Y. Jul. 24, 2014]; M.L. v. New York City Dep't of Educ., 2014 WL 1301957, at *11 [S.D.N.Y. Mar. 31, 2014]; K.L. v. New York City Dep't of Educ., 2012 WL 4017822, at *14 [S.D.N.Y. Aug. 23, 2012], aff'd, 530 Fed. App'x 81 [2d Cir. July 24, 2013]; Student X, 2008 WL 4890440, at *17; A.D. v. New York City Dep't of Educ., 2008 WL 8993558, at *7 [S.D.N.Y. Apr. 21, 2008]; see also Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 [10th Cir. 2008]; Gonzalez v. Puerto Rico Dep't of Educ., 254 F.3d 350, 353 [1st Cir. 2001]; Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 [11th Cir. 2001]; JSK v. Hendry County Sch. Bd., 941 F.2d 1563, 1573 [11th Cir 1991].
[55] Tr. p. 67; (Emphasis added).
[56] State Appeal No. 22-095 quoting Walczak, 142 F.3d at 132.
[57] Id, (emphasis in original) quoting Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148.
[58] Ex. P-G, 17.
[59] Ex. P-G17-G18.
[60] R.B. v. New York City Dep't of Educ., 2013 WL 5438605, at *15 [S.D.N.Y. Sept. 27, 2013] ["While the record indicates that [the student] may have benefited from home-based services, it contains no indication that such services were necessary"], aff'd, 589 Fed. App'x 572 [2d Cir. Oct. 29, 2014].
[61] Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 756 [2d Cir. 2018], cert. denied sub nom., 139 S. Ct. 322 [2018].
[62] Tr. p. 46.
[63] Tr. p. 59.
[64] R.E., 694 F.3d at 190-91.
[65] 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.
[66] Tr. p. 48.
[67] Tr. p. 47.
[68] Tr. pp. 59-60.
[69] Tr. p. 61.
[70] Ex. P-B, 41.
[71] Although it is unclear whether the inclusion of a toileting paraprofessional in Student’s prior IEP was the result of another IHO determination to provide such service, this IHO observes a trend where the CSE incorporates IHO orders in an IEP as a ministerial function only, and subsequently fails to consider the merits undergirding such decision in the creation of students’ new IEPs. Although each individual school year must be considered on its own when developing IEPs, the DOE’s practice to (legally) comply with IHOs’ orders continues to be limited to the school year for which a decision was rendered without considering the impact on a student’s right to a FAPE by removing services later on without addressing the substance of the IHO’s decision. IHOs address the denials of FAPE in a specific school year of a student’s program. An IHO’s finding that a student requires a specific service or program to provide a FAPE in a particular year cannot be viewed as having an expiration date that always perfectly aligns with the next school year. Although there is a bright line where an IHO’s decision ceases to bind the DOE’s legal requirements to implement the order, the merits of the IHO’s rationale for an order should not be viewed as evaporating or requiring no additional consideration in a subsequent CSE meeting.
[72] U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16].
[73] Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww].
[74] Ex. P-A-10.
[75] F. Supp. 2d 605, 611 [E.D.N.Y. 2012].
[76] Id. Emphasis added.
[77] Id; See 20 U.S.C. § 1415(f)(3)(B); 34 C.F.R. § 300.511(d); 8 N.Y.C.R.R. 200.5(j)(1)(ii).
[78] Tr. p. 94.
[79] Tr. p. 95.
[80] Ex. IHO-2, 25.
[81] Tr. pp. 93-94.
[82] Ex. P-G, 17.
[83] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985).
[84] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998).
[85] Gagliardo, 489 F.3d at 112.
[86] Id., quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).
[87] Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115.
[88] 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).
[89] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
[90] Ex. IHO-1, 1-5.
[91] Ex. P-S.
[92] Ex. P-V.
[93] Ex. P-W.
[94] Frank G., 459 F.3d at 364.
[95] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009).
[96] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[97] The entitlement created by the law is exclusively the package of rights to a free appropriate public education in the least restrictive environment. While the statute creates a broad power on the part of decision-makers to devise remedies when that entitlement has been denied, those powers are discretionary and do not yield a right to receive reimbursement; reimbursement is merely an option, at the discretion of the decision maker, as he or she balances the equities of the individual case. To call a case a ‘reimbursement’ case is, therefore, to mischaracterize the parties’ rights and responsibilities by treating a discretionary remedy as though it were an inviolable right. For that reason, there is no such thing as a ‘reimbursement’ or ‘prospective payment’ case under the IDEA. There is, simply, no right or entitlement to receive either of those remedies under the statute.
[98] Ex. P-I.
[99] See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011).
[100] Ex. P-J.
[101] Ex. P-B.
[102] Ex. P-X, 4, para 20.
[103] Ex. P-X, 4, para 21.
[104] Id.
[105] U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].
[106] State Appeal No. 22-050 quoting Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st 29 Cir. 2004].
[107] Id, citing 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. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68
[108] Ex. IHO-3; Tr. pp. 77-90. Had I possessed the authority to so, I would have considered this conduct as grounds to reduce attorney fees.
[109] F.3d 442 [2nd Cir. 2014].
[110] Although the exhibit is described as a “Tuition Agreement” in Parent’s exhibit list, the label is more than merely inaccurate.
[111] Ex. P-X, 8.
[112] Ex. P-A, 7.
[113] C.F.R. § 104.33(a).
[114] C.F.R. § 104.33(b).
[115] C.F.R. §104.3(j)(1).
[116] U.S.C. § 705(20)(B)(i); 42 U.S.C. § 12102(2).
[117] See 28 C.F.R. § 35.108(c)(1)(ii).
[118] See e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990); S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y. 2007).
[119] C.F.R. § 104.36.
[120] NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504-delegation-Signed.pdf.