New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 577168 - NYC: 229656

FINDINGS OF FACT AND DECISION

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

Date of Birth: [REDACTED]

School District: [REDACTED]

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

Request Date/Date Complaint Filed: August 4, 2022

Date(s) of Hearing: December 8, 2022; January 10, 2023; January 19, 2023; February 13, 2023

Actual Record Closed Date: April 30, 2023

Date of Decision: May 1, 2023

Date of Distribution if Different than Decision Date: May ^[1], 2023 Hearing Officer: Mercedes Cesaratto

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 8, 2022

For the Student:

[REDACTED], Esq. (hereinafter Parent’s attorney)

[REDACTED]

300 East 95th Street- Suite 130 New York, NY 10128

For the Department of Education:

[REDACTED] Esq. (herein after DOE attorney)

Agency Attorney

Special Education Unit

Office of the General Counsel

New York City Department of Education

333 7th Avenue, 12th Floor.

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 10, 2023

For the Student:

Parent Attorney

For the Department of Education:

DOE Attorney

[REDACTED] - DOE CPSE Administrator (Herein after “Administrator)

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 19, 2023

For the Student:

Parent Attorney

[REDACTED] Director of [REDACTED] (Herein after Director)

For the Department of Education:

DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 13, 2023

For the Student:

Parent Attorney

Director

For the Department of Education:

DOE Attorney

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parents’ Due Process Complaint (“DPC") filed on or about August 4, 2022 (P-A) ^[2]. The Parent alleged that the Department of Education (“DOE”) failed to provide the Student with a free appropriate public education (“FAPE”) for the 2021-22 and 2022-23 school years (“SYs at Issue”).

For the failure to provide the Student with a FAPE, the Parent is requesting the following relief:

a. An Order declaring that DOE denied Student a FAPE during the 2021-22 and 2022- 23 school years;

b. A determination that Private School is an appropriate placement for Student;

c. An Order directing payment by DOE directly to Private School for the cost of Full Tuition for the 2021-22 and 2022-23 school years in addition to the costs of related services, a 1:1 paraprofessional, as needed;

d. Direct payment/prospective funding of special education transportation with limited time travel, a 1:1 transportation nurse and/or paraprofessional, air conditioning, a lift bus; and a regular-sized wheelchair;

e. An order directing the DOE to fund an independent neuropsychological evaluation. ^[3]

The DOE contends it provided the Student with a FAPE for the 2021-2022 SY. However, the DOE conceded it did not provide the Student with a FAPE for the 2022-2023 SY. The DOE did not present a case as to whether a FAPE was made available to the Student under Prong I of the Burlington-Carter analysis for the 2022-23 SY. Specifically, the Department of Education failed to defend whether the Student had been provided a FAPE for the 2022-2023. DOE Closing Brief. Rather, the Department of Education alleges the Parents failed to prove the unilateral placement of the Student at the Private School was appropriate and thus, failed to meet their burden under Prong II. The DOE alleged that the Parents are not entitled to the requested relief for tuition and transportation to Private School because Private School did not provide an educational benefit to the Student and the educational instruction was not tailored to meet the educational needs of the Student. The DOE further contends the equities do not favor the Parent because the Parent did not testify at the hearing, and the Parent failed to cooperate. The DOE further contends the case should be dismissed for failure to prosecute because the Parent did not appear or testify at the merits hearing. 4

On August 29, 2022, I was appointed to hear this matter. A resolution meeting was not held. On September 13, 2022, a pre-hearing conference was held with representatives for both parties present. Status hearings were held on October ^[4], 2022 and November 3, 2022. A merits hearing was held on December 8, 2022, January 10, 2023, January 19, 2023, and February 13, 2023. It was a closed hearing, and Parents were represented by Parents’ Attorney. The DOE was represented by DOE Attorney. Parents presented testimonial and documentary evidence. Parents entered into evidence exhibits P-A through P-J and P-L and presented one witness – the Director of Special Education at the Private School (“Director”). The DOE presented one witness- Committee on Pre-School Special Education Administrator (“Administrator”) and submitted documentary evidence in the form of exhibits D-1-16. 5 Both parties submitted closing briefs attached as IHO exhibits. A list of the documentary evidence in this proceeding is appended to this decision.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.^[5] et seq.

BACKGROUND

On June 10, 2022, the Student was classified by the DOE’s Committee on PreSchool Special Education (“CPSE”) as a pre-school student with a disability. The Student’s classification and entitlement to special education programming are not in dispute. The Student has been diagnosed with, inter alia, cerebral palsy, low vision and developmental delays and has global delays as a result of Student’s diagnosis. (Ex. P-J) The Student is non-verbal and non-ambulatory, and dependent on adult support for all activities of daily living (“ADL”). (Ex. Id.)

On August 4, 2022, a DPC was filed against the DOE by the Parents’ Attorney on behalf of the Student, under Case No. 229656, pursuant to the Individuals with Disabilities Education Act (“IDEA”, or the “Act”) [20 U.S.C. § 1415(f)] and Section 4404(1) of the New York State Education Law (“Education Law”). Ex. A. The Student was at the time of the Due Process Complaint (“DPC”) enrolled at the Private School.

According to the DPC, on June 10, 2021, the Committee on Special Education (“CPSE”) convened to develop an Individualized Education Program for the 12 month school year for 2021-2022, only. Ex. P-A. The DPC asserts that the DOE failed to provide the Student with a Free Appropriate Public Education (FAPE) by engaging in both procedural and substantive violations for the 2021-22, and 2022-23 school years. Ex. P-A. The DPC asserts, among other things, that the DOE failed (i) to recommend an appropriate public school location; (ii) to mandate appropriate related services (i.e., failed to recommend OT, PT and SL Therapy in the appropriate frequency and duration in order to maintain Student’s progress, failed to provide other related services- assistive technology, music and vision education services); (iii) to provide Parents meaningful participation in the IEP process; (iv) to mandate appropriate special education transportation services and accommodations; and (v) to develop an IEP for the 2022-23 school year. Ex. P-A.

Following the June 10, 2021 IEP meeting and the Parent’s frustration that Student had not been provided with the specialized appropriate transportation to the Public School, the Parent provided the District with 10-day notices and thereafter unilaterally placed Student in the Private School for the 2021-2022 and 2022-2023 SY’s. The May 27, 2022 notice notified the DOE that Parent intended to place the Student in the Private School for the 2021-22 school year. Ex. P-D. The June 21, 2022 notice notified the DOE that Parent intends to place the Student in the Private School for the 2022-23 school year. Ex. P-G. The Student began attending the Private School in June 2022 until October 20, 2022. (Parent Closing Brief pg. 3)

ISSUES

The issues to be addressed are whether: (i) the District provided the Student a Fair Appropriate Public Education (“FAPE”), and (ii) the Parent is entitled to tuition reimbursement following their unilateral placement, including for tuition, related services and transportation,

FINDINGS OF FACT

June 10, 2022- IEP (2021-2022 school year)

On June 10, 2021, a CPSE meeting was held for the Student. The Student was classified as a pre-school Student with a disability and recommended an 8:1:2 class with a 1:1 health paraprofessional (Ex. D-3) The Student was also recommended Speech Language Therapy (“SL”) 2x a week for 30 minutes; Occupational Therapy (OT) for 2x a week for 30 minutes; and Physical Therapy (PT) 3x a week for 30 minutes for a 12 month school year. The IEP also provided for an individualized health paraprofessional. At the time of the IEP meeting, all required members of the IEP team were present, including the Parent. The Student’s IEP was amended in November 2021 to include an individual nurse on the bus. (D-5). The DOE Administrator testified that the 8:1:2 program recommendation for the Student was in the least restrictive environment. (Ex. D-16) The Administrator testified that the time and frequency of the recommended related services was based on the available documentation made available to the team at the time of the IEP meeting. The DOE contends therefore, the IEP program recommendation was appropriate as it afforded the Student the opportunity to make progress in the least restrictive environment.

DOE did not develop an IEP for the 2022-2023 School Year The DOE conceded it did not provide a FAPE to the Student for the 2022-2023 school year and did not defend Prong I under the Burlington/ Carter analysis. The DOE argues the Parent cannot sustain their burden in establishing the Private School was an appropriate unilateral placement for the Student. Specifically, DOE argue the Parent did not present evidence regarding the qualifications of the teachers/educators from the Private School. Secondly, the DOE argues the Parent failed to demonstrate the Private School developed an educational program specially designed to meet the unique educational needs of the Student. Finally, the DOE contends the equities do not favor the Parent. The DOE argues the Student was to start Public School in September 2021 but due to “circumstances” created by the Parent, the Student did not begin at the Public School until March 2022.

Student’s transportation needs were recommended as transportation from closest curb to school, and wheelchair accessible lift bus. Ex. P-B. No assistive technology devices or services were specified in the IEP. Ex. P-B; D-4, 5.

B. Parents’ 10-Day Notices and Unilateral Placement at Private School On April 15, 2022, Parent provided the District with a ten-day notice for the 2021-22 school year. Ex. P-E. On June 17, 2022, Parent provided the District with a ten-day notice for the 2022-23 school year. Ex. P-J.

C. Parent’s Placement In Private School On May 31, 2022, Parent entered into an enrollment contract for May 23, 2022 until June 24, 2022 SY at a pro-rated cost for tuition of $13,758.93. (Ex. P-I, at 1) The tuition included the cost of an individual paraprofessional, and school nurse and academic programming. Ex. P-I, at 2. Additional supplemental tuition costs of $10,389.^[60] were provided to cover under the contract the costs of related services, transportation paraprofessional, any individual nursing services and assistive technology devices and equipment. Ex. P-I, at 2. This contract included individual OT to the Student 5 times per week for 60-minute sessions, individual SL Therapy to the Student of 5 times per week for 2022, Parent entered into an enrollment contract for July 6, 2022 until June 23, 2023 SY at a tuition cost of $175,000. (Ex. P-C, at 1) The tuition includes the cost of an individual paraprofessional, and school nurse and academic programming. Ex. P-C, at 1. Additional supplemental costs of $106,814.40 were provided to cover under the contract the costs of related services, transportation paraprofessional, any individual nursing services and assistive technology devices and equipment. Ex. P-C, at 2. This contract included individual OT to the Student 5 times per week for 60-minute sessions, individual SL Therapy to the Student of 5 times per week for 60 minutes a session, individual PT to the Student 5 times per week or 60-minute sessions; Individual Visual Physical Education Services two times per week for 60 minute sessions; Individual Assistive Technology Services of 1 time per week for 60 minutes per session; Music Therapy for 3 times per week for 60 minute sessions; Parent Counseling and Training for 1 a month for 60 minutes. Ex. P-C, at 2. The total cost was $281,814.40. ( Ex. P-C, at 2). The Student was enrolled at the start of the School year, for 2022-2023, however, on October 20, 2022, the Student was disenrolled from the Private School.

D. Private School and Related Services

The Director of Special Education at the Private School (“Director”) provided affidavit and direct testimony regarding the Private School educational program, the services Student is receiving at the Private School and her educational progress. (See Ex. P-L) Director describes Student as non-verbal and non-ambulatory and requiring assistance in all activities of daily livening. (Ex. P-L). Student began attending Private School in May 2022, and attended the 12-month Private School program during May and June of 2022, and during some of the 2022-23 SY until October 20, 2022. (Ex. P-L).

Director testified that Private School is a highly specialized program which is focused on educating students with brain injuries and brain-based disorders. Ex. P-N, at

2. All of the students at Private School require 1:1 paraprofessionals to assist with Many students also require 1:1 nurses. The Private School offers its students a wide variety of related therapy services, including OT, PT, SL, Vision Education Services, Assistive Technology services, Music Therapy, and parent counseling and training. These services are designed to support the education of Private School students and are provided, as needed, and usually provided in 60-minute intervals. (Ex. P-L)

Director testified that the 60-minute sessions are necessary for most therapies because students have a lot of areas they have to work on and address for each therapy. In contrast to students such as Student, 30-minute mandates for therapy, for example, may be appropriate for students with higher level cognitive ability and the executive functioning to recall instructions from a therapist. According to Director, in contrast, 60-minute sessions are appropriate for Student because the therapy is working on range of different skills, and she, and students like her, require significant preparatory activities. The 60-minute sessions permit the clinician to practice for the range of activities that need to be achieved. The Director also testified that given the level of the particular student’s impairment, the frequency of the sessions can be up to five days per week. The Director testified the frequency and length of the sessions allows the Student the repetition Student needs to learn the tasks and permits the tasks to become part of her motor memory. (Tr. 47).

Student needs a direct instructional model, which includes intensive regimen of related services provided in 60-minute sessions. Students, such as Student, are provided a push-in /pull-out model so that their therapeutic goals are addressed in multiple locations because doing so is critical because of their brain injuries, and so they can develop general skills in different settings. The pull in/push out model enables the students to have access throughout the school day to the activities of the classroom and to their classmates. Student attends a 6:1:1 class with peers who have similar needs and abilities. (Ex .P- L) Director testified that Student has a traumatic brain injury (TBI) and has a 1:1 paraprofessional in order to permit her to attend her educational program. Student receives OT (5 X per week – 60 minutes); PT (5 X per week – 60 minutes), SL Therapy (5 X per week – 60 minutes), Vision Education Services (2 X per week – 60 minutes), Individual Music Therapy (3 X per week – 60 minutes), and Group Music Therapy (1 X per week – 60 minutes) on a push in/pull out basis. (Ex. P-L; Tr. 41-45;48; P-J)

One of Student’s teachers has a Master’s Degree in Special Education. (Tr. 82) There are a total of 61 students in the Private School. (Tr. at 80). There are two school nurses, one at each facility. (Tr. 82) Director testified Student is in a 6:1:1 and that determination was made because Student is not an independent communicator, Student cannot express herself or communicate her needs independently. The ability to communicate is a threshold that the Private School looks for in placing a child in an 8:1:1 class and Student did not meet that threshold. (Tr. 85-86) Administrator further stated, the Student required significant amount of assistance and Student was not really familiar with assistive technology devices therefore, Student needed high levels of support in that area.

(Id. At 86) Typically, in Student’s classroom there is a teacher and the teacher’s assistant. There is also often an additional teacher or teacher’s assistant present. There are one or two students who have nurses. There are also the paraprofessionals as 3-4 students have paraprofessionals. Director testified Student benefitted greatly from Music therapy. The Student demonstrated increased shared attention and localization to sounds. The music therapy allowed the Student to discriminate where sounds were coming from allowed the Student to communicate as Student waited for people to give her choices of the music Student liked before responding. (Tr. 52)

Director also testified Student, who is legally blind and has cortical vision impairment, greatly benefitted from the vision education services. (Tr. 54-55) The Director testified the Student could use her vision more efficiently and process the images she was able to detect. Additionally, the vision education services built upon other compensatory senses, so that Student learned to use touch (tactile) and hearing (auditory) to gain information about something. (Tr. 54, 55, 56, 61) Student learned to communicate with her assistive technology. Director testified that since Student is confined to a wheelchair, is non-ambulatory and struggles with head control especially if Student does not have the support of her wheelchair head rest, the AT is particularly helpful in helping Student communicate. (Tr. 64) The Student was making progress in bench sitting and trying to support her head. (Tr. 65)

Director has found that Student has made considerable progress across all academic and related service domains during her attendance at Private School.

Private School IEP

Parents submitted a Recommended a 12 month Individualized Education Plan dated September 26, 2022, attended by the Parent and prepared by the Private School. Ex P-J.

CONCLUSIONS OF LAW

A. Burden of Proof

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. Educ. Law § 4404(1)(c) ^[6]; see also R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012). The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).

B. Free Appropriate Public Education The IDEA and the New York State Education Law provide that children with disabilities are entitled to a Free Appropriate Public Education (FAPE). 20 U.S.C. § 1400 (d)(1)(A); Educ. Law §§ 4402(2)(a), (b)(2). Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are:

(1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and

(2) to ensure that the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive Individualized Education Plan (IEP). 20 U.S.C. §§ 1401(9), (29); see also Bd. Of Educ. Of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-207 (1982).

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

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

“Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not." R.E., 694 F.3d at 190-191. Not all procedural errors, however, render an IEP defective and warrant relief. See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). If procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012). School districts are obligated to provide the special education services listed in a student’s IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d) (“FAPE means special education and related services that . . . [a]re provided in conformity with an individualized education program (IEP) that meets the requirements of §§ 300.320 through 300.324”). School district actions that constitute a “material failure of implementing the IEP” deny a FAPE. See A.P. v. Woodstock Bd. Of Educ., 370 Fed. Appx. 202, 205 (2d Cir. 2010) (citing Van Duyn ex. Rel. v. Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821 (9th Cir. 2007) (“A material failure occurs when the services provided to a disabled child fall significantly short of those required by the IEP”). C. Parents’ Private Placement Parents who think that their child is not receiving a FAPE may pay for private services and seek reimbursement from the school district for “’expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.'" M.H. v. New York City Dep't of Educ., 685 F.3d 217, 246 (2d Cir. 2012) (quoting, T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir.2009) (quoting Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 370-71, (1985)). In making a claim for reimbursement, "the burden shifts to the parents to demonstrate that the school in which they have chosen to enroll their child is appropriate." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007); M.H., 685 F.3d at 245. The parent has the burden of proving that the unilateral placement provided “educational instruction specifically designed to meet the unique needs” of the student. Gagliardo, 489 F.3d at 112. Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000).

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

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

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

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112 (quoting Frank G. v. Bd of Educ., 459 F.3d at 364-65). A parental placement is appropriate if it provides “educational instruction specifically designed to meet the unique needs” of the student. Gagliardo, 489 F.3d at 114-15.

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

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

ANALYSIS

District’s Failure to Provide A FAPE

The Student’s June 10, 2021 IEP mandated that the Student receive “specialized transportation” such as curb to curb bus transportation, a lift bus adult supervision paraprofessional and air conditioning and in terms of Student’s physical development the Student was diagnosed with spastic quadriplegic cerebral palsy, seizure disorder and PVL and Student “exhibits limited mobility” and requires “maximum support to assume and maintain a sitting position” [Student] has difficulty taking weight through her feet in supported standing. She often keeps hands in a fisted position though she will open them at times. She often maintains her head/neck rotated to the right side, She can look to the left but this is labored for her”. (Ex. B-4) The DOE is required to provide the Student with specialized transportation and this Student’s medical needs required the special transportation. Parent reached out to the DOE concerned that the Student was not being provided with the specialized transportation mandated on the Student’s IEP. The Parent stated the Student required a nurse on the bus and the DOE amended the IEP to reflect that Student needs a 1:1 nurse on the bus. However, the amendment did not occur until November 2021. The Parent, clearly concerned that the DOE was not providing the appropriate specialized transportation even tried to transport the Student on her own to the Public School. The Parent, through no fault of her own, was unable to take on this additional burden. The DOE would like to blame the Parent for not transporting her disabled child to school. However, it appears the Parent genuinely attempted to transport the Student to the Public School until the Parent’s vehicle broke down. The DOE attempts to relieve themselves of their responsibility of transporting the Student to the Public School by suggesting the DOE offered alternative means, such as a taxi service, to transport the Student to the Public School. However, a taxi service is no substitution for “specialized transportation” requiring a 1:1 nurse to accompany the Student to and from the Public School. The Doe then states it was the Parent’s fault for not submitting forms for the transportation. The DOE’s evidence demonstrates the DOE failed to provide and implement the specialized transportation that was required for the Student to attend school. (D-9-16). The DOE has the burden of proof regarding its offer of FAPE. The DOE’s witness, the Administrator, demonstrated through her testimony and the DOE’s evidence that the DOE failed to provide appropriate transportation for the Student for the 2021-2022 school year such that the Student was not able to access any education or related services until March 2022. As a result, the Student was denied the ability to attend public school since the time of the June 10, 2021 IEP until March 2022.

Additionally, the IEP found the Student to have very limited communication abilities, and found the Student communicates with her eyes/facial expressions, various cries and whining vocalizations . (Ex. D5-4) The IEP found the Student “continues to present with severely delayed communication skills. (Ex. D-5-3) Despite the Student’s delayed communication abilities, the IEP found the Student “did not need an assistive technology device or service to address his/her communication needs” (Ex. D-5-6). The Student was provided with an Assistive Technology device at the Private School particularly because the Student had severe communication deficits and the AT device and AT therapy allowed the Student to communicate on some levels and therefore, achieve progress in terms of communicating under Student’s unique circumstances. The failure to provide AT devices and AT therapy denied the Student a FAPE.

At the Due Process Hearing, the District conceded that the Student is a student with a disability who is entitled to Special Education services. In its closing brief, the DOE further conceded that it did not present a “Prong I case” for the 2022-2023 school year. See Endrew F., 137 S. Ct. at 2001 (school district is expected to “be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstance.”). For the reasons outlined above, I find, therefore, that the DOE failed to provide a FAPE to the Student for the 2021-

22 and 2022-23 SYs.

Parent’s Unilateral Placement at the Private School Given the District’s failure to meet its burden of proof to demonstrate a FAPE, the next issue to determine is whether the Parents’ unilateral placement of the Student at the Private School was appropriate. I find that the Parent met their burden of proof that the unilateral placement was appropriate.

Under the circumstances of this case, where the District elected not to submit any evaluative information or assessments of the Student as evidence with respect to the 2022-2023 school year, the Parent’s evidence prevails. The evidence submitted by Parent and discussed above, supports the appropriateness of the unilateral placement for the Student. Accordingly, to the extent that the Private School staff relied upon evaluation reports, observations or assessments of the Student to identify the Student's needs and develop the Student's educational program, or any allegation on the part of the District that the Parent's evidence of the appropriateness of the unilateral placement was not sufficiently comprehensive for the purposes of determining the Student's needs, the responsibility for such deficiency lies with the District and not the Parent. See 34 CFR 300.305(c); 8 NYCRR 200.4(b)(5)(iii); A.D. v. Bd. of Educ., 690 F. Supp. 2d 193, 208 (S.D.N.Y. 2010) (finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district); see also Application of the Dep't of Educ., Appeal No. 21-194; Application of the Dep't of Educ., Appeal No. 20-131; Application of the Dep't of Educ., Appeal No. 18-125; Application of a Student with a Disability, Appeal No. 180-049; Application of a Student with a Disability, Appeal No. 15-076; Application of a Student Suspected of Having a Disability, Appeal No. 15-038; 17 Application of a Student with a Disability, Appeal No. 14-033; Application of a Student with a Disability, Appeal No. 14-028; Application of a Student Suspected of Having a Disability, Appeal No. 14-003; Application of the Dep't of Educ., Appeal No. 13-198; Application of the Dep't of Educ., Appeal No. 13-072; Application of a Student with a Disability, Appeal No. 12-027. Moreover, because a "private placement need not provide . . . an IEP for the disabled student," the Private School had no duty to conduct the tests or evaluations typically relied upon by a district to develop an IEP. Frank G., 459 F.3d at 364.

Thus, the question of whether Private School was an appropriate unilateral placement is principally determined by analyzing whether the Private School provided "educational instruction specially designed to meet the unique needs of [the student]." Rowley, 458 U.S. at 188-89; see Gagliardo, 489 F.3d at 115; Frank G., 459 F.3d at 365. A review of the hearing record establishes that the evidence submitted by the Parents in this case was sufficient to identify the Student's unique individual needs and to satisfy the Parents' burden to establish the appropriateness of the Student's unilateral placement at Private School for the 2021-22 and 2022-23 SYs. The Private School offers a program for brain injured students, such as Student. Given the Student’s physical, cognitive and developmental needs, her needs are being met through a 6:1:1 class size with push in/pull out OT, PT and SL Therapy on a 5 day per week – 60 minute per session basis for each service. A 1:1 paraprofessional is provided, and fully warranted given the Student’s mobility and safety needs. The testimony of the Director and the documentation provided in the Private School IEP demonstrate that the Student is making progress. The use of assistive technology is directed to the Student’s non-verbal needs, and is allowing her to make progress. The music therapy and the vision education services have clearly helped the Student progress and make meaningful progress during the time the Student was enrolled at the Private School.

Equitable Considerations

The hearing record does not demonstrate that the Parent “acted with the requisite level of unreasonableness or misconduct that reimbursement should be denied on equitable grounds” (Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ., 550 F. Supp 2d 420, 437 (S.D.N.Y. 2008). There is no evidence that the Parent prevented the District from providing the Student with a FAPE for the 2021-2022 or 2022-23 school years. To the contrary, the hearing record establishes that the Parents cooperated with the CSE. Here, the Parent attended the CSE meeting held on June 10, 2022. Parent gave the DOE ten business days’ notice as required by 20 U.S.C. § 1412(a)(10)(C)(iii)(I) and 34 CFR 300.148(d)(1). (See Exs. D, G). The ten-day notices informed the CSE that absent an appropriate IEP and placement, the Parent would place Student at a Private School for the remainder of the 2021-22 school year and for the 2022-23 school year (Ex. P- D, G) and seek DOE funding for the placement. There is nothing in the record to indicate that the amount of tuition sought is unreasonable. I do not find Parent’s testimony was required to demonstrate the appropriateness of the unilateral placement as the evidence submitted clearly demonstrated the Private School was an appropriate placement during the time the Student was enrolled in the Private School from May 2022 until October 20, 2022. Based on the foregoing, the Parent has met the third prong of the Burlington/Carter Test, as a weighing of the equities supports an award of tuition funding and/or reimbursement to the Parent.

The hearing record establishes that the Parent incurred an obligation to pay tuition to the Private School in the aggregate amount of $24,148.53 for 2021-22 school year, and the pro-rated amount of tuition which reflects the Student’s enrollment from the start of the 2022-2023 school year until October 20, 2022 when Student was withdrawn from the Private School, (pro-rated amount of the full tuition $281,814.40 for the 2022-23 school year). The Supreme Court has indicated that “[c]ourts fashioning equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required”, and that “[t]otal reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable” (Carter, 510 U.S. at 16). Here, the Private School’s tuition is not unreasonable given the education and other services provided. See Mr. and Mrs. A. ex rel. D.A. v. New York City Dept. of Educ., 769 F. Supp. 2d 403, 429 (S.D.N.Y. 2011) (determining that the private school tuition was not unreasonable in light of the education and related services the school provided). Accordingly, the Parent is entitled to an order directing the DOE to fund their tuition obligation to the Private School for the 2021-22 and 2022-23 SYs.

OTHER CONTENTIONS

Other than the relief set out in my Order below, and my findings detailed in this section of “Other Considerations,” I find the Parties’ remaining contentions to be unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all of the Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDER

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

1. ORDERED, that the DOE failed to provide a FAPE to the Student for the 2021-2022; and 2022-2023 school years.

2. ORDERED, that the DOE shall fund the Student’s tuition to Private School for the 2021-22 school year (i.e., $24,148.53 as indicated in Ex. I); and

3. ORDERED, that the DOE shall fund the Student’s tuition to Private School for the 2022-23 school year (the full tuition $181.814.40 as indicated in Ex. C) which includes tuition, related services, and special transportation prorated up until October 20, 2022, when Student was disenrolled from Private School (i.e., the Private School shall receive only the portion of the tuition up until October 20, 2022).

SO ORDERED.

DATED: May 1, 2023

Mercedes Cesaratto (signed electronically)

Mercedes Cesaratto

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

PARENT DATE DESCRIPTION NUMBER OF

EXHIBIT PAGES

A. Due Process Complaint IH # 229656 2021- 2022 & 2022 - 2023 School Years 07/06/2022 7 pages

B. NYC DOE IEP [REDACTED] Enrollment 06/10/2021 15 pages

C. Contract 2022 - 2023 School Year Ten Day Notice 06/17/2022 6 pages

D. 2021- 2022 School Year Transportation Agreement 05/27/2022 2 pages

E. 2021 - 2022 School Year Transportation Agreement 06/16/2022 5 pages

F. 2022 - 2023 School Year Ten Day Notice 06/16/2022 5 pages

G. 2022- 2023 School Year 06/21/2022 2 pages

H. Determination Report [REDACTED] Enrollment 07/13/2022 1 page

I. Contract 2021-2022 School Year [REDACTED] IEP 05/31/2022 9 pages

J. 2022-2023 School Year 09/26/2022 61 pages

L. Affidavit of [REDACTED] 9/27/2022 4 pages

DOE’S EXHIBITS

EXHIBIT DATE NAME PAGES

1. Ten Day Notice 6/21/2022 2 pages DOE

2. Due Process Complaint 7/6/2022 7 pages DOE

3. Determination of Eligibility for Preschool Special Education Services 3/4/2021 3 pages DOE

4. Individualized Education Plan 6/10/2021 15 pages DOE

5. Individualized Education Plan – Amended 6/10/2021 16 pages DOE

6. – 2/22/21 Preschool Student Evaluation 2/17/21 37 pages DOE

7. DOE approval and Authorization to Receive Preschool Special Education Program/Services N/A 1 page DOE

8. Final Notice of Recommendation 6/10/2021 1 page DOE

9. Email from [REDACTED]to [REDACTED] 9/27/2021 1 page DOE

10. Email from [REDACTED] to[REDACTED] 10/4/2021 1 page DOE

11. Email from [REDACTED]to [REDACTED] 10/4/2021 1 page DOE

12. Email from [REDACTED] to [REDACTED] 11/12/2021 1 page DOE

13. Emails from [REDACTED] 1/10/2022 1 page DOE

14. – 1/18/2022 Emails between [REDACTED] and [REDACTED] 1/10/2022 1 page DOE

15. Email from [REDACTED to [REDACTED] 2/15/2022 1 page DOE

16. Affidavit of [REDACTED] 9/23/2022 5 pages DOE

IHO EXHIBITS

# Document Date Pages

IHO-1 DOE email to IHO 1/10/2023

1/23/2023

IHO-2 Parent’s Closing Brief March 10, 16

2023

IHO-3 District’s Closing Brief March 16, 18

2023

Footnotes

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

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

[3] Parent did not request nor mention a request for an independent neuropsychological during the hearing nor in Parent’s closing brief. Therefore, it was not addressed by this IHO.

[4] Despite the Parent not appearing at the Merits hearing, which resulted in my decision not to admit her affidavit into evidence, I found for the following reasons that her testimony was not required for my findings, given the Parent’s remaining proof.

[5] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.

[60] minutes a session, individual PT to the Student 5 times per week or 60-minute sessions; Individual Visual Physical Education Services two times per week for 60 minute sessions; Individual Assistive Technology Services of 1 time per week for 60 minutes per session; Music Therapy for 3 times per week for 60 minute sessions; Parent Counseling and Training for 1 a month for 60 minutes. The total cost of tuition for 2021-2022 was $24, 148.53. When the DOE failed to develop an IEP for Student for the 2022-2023 school year, Parent sent the DOE a ten-day note letter dated June 21, 2022. (Ex. P-G) On June 17, activities of daily living and to have access to and benefit from the educational program.

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