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Special Education Law
DECISIONParent PrevailedIHO Case No. 230295

New York City Department of Education, Impartial Hearing Decision

December 11, 2022·Jean Marie Brescia·New York City Department of Education

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

CASE NUMBER: 230295

FINDINGS OF FACT AND DECISION

Case Number: 230295

Student’s Name: REDACTED

School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: August 29, 2022

Date(s) of Hearing: September 30, 2022

October 18, 2022

November 16, 2022

Actual Record Closed Date: November 28, 2022

Date of Decision: December 11, 2022

Date of Distribution if Different than Decision Date: N/A

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON September 30, 2022

For the Student:

REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON October 18, 2022

For the Student:

REDACTED, Esq.

REDACTED, Law Clerk, Observing

REDACTED, Parent

REDACTED, Director of Special Education, REDACTED

For the Department of Education:

REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON November 16, 2022

For the Student:

REDACTED, Esq.

REDACTED, Law Clerk, Observing

For the Department of Education:

REDACTED, Esq.

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about August 29, 2022. Ex. A.[1] On August 31, 2022, I was appointed by the New York City Department of Education to hear this matter. Parent alleges that the Department failed to offer a free appropriate public education to REDACTED and seeks reimbursement for tuition and the costs of related services, nursing services and a paraprofessional for REDACTED at the REDACTED for the REDACTED (“REDACTED”) for the 2022-2023 school year. Ex. A at 1, 5. REDACTED’s parents also seek funding for specialized transportation with nursing/paraprofessional support and an independent neuropsychological evaluation for REDACTED. Ex. A at 5.

I conducted a prehearing conference on September 30, 2022. Counsel for the Parent appeared; no one appeared on behalf of the Department. Tr. 2-3. Counsel clarified the relief requested, raised the issue of pendency, and represented that the Department had scheduled an IEP meeting for REDACTED. Tr. 4-6. Parent’s counsel made an application that the Department be held in default; the application was denied. Tr. 6-7. The hearing was scheduled for October 18.

On October 18, the Department waived its opening statement, did not present the testimony of witnesses nor offer documents in evidence, and rested its case. Tr. 18-19; see also Tr. 31. REDACTED’s mother and REDACTED’s Director of Special Education testified. Parent’s exhibits A through L were admitted in evidence. The Department declined the opportunity to present a rebuttal case. Tr. 101. Counsel for the Department and for REDACTED’s mother presented closing statements on the record.

After hearing closing statements, I requested one-page letter briefs from counsel on their respective computations, as relevant to this case, of the timeliness rules for a school district to evaluate a student referred for an evaluation to determine eligibility for special education and services and, if found eligible, for provision of appropriate special education and services to the student. Tr. 114-115; see 8 N.Y.C.R.R. § 200.4(a)-(d).

Counsel for both parties filed their letter briefs; as a result of questions arising from those letter briefs, I scheduled counsel to appear on November 16. The letter briefs were admitted in evidence as Parent’s Exhibit M and Department Exhibit 1.[2] Counsel presented oral arguments in response to my questions.

The parties requested an extension of the compliance date, and a written Order of Extension was issued on November 1, 2022. The reasons for granting the extension are set forth in the Order.

The record was closed on November 28, 2022, upon the Hearing Officer’s receipt and review of the transcript of the final day of the hearing.

JURISDICTION

The due process hearing was held, and a decision in this matter is now 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.

REDACTED’s mother consented to the hearing being conducted by videoconference and to transmission of this decision by email. Tr. 32-33.

ISSUES

Parent requests funding for tuition and related services costs at REDACTED, reimbursement for monies paid and direct payment for tuition due and owing, and for costs of transportation and an independent neuropsychological evaluation. At the hearing, the Department did not defend its IEP or proposed placement. The issues to be resolved are:

  • • When should the Department have completed its evaluation of REDACTED, considered his eligibility for special education and services, developed an IEP for him, and offered him a special education program and placement?
  • • Was REDACTED an appropriate unilateral parental placement for REDACTED for the 2022-2023 school year?
  • • What does the record reveal about REDACTED’s special educational needs?
  • • What does the record reveal about REDACTED’s program for REDACTED?
  • • Does the “totality of the circumstances” demonstrate that REDACTED’s program for REDACTED is reasonably calculated to address his special education needs?
  • • Does the balance of the equities favor REDACTED’s parents?
  • • Does the record support school district funding for transportation and an independent neuropsychological evaluation for REDACTED?

FINDINGS OF FACT

  • • REDACTED is a REDACTED year-old young man.[3]
  • • REDACTED has been diagnosed with REDACTED, REDACTED, REDACTED, and REDACTED. Tr. 57; Exs. B at 1, C at 1, H at 1,[4] I at ⁋ 2.
  • • REDACTED is nonverbal and is not independently ambulatory, needing continuous adult support for safety while walking and standing as well as for transferring to and from his wheelchair. He also experiences significant difficulties with executive functioning, fine motor skills, activities of daily living, attention, auditory sensitivities (resulting in screaming), overstimulation by other environmental factors (resulting in unsafe jumping and rocking), and engaging in purposeful movement. Tr. 63, 82; Ex. B at 1, 3; Ex. C at 2.
  • • REDACTED requires adult assistance in all areas of daily living activities. Exs. C at 3; I at ⁋ 3; J at ⁋ 10.
  • • REDACTED lived in REDACTED with his family. He attended the REDACTED (“REDACTED”) in REDACTED from 2012 until March 2022. Tr. 85, 88-89; Exs. B at 1, C at 1.
  • • The REDACTED is a specialized, therapy-intensive school for children with disabilities; the School provided REDACTED with a small class setting and the support of a 1:1 paraprofessional and twice-weekly 1:1 intensive physiotherapy, daily 1:1 occupational therapy (prior to COVID closures), and vision therapy; and REDACTED made progress at the School. Tr. 88-93; Exs. B at 1, H at 2, I at ⁋ 2; see also Exs. K, L.
  • • His progress, over the years he attended REDACTED, were in the areas of occupational therapy, specifically sensory modulation, hand function and fine motor skills (including grasp and accessing switches on his AAC devices and toys). Exs. C at 2-3, K, L.
  • • In March 2022, REDACTED moved with his family from REDACTED to REDACTED County and resided with REDACTED’s mother’s parents, who live in REDACTED. Tr. 82-83.
  • • REDACTED continued to participate in online instruction provided by the REDACTED.[5] Tr. 85.
  • • In early April 2022, REDACTED’s parents made the decision not to return to REDACTED. Tr. 96.
  • • REDACTED’s mother learned about REDACTED from REDACTED’s neurologist and social workers at REDACTED. Tr. 96-97.
  • • On April 8, 2022, REDACTED personnel conducted some preliminary evaluations of REDACTED, including a speech-language and feeding assessment, occupational and physical therapy assessments, and an assistive technology assessment, as well as assessments with respect to social, vocational and life skills. At the time, REDACTED and his mother were living in REDACTED County. Tr. 49-51, 74; Ex. H at 2-4, 15-19, 22, 25.
  • • REDACTED and his family moved to REDACTED in June 2022 because, according to REDACTED’s mother, a property that REDACTED’s mother owned, and had rented out, became available for REDACTED and his family (REDACTED’s parents and his three siblings along with two “helpers” to assist with REDACTED’s care) to move into. Tr. 83; Ex. I at ⁋ 6.
  • • On June 17, 2022, REDACTED’s mother went to the Department’s Family Welcome Center in REDACTED, on REDACTED Street. Tr. 84.
  • • She went to the fourth floor CSE offices to register REDACTED.[6] Tr. 99-100.
  • • On June 17, REDACTED’s mother provided documents to CSE personnel, and she filled out all the forms she was asked to complete. Tr. 84.
  • • CSE personnel informed REDACTED’s mother that she was “all set,” that the Department had all the required documentation, that REDACTED should be “in the system within a few days,” and that she would receive information, specifically an “OSIS number,” within a few days. Tr. 84; Ex. I at ⁋⁋ 7, 9.
  • • REDACTED’s mother followed up in with CSE personnel but did not receive a response. Ex. I at ⁋ 8. She did not specify how or when she did so.
  • • In August, REDACTED’s mother received a letter from the CSE stating that the Department did not have the necessary paperwork to register REDACTED. Ex. I at ⁋ 9.
  • • However, on August 15, REDACTED’s mother brought REDACTED to the CSE 9 offices for evaluations to be conducted by DOE personnel. Tr. 87; Ex. I at ⁋ 12.[7] The CSE social worker who had arranged the evaluation appointment with REDACTED’s mother was absent that day, and no one at the CSE knew “what [REDACTED and his mother] were doing there and why [they] came.” Tr. 86.
  • • Another CSE social worker and a CSE psychologist assisted them. REDACTED’s mother met with the social worker and signed forms provided by the social worker; a CSE evaluator tried to engage REDACTED in an evaluation but had difficulties; REDACTED’s mother answered the evaluator’s questions. Tr. 87-88.
  • • The social worker made arrangements with REDACTED’s mother for a follow up telephone call. Tr. 88.
  • • REDACTED’s mother, through counsel, submitted a ten-day notice letter to the Department on or about August 25, 2022, informing the Department of her intention to place REDACTED in REDACTED and seek funding from the Department. Ex. D.
  • • REDACTED is a nonpublic, not-for-profit special education school enrolling children with “brain injuries or brain-based disabilities;” many of the students are nonverbal and nonambulatory. Ex. J at ⁋ 5.
  • • REDACTED provides an extended school day to all students. The school day starts at 8:30 AM and concludes at 5:00 PM. Ex. J at ⁋ 5.
  • • On September 9, 2022, REDACTED’s mother signed an enrollment contract for REDACTED’s attendance at REDACTED for the period from September 19, 2022 through June 23, 2023. Ex. E. As per the terms of the enrollment contract:
  • • The “Pro Rated Base Tuition” for REDACTED is $137,774.65, which includes the costs of academic programming, a 1:1 paraprofessional and nursing services and which does not include the costs of related services.
  • • The “Supplemental Tuition” for REDACTED includes the costs of “related services programming calculated at a rate of $112 per hour for individual treatment and $56 per hour for therapy in group settings.”
  • • REDACTED’s “related services programming,” for which REDACTED is charging separately from tuition charges, includes: individual occupational therapy (five 60-minute sessions per week); individual physical therapy (five 60-minute sessions per week); individual speech and language pathology (four 60-minute sessions per week); group speech and language pathology (one 60-minute session per week); individual vision education services (three 60-minute sessions per week); individual assistive technology services (one 60-minute session per week); individual music therapy (two 60-minute sessions per week); group music therapy (one 60-minute session per week); and parent counseling and training (one time per month); for a total cost, as per the terms of the contract, of $82,969.60.
  • • The contract obligates REDACTED’s mother to pay the above tuition and related services programming amounts.
  • • REDACTED’s mother also entered into a transportation contract with a transportation company to provide transportation for Valentine between his home and REDACTED. REDACTED’s mother is obligated to pay for the services rendered by the transportation company should she not prevail in this proceeding. Ex. G.
  • • REDACTED, a New York State certified special education teacher, is the director of special education at REDACTED. Tr. 47-48; Ex. J at ⁋⁋ 1, 3.
  • • There are 61 students enrolled at REDACTED. Tr. 54.
  • • REDACTED provides the related services of speech, occupational and physical therapies to its students; some students require vision services, and the school provides this related service. Tr. 58.
  • • There are six students (including REDACTED) in REDACTED’s class. Tr. 76.
  • • REDACTED is supported by a 1:1 paraprofessional throughout the school day to assist with mobility, safety, and positional adjustments as well as all aspects of ADL skills. Ex. H at 8-9, 15, 17; Ex. J at ⁋ 13.
  • • REDACTED receives, as do the other students in his class, 30 minutes per day of 1:1 direct instruction from his classroom teacher; the remainder of the classroom instructional time is spent in small group instruction. Tr. 59.
  • • The 30 minutes per day of 1:1 direct instruction targets REDACTED’s “specific goals,” utilizes “differentiation of the curriculum and the materials,” and “incorporate[es] his interests” to individualize the teaching and to motivate REDACTED. Tr. 60-61, 63.
  • • Small group instruction is provided for approximately and on average for three hours per day, this includes time for some “push-in” related services during which the student is participating in academic work and “incorporating in those therapeutic skills as well” in the classroom. Tr. 64; see also Tr. 79.
  • • Related services are provided both as push-in to the classroom or as pull-out sessions. Tr. 59. The school’s goal is to provide 50 percent of related services as push-in and 50 percent as pull-out. Tr. 65; Ex. J at ⁋ 9.
  • • Push-in related services “enables greater access [for REDACTED] to academic curriculum throughout the day” and “increases the value of [REDACTED’s] therapy because it ensures that the skill is being carried over and meaningfully,” for example, using an AAC device in the classroom to communicate with people around him rather than in a room with only a speech therapist. Tr. 65-66; see also Exs. H at 15-16, J at ⁋ 9.
  • • At REDACTED, REDACTED has access to the school nurse “as needed.” Ex J at ⁋ 13.
  • • REDACTED personnel develop an “REDACTED IEP” for each student. Tr. 67; Ex. H (REDACTED’s REDACTED IEP[8]); Ex. J at ⁋ 8.
  • • The IEP development process involves “intake evaluations” of the student and meetings to discuss those evaluations and formulate recommendations for the student. Tr. 67-68. The document is finalized after the student is enrolled in the school, and school staff have had opportunities to observe the student with his classmates and teachers. Tr. 69-70.
  • • The REDACTED IEP for REDACTED sets forth the following information concerning present levels of performance:
  • • REDACTED is able to follow one-step instructions with maximum cuing. He may need as many as 6 to 9 cues and 1 to 2 redirections to follow the direction; since attending REDACTED, his need for cues has decreased to 5 to 6 with fewer redirections during daily academic time.
  • • Sometimes, REDACTED can answer “wh” questions about a story that is read to him or about a daily activity.
  • • REDACTED enjoys sensory-related activities during math time.
  • • REDACTED looks at the person speaking to him, takes turns when playing games, and requires maximum adult support to communicate with peers.
  • • REDACTED utilized an eye-gaze device (with a “field” of two symbols, such as yes/no; he uses a switch to respond to yes/no questions) as his “primary method of communication,” and recognized his family, responded to his name, and followed simple directions regarding “more/yes, stop/go, and heads up.”
  • • REDACTED “typically” used his eyes, facial expression, and body gestures to respond to different “sensory experiences.
  • • REDACTED needed assistance from a “communication partner” in order to communicate successfully by, for example, narrowing responsive choices for him or interpreting gestures and/or body language.
  • • REDACTED needed adult assistance for mobility, transfers to and from his wheelchair, safety awareness, hygiene, and activities of daily living.
  • • REDACTED, due to his cortical vision impairment, demonstrated difficulties in “using his vision functionally” and needed specific accommodations and/or modifications of written materials.
  • • REDACTED did not demonstrate “an understanding of letters” or numbers. Ex. H at 24.
  • • REDACTED “has been able to attend for up to a minute but most commonly he attends long enough to finish [a] 1 step direction (approx. 15 seconds) before needing redirection when doing a structured activity.” Ex. H at 24.
  • • Ex. H at 2-28.
  • • The REDACTED IEP sets forth “management needs” for REDACTED, including, among others, a 1:1 paraprofessional, processing time, repetition of verbal and physical cues, 1:1 instruction;, a highly structured classroom, AAC devices, a quiet environment, rest breaks, and adapted equipment. Ex. H at 29-30.
  • • The REDACTED IEP also states that REDACTED needs “consistent intervention” to teach and encourage REDACTED to utilize AAC devices consistently and throughout the day in order to “participate in activities, and communicate wants and needs to further facilitate his expressive language skills, vocabulary skills, and participation in daily activities.” Ex. H at 23.
  • • The REDACTED IEP also specified nursing interventions for REDACTED. Ex. H at 30-34.
  • • The REDACTED IEP includes a section labelled “Measurable Annual Goals.” There are goals listed in the areas of emergent literacy, beginning math concepts, greeting others, using the AAC device to express emotions, eye-to-object contact, visual tracking, receptive and expressive language skills, using his AAC devices, pragmatic language, safe feeding strategies, physical therapy (transferring from wheelchair, walking, basic ADL skills), occupational therapy (bilateral hand coordination, pre-handwriting skills, endurance to sit upright), and music therapy. Ex. H at 35-52.
  • • The REDACTED IEP also includes transition activities for REDACTED in the areas of academics and ADL and community skills. Ex. H at 54-55.
  • • The REDACTED IEP includes the following recommendations (see Ex. H at 9, 15, 20, 22, 43, 45, 47-48, 49, 52, 59-60):
  • • Five 60-minute sessions per week of individual physical therapy;
  • • Five 60-minute sessions per week of individual occupational therapy;
  • • Four 60-minute sessions per week of individual speech therapy and one 60-minute session per week of group speech therapy;
  • • One 60-minute session per week of AT services;
  • • Three 60-minute sessions per week of individual vision education services; and
  • • One 60-minute session per month of parent counseling and training.
  • • REDACTED provides REDACTED with the above-listed related services. Ex. J at ⁋⁋ 12, 13.
  • • REDACTED provides REDACTED with 60-minute sessions of related services because REDACTED personnel have concluded that he has many skills that need to be worked on in each area, Tr. 70; Ex. H at 8-9, 14-15. For example, in speech, REDACTED needs to address goals in the areas of receptive and expressive language, oral motor skills, and using different communication devices. Tr. 71. In addition, REDACTED needs extended time to process and respond to directions; so each task takes extended time. Tr. 72-73; Ex. J at ⁋ 9.
  • • During related services sessions, REDACTED needs “constant” support from the therapist due to his “really limited attention span” and need for redirection, need for physical cuing from the therapist in order to follow directions, hand-over-hand assistance, and supervision to remain safe. Tr. 75-76; Ex. H at 8-9, 14.
  • • REDACTED’s PT sessions include mat-mobility training; transfers; sitting, standing and walking activities to improve his flexibility, balance, posture, tolerance of activities, coordination, gross motor strength, safety and body awareness; and sensory regulating activities. Ex. H at 8-9. REDACTED needs a 15 minute period at the beginning of each PT session for preparatory activities such as stretching, activating his core musculature and putting on his ankle foot orthoses. Ex. H at 8-9.
  • • As of the time of the hearing, and since his enrollment at REDACTED, REDACTED has been responding to directions from staff; made improvements in attention; is using an AAC device (a single-switch BIGmack device and an iPad with “yes” and “no” buttons on a split screen), with prompting from his teachers, to communicate to greet his teachers and respond to requests to make choices; and participating in class programming. Tr. 42-43, 46-47; Ex H at 25.

CONCLUSIONS OF LAW

A board of education may be required to pay for education services obtained for a child by the child's 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. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). The fact that the school or the educational and related services selected by the parents are not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education 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 their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982).

The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district 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 Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; 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). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v).

In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition or services reimbursement for a unilateral placement, or services selected by the parent, has the burden of proof regarding the appropriateness of such placement, programming or services. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.

When was REDACTED entitled to a FAPE?

In this case, the Department did not present testimony or documentary evidence with respect to its provision of FAPE to REDACTED for the 2022-2023 school year or to rebut the testimony of REDACTED’s mother or her witness. As a result, the Department did not carry its burden of proof and cannot prevail on the first “prong” of the Burlington/Carter test.

However, as a prerequisite to my authority to order relief, if any, in this case, I address the issue of when the Department should have completed its evaluation of REDACTED, considered his eligibility for special education and services, developed an IEP for him, and offered him a special education program and placement. I do this because a hearing officer does not have the authority to adjudicate a reimbursement claim until such time as a school district becomes, or should have become, responsible for offering a FAPE to a student.

As in the instant case, parents may refer their child to a school district for an “initial” evaluation to determine their child’s eligibility for special education and services. 8 N.Y.C. R.R. § 200.4(a)(1)(i). Whatever happened at the Department’s Family Welcome Center on June 17, REDACTED’s mother sought to register REDACTED with the Department—and she was registering him for special education, requiring the Department to “initiate a referral and promptly request parental consent to evaluate the student....” 8 N.Y.C. R.R. § 200.4(a). The Department had ten “school days” to request REDACTED’s mother consent to conduct an evaluation of REDACTED. 8 N.Y.C. R.R. § 200.4(a)(2)(iv)(a). There is no evidence, despite my requesting clarification on this issue, of the date of REDACTED’s mother’s consent to evaluate REDACTED. It is undisputed that she did formally consent at some point because the Department did commence an evaluation.

In any event, Section 200.1 of the Commissioner’s Regulations provides very specific definitions with respect to “days”:

(n) Days means calendar days unless otherwise indicated as school day or business day.

(1) School day means any day, including a partial day, that students are in attendance at school for instructional purposes. The term school day has the same meaning for all students in school including students with disabilities and students without disabilities, except that, during the months of July and August, school day means every day except Saturday, Sunday and legal holidays.

(2) Business day means Monday through Friday, except for Federal and State holidays (unless holidays are specifically included in the designation of business day).

Ten “school days” from June 17 was July 7 (last day of school was June 27; count resumes on July 1, skipping July 4).[9] The Department was then required to conduct the evaluation of REDACTED within 60 days of receiving parental consent. See 8 N.Y.C. R.R. § 200.4(b)(1). It appears that Department personnel attempted to conduct an evaluation of REDACTED on August 15, a date within the 60-day timeframe for conducting an evaluation. In addition, the Department was required, within 60 school days from the date of consent, to determine REDACTED’s eligibility for special education, develop an IEP and “arrange for the appropriate special education programs and services” for REDACTED. 8 N.Y.C. R.R. § 200.4(d) & (e). Sixty school days from July 7, 2022 was October 12, 2022. As a result, the Department was not responsible for offering a FAPE to REDACTED until October 12, 2022.

Counsel for both parties present inaccurate and/or incomplete computations of when the Department should have provided an IEP and offered a special education placement to REDACTED. See Ex. M at 1-2; Ex. 1. Furthermore, the Department argues in its post-hearing submission, “upon information and belief,” that “the DOE received consent to evaluate the student” on August 15. Ex. 1 at 1. I struck paragraphs 1 through 7 of the Department’s post-hearing submission for evidentiary purposes because the Department did not present, at the hearing, any testimony or evidence with respect to the propositions set forth in these paragraphs. See Tr. 132. However, I may, and will, consider this material (paragraphs 1 through 7) as legal argument. August 15 is well beyond the ten school day time period for seeking consent from REDACTED’s mother; I applied the ten school day rule, as set forth in the Commissioner’s Regulations, in this decision. The Department also argues, “upon information and belief,” that “DOE was unable to contact the parent for some time due to incomplete information in the parent’s request, however it was made.” Ex. 1 at 1. Again, this is argument is unsupported by any evidence. It is also an argument rebutted by REDACTED’s mother’s credible testimony that she provided all requested information to Department personnel and completed all forms requested by Department personnel during her visit to the CSE on June 17.

The Department did not avail itself of its opportunities to offer evidence in this proceeding, and its unsupported arguments should not be given credence. Furthermore, to give credence to such arguments would upend the IDEA’s comprehensive procedural framework established to ensure that students suspected of having disabilities are evaluated and, if eligible, are provided with a FAPE in a timely manner. See Forest Grove School District v. T.A., 557 U.S. 230 (2009); 20 U.S.C §§ 1400 et seq.

Parent’s arguments with respect to the Department’s alleged failures to develop a “comparable services plan” for REDACTED or to have services in place for REDACTED as of the July 1 start of the 12-month school year (see Tr. 110-111; Ex. M at 2-3) are inapposite because, as referenced above, this case involves an “initial” referral for special education and services under the IDEA.

Is REDACTED an appropriate placement for REDACTED?

REDACTED’s parents bear the burden of proof concerning the appropriateness of REDACTED’s program for REDACTED. See, e.g., Frank G. v. Bd. of Educ. of the Hyde Park Cent. Sch. Dist., 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S.Ct. 169 (2007). To meet this burden, REDACTED’s parents must show that the educational services provided by REDACTED addressed REDACTED’s identified special education needs. See C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 82 (2d Cir. 2014); C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free Sch. Dist., 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. 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.”

Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 831 F. App’x 29, 78 IDELR 2 (2d Cir. 2020) (Summary Order).

Furthermore, as the Second Circuit held in R.E.: “parents may provide evidence that the child made actual progress at their chosen private placement to support the adequacy of that placement.” 694 F.3d at 187 n.3.

The preponderance of the evidence establishes that REDACTED’s program provided REDACTED with an educational program in which his complex constellation of identified and significant special education needs was addressed. In particular, the record is clear that REDACTED needed the individualized instruction and programming, support of a full-time 1:1 paraprofessional for mobility, safety and ADLs, and the extensive and intensive related services that REDACTED school personnel provided to him. As the REDACTED documents and Ms. REDACTED’s testimony explained in detail, REDACTED needs 60-minute sessions of related services, with those services provided on both push-in and pull-out bases, and REDACTED provides such related services. REDACTED also needs support for, and teaching with respect to, use of assistive technology, and requires vision therapy. REDACTED provides REDACTED with these supports and services. See paragraphs 30 through 51, above. In addition, at REDACTED, music therapy is an appropriate service for REDACTED, and, as a related service that is a component of REDACTED’s integrated program for REDACTED, is reimbursable. See, e.g., Application of a Student with a Disability, Appeal No. 22-056 at pp. 14-15.

REDACTED has made progress, in light of his unique set of challenges and circumstances, during the brief period of attendance at REDACTED as of the time of the hearing. See paragraph 52 above. The evidence demonstrates that REDACTED provides him with an appropriate special education program. See, e.g., T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 878 (2d Cir. 2016) (unilateral program appropriate when it meets child’s needs and child makes progress); F.B. v. New York City Dep’t of Educ., 132 F. Supp. 3d 522, 555-56 (S.D.N.Y. 2015) (unilateral program appropriate when it provided instruction and related services individualized to child’s needs and which resulted in progress); see also, e.g., Application of a Student with a Disability, Appeal No. 22-002 at pp. 16-19 (prong II burden met when testimony of school witness describes how school’s program addresses student’s individual needs); Application of a Student with a Disability, Appeal No. 21-063 at pp. 14-16 (same); Application of a Student with a Disability, Appeal No. 21-056 at pp. 18-22 (same).

The Department argues that REDACTED’s mother did not meet her “prong II” burden because she did not offer in evidence REDACTED’s REDACTED class schedule or the credentials of REDACTED’s teachers or related services providers. While I would have preferred REDACTED’s schedule to have been offered in evidence because seeing the schedule would have eased my visualization of REDACTED’s daily programming, Ms. REDACTED’s testimony and the REDACTED documents were sufficient to describe that programming. See paragraphs 30-51, above; Exs. H, J. In addition, the record is sufficient to indicate that the REDACTED providers were appropriately qualified, as demonstrated by their credentials (where indicated) and the detail of their preliminary assessments of REDACTED. See paragraph 41, above; Ex. H passim and p. 61. See Application of a Student with a Disability, Appeal No. 22-002 at pp. 18-19. While it would have been helpful to me to have Ms. REDACTED testify as to the providers and their respective licenses and/or certifications and experience, my preference is not the proper evidentiary standard to apply here.

Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that REDACTED’s educational and related services programming is appropriate for REDACTED. As a result, REDACTED’s parents prevail with respect to the second Burlington/Carter criterion.

Does the balance of the equities favor REDACTED’s parents?

With respect to the third Burlington criterion, whether equitable considerations support REDACTED’s parents’ claims, the evidence establishes that REDACTED’s mother cooperated with the Department by showing up to register REDACTED, providing information to the CSE, bringing REDACTED to the CSE’s evaluation, assisting the CSE’s evaluator in conducting the evaluation, and providing the requisite statutory notice. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district).

The Department argues that REDACTED’s mother never intended to place REDACTED in a Department school and “only participated in the [Department’s] IEP process so minimally as to have standing to bring this proceeding.” Tr. 107. Even if this record were to support a finding that REDACTED’s mother had no intention of placing REDACTED in a Department of Education program, such a finding would not be grounds for denying the claim for tuition reimbursement. See C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014); Application of a Student with a Disability, Appeal No. 22-050 at p. 30; Application of a Student with a Disability, Appeal No. 21-056 at p. 24.

As to reimbursement for specialized transportation for REDACTED: (a) there can be no dispute that REDACTED needs specialized transportation to and from school; (b) given REDACTED’s physical challenges, specialized transportation to enable him to access an educational program is costly; and (c) the evidence consists of a transportation contract that obligates REDACTED’s parent to pay for transportation expenses. As per a number of SRO decisions, these factors constitute sufficient evidence to warrant public funding for transportation where the school district has failed to offer or provide specialized transportation to a student. See, e.g., Application of a Student with a Disability, Appeal No. 22-056 at pp. 12-13; Application of a Student with a Disability, Appeal No. 22-002 at pp. 20-21;

Furthermore, although REDACTED’s parent seeks direct payment to REDACTED and to the transportation company, she has not demonstrated her inability to pay the costs of REDACTED’s tuition and related services and of transportation. As the federal courts have made clear, such direct payment is appropriate only when (a) equitable considerations favor an award of tuition and/or services costs, and (b) the student’s parents, though legally obligated to make payments for tuition and/or services costs, have not made such payments because they do not have the financial ability to do so. Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998); Mr. and Mrs. A. v. New York City Department of Education, 769 F. Supp. 2d 403, 428-429 (S.D.N.Y. 2011). While REDACTED’s parent has demonstrated that she has an obligation to pay tuition, services and transportation costs, she has not demonstrated her lack of available financial resources. As a result, reimbursement for tuition, services and transportation expenses “upon proof of payment for services delivered is the appropriate remedy.” Application of a Student with a Disability, Appeal No. 22-050.

Equitable considerations thus favor the award of reimbursement relief to REDACTED’s parents. As a result, REDACTED’s parents prevail with respect to the third Burlington/Carter criterion.

Parent did not adduce evidence with respect to her request for an independent neuropsychological evaluation. See Ex. A at 5. As a result, I deem this claim abandoned and dismissed.

ORDER

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

The Department of Education shall reimburse REDACTED’s mother for the costs of tuition and related services at REDACTED and the costs of specialized transportation for REDACTED between home and REDACTED, for the time period from October 12, 2022 through the end of the 2022-2023 school year.

SO ORDERED.

DATED: December 11, 2022

Jean Marie Brescia, Esq.

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.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT’S EXHIBITS

PARENT EXHIBIT

DATE

DESCRIPTION

NUMBER OF

PAGES

A 08/29/2022 Due Process Complaint IH # 230295 2022- 2023 School Year 7

B 05/2022 Physiotherapy Assessment Report 5

C 06/2022 Occupational Therapy Assessment 3

D 08/25/2022 Ten Day Notice 2022- 2023 School Year 2

E 09/09/2022 REDACTED Enrollment Contract 2022-2023 School Year 7

F 09/14/2022 Determination Report 1

G 09/19/2022 Transportation Agreement 2022-2023 School Year 5

H 10/06/2022 REDACTED IEP 2022-2023 School Year 61

I 10/11/2022 Affidavit of REDACTED 3

J 10/11/2022 Affidavit of REDACTED 5

K 2022-2022 REDACTED IEP 7

L 2022-2022 REDACTED IEP 5

M 10/31/2022 Parent’s Closing Statement and Reply 4 DEPARTMENT’S EXHIBIT 1 11/1/2022 Supplemental Closing Statement 2 pages

Footnotes

[1] Exhibits shall be referred to as follows: Parents’ Exhibits are designated by a letter; Department’s Exhibits are designated by a number; and Impartial Hearing Officer’s Exhibits are designated as “IHO.” Paragraph 11 of Parent’s Affidavit (Ex. J) was stricken at request of Parent and without objection by the Department. Tr. 86.

[2] Paragraphs 1 through 7 appearing in Department Exhibit 1 were stricken for evidentiary purposes for the reasons set forth on the record. Tr. 131-132.

[3] REDACTED’s eligibility for special education and related services has not been at issue in this proceeding; furthermore, the Department convened an eligibility and IEP meeting for REDACTED on October 7, 2022, and determined that REDACTED was a student with a disability protected by the IDEA. See Tr. 123-125.

[4] The REDACTED document lists each of these medical diagnoses; however, no medical documentation was offered in evidence and no medical professionals testified. Parent was represented by counsel; and while a hearing officer may “ask questions of counsel or witnesses for the purpose of clarification or completeness of the record,” my duty to maintain my impartiality prohibits me from turning my duty to develop the record into advocacy on behalf of one of the parties. See, e.g., 8 N.Y.C.R.R. §§ 200.1(x), 200.5(j)(3)(vii); see also New York State Manual for Administrative Law Judges and Hearing Officers (2002) at pp. 28-29, 35. I determined that, in the circumstances of this case, including REDACTED’s parent’s representation by counsel, my requesting evidence such as medical documentation and other specific assessments or evaluative information, would cause me to be acting as an advocate for one party rather than as an impartial hearing officer.

[5] There are also references in the exhibits that REDACTED, as some point in time, received services at or from REDACTED in REDACTED County. Evidence was not presented as to such services.

[6] At some point, REDACTED’s mother went to the tenth floor to register two of REDACTED’s siblings. Tr. 99.

[7] Paragraph 11 of REDACTED’s mother’s affidavit was stricken as irrelevant (see footnote 1, above).

[8] The REDACTED document states that REDACTED’s family moved to New York from Tokyo. Ex. H at 1. This is incorrect.

[9] I take judicial notice of the Department’s school calendars for the 2021-2022 and 2022-2023 school years, found at https://www.schools.nyc.gov/about-us/news/2021-2022-school-year-calendar and https://www.schools.nyc.gov/about-us/news/2022-2023-school-year-calendar, respectively.