New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 581284 - NYC: 233146

FINDINGS OF FACT AND DECISION

Case Number: 233146

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 10/11/2022

10/28/2022

Actual Record Close Date: 11/07/2022

Date of Decision: 11/07/2022

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/11/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], Attorney

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

NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/28/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED]., Attorney

[REDACTED], Parent

[REDACTED] PSY.D., Clinical Director,

[REDACTED] School

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

DOCUMENTS ENTERED INTO THE RECORD

PARENT DOCUMENTS

Exhibit Date Description Page(s)

Entered 10/11/2022

A September 6, 2022 Impartial Hearing Request /

Due Process Complaint (DPC) 4

Entered 10/28/2022

B August 22, 2022 10-Day Letter 1

C Excluded Irrelevant

D August 18, 2022 [REDACTED] School [UP] Contract 3

E October 12, 2022 Affidavit of Payment 1

F 2022-2023 School Schedule 1

G 2022-2023 Program Description 2

H October 27, 2022 Affidavit of [REDACTED],

Clinical Director, [REDACTED] 4

I October 27, 2022 Affidavit of [REDACTED] 4

HEARING OFFICER DOCUMENTS

Entered 10/11/2022

I Notice of appointment, 09/27/2022, four pages

DEPARTMENT OF EDUCATION

None

INTRODUCTION

On 09/27/2022, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Hearing commenced on 10/11/2022, to allow the DOE an opportunity to present a defense to the allegations contained in the DPC.

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

Due Process Complaint (DPC) alleges a failure of the DOE to offer the Student a Free Appropriate Public Education (FAPE) for the 22-23 school year. (Ex A 1)

Student educational history, and allegations:

• • Student “is a rising 11th grader and a child of average intellectual ability with mental health issues that impact her progress in school. She has been classified as emotionally disturbed under the IDEA and provided with an IEP;
• • The parents prevailed in two previous Due Process claims for payment of the [UP] tuition by the District…school year 2019-2020;
• • The parents again challenged the District’s program for the 2021-2022 school year. The District settled the matter, agreeing to pay the entirety of the [UP] tuition (Ex A 2);
• • For the 22-23 school year the District failed to hold an Individualized Education Program (IEP) meeting, failed to develop an IEP for the 22-23 school year, and failed to offer the Student a placement (Ex A 2);
• • The UP serves as an appropriate Student program for the 22-23 school year (Ex A 4); and
• • The Parent properly notified the DOE of re-enrollment at the UP.

(Ex A 4)

Parent seeks a variety of forms of relief to remedy the alleged failure: including, a finding that the DOE denied the Student a FAPE, for the 22-23 school year; the UP placement is appropriate; District will fund Student 22-23 placement at the UP. (Ex A 4)

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.

THE POSITION OF EACH PARTY

At Hearing, of 10/11/2022, the DOE Representative advised the IHO that the matter had been “referred for settlement.” (T 4)

The DOE Representative sought extension of the Compliance Date to “facilitate settlement”. (T 4 & 14)

The IHO noted the Compliance Date was over a month away and that the matter would not be delayed unless a settlement was at hand. For example, a Stipulation of Settlement was about to be signed. (T 4-5 & 13-15)

The DOE Representative requested another date to come back to present the District’s case. (T 5)

The IHO found no valid reason upon which to grant an adjournment, and the matter continued.

Ultimately, the DOE did not avail itself of the opportunity to defend against the allegations contained in the DPC.

The matter was then set to continued, on 10/28/2022. (T 16)

Parent Attorney submitted Documentary evidence and Testimony in support of the Parent’s position. The Evidence is found to be credible and supportive of the Parent’s allegations, contained in the DPC, as considered below:

A September 6, 2022 Impartial Hearing Request / Due Process Complaint (DPC)

Parent details Student educational history, allegations of denial of a FAPE, for the 22-23 school year, and sought after relief.

B August 22, 2022 10-Day Letter

Parent provides notice to the District of: alleged failure to develop an IEP for the 22-23 school year; continued enrollment at the UP which currently serves as Student Pendency placement; and intent to seek District funding for Student attendance, at the UP, for the 22-23 school year.

D August 18, 2022 [REDACTED] School [UP] Contract

Student 22-23 Tuition is set forth as: $[REDACTED]. (Ex D 1)

Parent is obligated to payment of Tuition, via signature upon the Contract. (Ex D 3)

E October 12, 2022 Affidavit of Payment

Payment of $100.00 has thus far been made towards the 22-23 UP Tuition, leaving a balance of $[REDACTED].

F 2022-2023 School Schedule

Student UP schedule is outlined.

G 2022-2023 [UP] Program Description

General characteristics of the UP are set forth, including:

• • an independent school that provides a therapeutic day program for students in New York City, that combines academic, advising, and clinical program components;
• • mission is to promote the emotional mastery needed for learning and living, bringing students into a strong academic and therapeutic environment and propelling them towards postsecondary independence and success;
• • program provides every student individually formulated support in a structured and respectful environment;
• • teaches students how to succeed and prepares them to meet the challenges of college and everyday life;
• • offers a full suite of academic coursework that follows from its mission;
• • Teaching and learning occur through an intentional mingling of structure, flexibility, and care. Supported by clinical and advising resources, classes are a time for engagement, connection, and growth;
• • clinical program includes unlimited access to services in our Counseling Center;
• • Clinical staff consists of doctoral level psychologists and a doctoral level school psychology intern with training in evidence-based therapies for ADHD, anxiety, and mood disorders;
• • Individual counseling is available on demand. Therapy outside of school is mandatory for all students;
• • Collaboration between the clinical staff and outpatient team is ongoing;
• • offers a range of therapeutic support groups, which students can elect to join;
• • Advising group meetings are used to provide deep, regular attention to academic, social, and emotional experiences;
• • Executive functioning, interpersonal interactions, coping skills, and self-advocacy are all targeted areas for development (Ex G 1);
• • serves adolescents who have struggled to negotiate the academic, social, and emotional pressures of the typical school environment;
• • students are intelligent, social, resourceful, and creative. Many have come from competitive independent and public schools where they have demonstrated significant achievement in areas of particular interest (Ex G 1); and
• • students may be struggling with Attention Deficit Hyperactivity Disorder (ADHD)

adjustment problems, anxiety, depression, or difficulties with peers. They may also have learning issues. (Ex G 2)

H October 27, 2022 Affidavit of [REDACTED], Clinical Director, UP

Testimony includes:

• • Witness qualifications and role at the UP (Ex G 1);
• • A review of general characteristics of the UP (Ex H 1-2);
• • Training is provide in areas of: Dialectical Behavior Therapy (“DBT”), supporting Executive Functioning, Diversity Equity and Inclusion, and Universal Design of Learning (UDL); and P (Ex H 1-2)
• • Details regarding Advisory Program, Quarterly Reports, and student class placement (Ex H 2);
• • Details regarding the UP Clinical Program and Parental Involvement (Ex H 3);
• • Familiarity with the Student;
• • Student is described as: “is a student with a complex clinical profile. She has multiple psychiatric diagnoses that interfere with her ability to function as a student. She requires clinical support in school at this time.” (Ex H 3);
• • Witness reviews Student schedule, and class composition (Ex H 3-4); and
• • Student supports include: classes that never exceed 12 students; advising and therapeutic supports; and support for anxiety via trained teacher and a Counseling Center. (Ex H 3-4)

I October 27, 2022 Affidavit of [REDACTED]

Student’s Parent provides Testimony that includes:

• • Having never received “any notifications from the District to develop an IEP for the 2022-2023 school year either before the start of that school year or since the start of the school year”;
• • The Student: “has special mental health challenges that require specialized support in school. She has had an IEP since middle school:’

- Family 2021 income was $[REDACTED], and there are no “other liquid assets that can be used towards tuition”;

• • Tuition for the 2022-2023 school year is $[REDACTED];
• • Parent executed the UP Tuition contract and agreed to pay the tuition;
• • Parent has paid $[REDACTED] towards the tuition (Ex I 1);
• • Student was reenrolled at the UP “because she has benefited greatly from the program. The program has supported her development from being very fragile when she started the program in the 2019-2020 to becoming a more confident person. The support provided by the program has allowed her to be engaged in her education. Being with similarly situated peers in this program has facilitated [Student’s] ability to make friends. She is able to accept changes in treatment modalities because of the growth she has made at [UP]” (Ex I 2);
• • Student still requires specialized supports provided by the UP; and
• • Ten Day Notice Letter was provided to the District, via letter of 08/22/2022. A response was never received. (Ex I 2)

Additional Testimony was provided, at Hearing, as considered below:

[REDACTED], Parent

Testimony included:

• • Familiarity with Affidavit (T 28, Ex I);
• • Not having assets available upon which to draw to pay the UP Tuition, for the Student (T 28-29); and
• • Witness describes the support provide, by the UP, since Student began attending, for the 19-20 school year through the 22-23 school year: “Well, it's a continuation of the supports they've offered since she began the school. So there is a built-in counseling center, where she can go on the days where she doesn't feel quite up to things, which still happens. We are in constant touch with her advisor. We get weekly progress reports. Whenever there are any issues that happen in the school that she informs the counseling center of, they inform me so we can help her when she gets home. There is pretty much a wraparound service of support for her that I don't know that she'd get anywhere else.” (T 41)

[REDACTED], PSY.D., Clinical Director, UP

Testimony included:

• • Familiarity with Affidavit (T 45, Ex H);
• • Student has had to access the Counseling Center, at the UP (T 46);
• • Student Counseling Center goals include: “…we would like to see her maintain, you know, stability in terms of…her emotions, her anxiety. We want her to be able to…build and sustain connections, meaning connections with peers, having good…peer relationships, good relationships with adults in the school, given her history of having struggled in those areas that led her not attending school at all… And in terms of her clinical symptoms…effectively using skills to help manage her symptoms of depression and anxiety, because they were…quite severe in the past. They led to her needing higher levels of care and intervention to maintain safety…So having that access to the counseling center on demand is important so that if Kiara starts to experience any of those symptoms, she can step out of class, she can come and meet with a psychologist right away, in the moment, to get some assistance with being able to utilize skills to help her in the moment. And then the goal being to get her to reengage in class as quickly as possible.” (T 47);
• • Student receives evaluations and progress reports (T 48);
• • Regarding Student attendance, at the UP: Student“…benefits from being at a school like [UP] because we are a small, therapeutic, college-prep program. I do think it's important that she's in a setting with small classes. That way, she's getting…a lot more attention…from teachers. She's being placed with peers who are functioning at similar levels, both cognitively and social-emotionally…given [Student’s] history of being bullied in prior academic settings, which again, has led to school refusal, she's being placed at [UP], where we don't accept students who have…overt behavioral issues or who have any patterns of aggression or bullying…So again, she is being put in an environment with students who have similar social-emotional difficulties that are more internalizing in nature…And then, the faculty and advisors, in addition to the clinical staff, are receiving professional development on an ongoing basis. And that targets not just academics and curriculum but a lot of clinical support as well. So that's something that is provided both to the clinical and nonclinical faculty.” (T 50); and
• • With support, the Student is learning to manage her symptoms of anxiety. (T 51)

FINDING OF FACTS AND DECISION

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

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

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

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

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

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

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

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

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

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

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

DOE offer of FAPE for the 2022-2023 School Year

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

The DOE has evidenced neither the development of an appropriate IEP, nor placement, for the commencement of the 22-23 school year.

The DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 22-23 school year.

I find the DOE failed to offer the Student a FAPE for the 22-23 school year.

UP Placement for the 22-23 School Year

Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 22-23 school year.

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

Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex F, G, H, I & T 41, 46-48 & 50-51)

Notably, the Student’s Parent provides Testimony which evidences a clear understanding of the Student’s challenges, the supports enabling progress, and the basis upon which to reenroll the Student at the UP. Parent Testimony is uncontroverted that the UP has supported Student development; engaged her in her education; and notes areas of growth. (Ex I 2 & T 41)

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

I find the UP provides an appropriate education and program for the Student for the 22-23 school year.

TUITION FUNDING 22-23 School Year

Parent is entitled to funding for the Student, UP, 22-23, Tuition.

The DOE has denied a FAPE to the Student for the 22-23 school year.

Student 22-23 Tuition is evidenced to be: $[REDACTED]. (Ex D 1)

Parent is obligated to payment of Tuition, via signature upon the Contract. (Ex D 3)

Payment of $[REDACTED] has thus far been made towards the 22-23 UP Tuition, leaving a balance of $[REDACTED]. (Ex E)

Parent Testifies being unable to pay the UP tuition based on family circumstances and assets. (Ex I 1 & T 28-29)

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

In this matter the Parents choose to continue Student placement at UP, without any DOE alternative. (Ex I)

Parent provides uncontroverted Testimony relative to their financial capability.. (Ex I 1 & T 28-29)

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

I find the Parent has established an inability to fund the UP Tuition and await reimbursement.

I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE.

I find the Parent is entitled to direct DOE funding of the balance of the 22-23 school year, Student, UP tuition, as Ordered below.

ORDER

• • The Department of Education (DOE) failed to offer the Student a FAPE for the 2022-2023 school year.
• • The [REDACTED] School [UP} provides the Student an appropriate program and placement, for the 22-23 school year.
• • The DOE shall directly fund Student, 22-23 Tuition, for attendance at The [REDACTED] School [UP}, in the amount of $[REDACTED]:
• • The Amount of $[REDACTED] to be reimbursed to the Parent; and
• • The balance of $[REDACTED] to be directly funded to The [REDACTED] School [UP].
• • The DOE shall provide Parent with any documents or forms necessary to facilitate payment under this Order, within ten days of the date of this Order.
• • 5. This decision is subject to appeal and review by the State Review Officer.

DATED: November 7, 2022

DANIEL AJELLO

DANIEL AJELLO

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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