New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 583203 - NYC: 234932

FINDINGS OF FACT AND DECISION

Case Number: 234932

Student’s Name: (“Student”)

Date of Birth: REDACTED

School District: District

Hearing Requested by: (“Parent”)

Request Date/Date Complaint Filed: 9/7/2022

Date(s) of Hearing: 11/17/2022

Actual Record Closed Date: 11/30/2022

Date of Decision: 12/1/2022

Hearing Officer: Daniel M. Hochbaum

INTRODUCTION

This case concerns Student, a [REDACTED]-year-old 7th grader who attends Private School #1. The Parent, through counsel, filed a Due Process Complaint (“DPC”) on or about 9/7/2022. In the Request, the Parent alleges that the Department of Education (“DOE”) failed to offer the Student a free appropriate public education (“FAPE”) for the 2022-2023 school year. Ex. A.

The Parent seeks an award of tuition for Student’s attendance at Private School, a private program not approved by the Commissioner of Education for the education of students with disabilities for the 2022-2023 school year. Id. The Parent further seeks special transportation (consisting of transportation from the closest safe curb location to school; air conditioning; limited travel time; and a route with fewer students, between the Student’s home and school), an Assistive Technology (“AT”) Evaluation to be completed by the DOE, and a reconvene of the IEP team to consider the results of the AT evaluation. Id. Furthermore, Parent alleges that the equities support their claim for tuition reimbursement and direct tuition funding for the school years at issue. Id.

As discussed below, I find that (a) the DOE failed to meet its burden that it offered Student a FAPE for the 2022-2023 school year, (b) Private School #1 offers Student with specially designed instruction sufficient to meet Student’s needs, and (c) the equities support the Parent’s requested relief. I further find that special transportation, an AT evaluation, and an IEP reconvene are all warranted.

PROCEDURAL HISTORY

As noted above, this case was filed on 9/7/2022. Impartial Hearing Officer (“IHO”) Lorianne Wolseley was appointed on 10/13/2022. That appointment was rescinded and IHO Eryn DeFontes was appointed on 10/14/2022. IHO DeFontes held a Pre-Hearing Conference with the parties on 10/21/2022. IHO DeFontes scheduled a hearing for 11/17/2022 but was unable to conduct the hearing on that date due to illness. Parent’s counsel requested that the hearing proceed on 11/17/2022 as previously agreed upon. To allow for the hearing to proceed as scheduled, I was appointed to the case on 11/16/2022 under the procedures in 8 NYCRR § 200.2(e)(1)(ii)(c).

On 11/17/2022, both parties appeared for a virtual hearing. The DOE did not call any witnesses but did introduce 9 exhibits. The DOE conceded it failed to offer the Student a FAPE for the 2022-2023 school year. Tr. 69. The Parent submitted 19 exhibits into the record and the DOE consented to their admission into the record. Included in Parent’s evidence were 3 affidavits, one each from the Head of School of Private School #1, the Parent, and a Neuropsychologist.1 The DOE elected not to cross-examine the affiants. All 3 affidavits were accepted in the record. I proceeded with some brief clarifying questioning of the Neuropsychologist. The Parent rested their case. The DOE declined to make a closing argument. Parent’s counsel made an oral closing argument.

1 Due to difficulty finding notaries, the Parent and Neuropsychologist were sworn in on the record and swore to the content of their affidavits.

FINDINGS OF FACT

After a full review of the record generated at hearing, I make the following findings of fact and determinations.

As noted above, the Student is a [REDACTED]-year-old student who attends Private School #1. The Student has a variety of disability-related educational needs including difficulties with attention, hyperactivity, executive functioning, reading, and language-based tasks. In December 2021, the Neuropsychologist evaluated the Student and diagnosed him with Attention-Deficit/Hyperactivity Disorder (“ADHD”), Combined presentation and a Specific Learning Disorder With impairment in reading. Ex. M. On 5/26/2022, the IEP team met for an IEP meeting and classified the Student as a student with an Other Health Impairment. Ex. 1.

Prior to the 2022-2023 school year, the Student attended a different private school, Private School #2, for the preceding 4 school years (2018-2019, 2019-2020, 2020-2021, and 2021-2022). Ex. A. Private School # 2 is an “independent elementary school designed for students with language-based learning disabilities” and provides “students with language-based disabilities multisensory instruction within small classroom settings.” Ex. Q003-4. According to the Neuropsychologist, the Student made progress at Private School #2, so much so that his Specific Learning Disorder at the time of the 2022 Neuropsychological report now fell in the “Mild Severity” range. Ex. M-011. Private School #2 ends in 6th grade, and as a result, the Student aged out of the school and needed a new school for 2022-2023.

Despite the Student’s progress, the Student still had significant needs entering the 2022- 2023 school year. The Neuropsychologist stated that the Student had “particular deficits in attention and executive functioning,” which required significant support. Ex. S005. Specifically, the Neuropsychologist testified that the Student had challenges with a variety of areas including processing speed, response time, omission errors, sustained attention over time, inhibiting impulses, self-regulation, emotional regulation, shifting and being flexible, self-initiating, working memory, organization, and task monitoring, among others. Tr. 93-94. Additionally, according to the Neuropsychologist, the Student still had academic difficulties in reading (phonemic proficiency), math (word problems which were impacted by his reading abilities), and writing (that he needed structure when writing). Tr. 92-93. Finally, as the Neuropsychologist testified, the Student’s achieved the scores on the diagnostic testing in a highly structured and quiet setting with minimal distractions. Tr. 96. As a result, the Neuropsychologist stated that these issues would be even more pronounced in a large classroom setting. Id.

At the 5/26/2022 IEP meeting, the DOE decided to place the Student in a General Education program with Special Education Teacher Support Services (“SETSS”) and various related services. Ex. 1-12. The Parent disagreed with this decision and wrote to the DOE on 8/23/2022 stating that she intended to unilaterally place the Student at Private School #1 if the DOE did not “cure” her concerns and “immediately offer an appropriate program and placement” for the Student. Ex. H003. There was no evidence that the DOE responded to the Parent’s letter within the required 10 days. As a result, the Parent enrolled the Student in Private School #1. Ex. R006.

CONCLUSIONS OF LAW AND ANALYSIS

This case primarily concerns the Parent’s request that that DOE pay for the Student’s tuition to Private School # 1 for the 2022-2023 school year. When a parent believes that the school district has failed to provide a student with a FAPE, a parent may unilaterally enroll the child in a private school and seek tuition payment from the school district by filing a due process complaint. Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 376 (2d Cir. 2014) (quoting Reyes ex rel. R.P. v. New York City Dep’t of Educ., 760 F.3d 211, 215 (2d Cir. 2014)). The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” 20 U.S.C. § 1415(b)(6)(A).

A district must pay for the cost of a student’s tuition at a private school if the three prongs of the Burlington/Carter test are satisfied: (1) the DOE denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition. See Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-15 (1993).

In New York, school districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. NY Educ. Law § 4404(1)(c)).

• • Prong I The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education (“FAPE”). 20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized instruction and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”). 34 C.F.R. § 300.13. A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA’s procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). 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. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden at the hearing. The DOE Representative indicated on the record that it conceded Prong I and presented no witnesses. Tr. 68, 69. Therefore, I must find that the DOE failed to offer the Student a FAPE for the 2022-2023 school year.

Nevertheless, even had the DOE chosen to defend itself, the record clearly shows that the DOE denied the Student a substantive FAPE for the 2022-2023 school year. In the 5/26/2022 IEP, the DOE offered the Student a General Education program with 5 periods per week of SETSS and various related services. Ex. 1-12. The evidence showed that this program was inadequate and would not allow the Student to make progress in light of his circumstances.

As detailed above, the Student has significant disability needs related to attention and executive function in addition to milder (but still significant) needs in reading. Ex. M. The Neuropsychologist testified that she had “real grave concerns” about the Student being placed in a General Education setting and that such a setting was “wholly inappropriate for [the Student].” Tr. 97; Ex. S006. Ultimately, the Neuropsychologist concluded that placing the Student in a General Education setting with SETSS would lead to regression because of the Student’s attention and executive functioning needs. Tr. 97.

Regarding the Student’s attention difficulties, the Neuropsychologist testified that a General Education classroom would have too many students and thus be “way too large, distracting, and overstimulating of an environment for [the Student].” Tr. 97. The Neuropsychologist further testified that the Student is highly prone to losing focus, and the sole teacher in a General Education classroom would not be able to sufficiently support and redirect him. Id. Consequently, the student would have difficulty engaging with the content and would miss information. Id. The Neuropsychologist also explained that a General Education classroom would not be able to adequately support the Student in light of his executive functioning deficits. The Neuropsychologist stated that if the Student were in such a setting, he would not receive sufficient support for planning and organization, which he needs. Tr. 99-100. The Neuropsychologist also addressed the issue of whether the addition of SETSS would be sufficiently supportive for the Student and stated that while such services might assist the Student with his academic deficits, those services would not address the Student’s executive functioning. Tr. 97. I credit the Neuropsychologist’s testimony on these points because of her direct knowledge of the Student, her extensive knowledge of the DOE’s programs, and her testimony that she has visited many such DOE settings. Tr. 97; Ex. S004.

In the Due Process Complaint, the Parent’s counsel made numerous other allegations regarding how the DOE denied the Student a FAPE, both substantively and procedurally. These included that (1) the DOE predetermined the outcome of the IEP meeting, (2) that the statement of the Present Levels of Performance in the IEP was insufficiently descriptive, (3) that the DOE applied illegal blanket policies regarding recommended methodologies for the Student, (4) that the IEP team only considered services that were on the DOE’s continuum of services, rather than considering what the Student required and building a program from there, (5) that the DOE’s SESIS software program from writing IEPs constrained the IEP drafters and limited them from making specific recommendations for the Student, (6) that the DOE failed to provide certain minutes or notes of the IEP meeting to the Parent, (7) that the IEP team ignored the recommendations of the Neuropsychologist and Head of School from Private School #2, (8) that the IEP team did not rely on sufficient evaluative data in making its recommendations for the Student, (9) that the DOE recommended the program without sufficient Prior Written Notice, (10) that the IEP goals were insufficient to meet the student’s needs, (11) that the IEP team did not recommend the appropriate level or type of related services, and (12) that the school the DOE offered to the Student could not implement the IEP. See Ex. A.

There was little to no exploration in the record of these topics. In fact, the Parent simply testified that the Due Process Complaint “accurately recounts the events of the IEP meeting” and that she would not “repeat the many issues that [she] had with that IEP meeting.” Ex. S005. I do not need to reach these numerous other issues because the DOE conceded that it denied the Student a FAPE and, as discussed above, the evidence the parties presented clearly showed that the DOE’s offer of General Education plus SETSS and related services was inappropriate for the Student. Nevertheless, I note that the Parent made these allegations, that the DOE has the burden of production and persuasion, that the DOE failed to carry its burden concerning these allegations when it failed to present information on these many topics, and that I am therefore constrained to find that the DOE denied the Student a FAPE in the ways alleged by the Parent.

As a result of the above, the DOE denied the Student a FAPE for the 2022-2023 school year.

• • Assistive Technology Evaluation and IEP Meeting Before proceeding with the remainder of the Burlington/Carter analysis, I must briefly address the Parent’s request for an AT evaluation and an IEP meeting to consider the results of that evaluation. The DOE consented to an order requiring it to conduct an AT evaluation and for a subsequent IEP meeting. Tr. 71. Moreover, I find that an AT evaluation is warranted.

The Parent presented evidence that she emailed the DOE requesting an AT evaluation on 5/26/2022 (the same date as the IEP meeting). Ex. E001. The Parent testified that the DOE did not respond to this request or conduct the evaluation. Ex. R005. Moreover, the Neuropsychologist testified that an AT evaluation would be appropriate because the Student has language-based learning needs and AT could potentially help the student with planning and organizing his writing, comprehending the information he is reading, and support his retention of information. Tr. 101-

102. The Neuropsychologist also stated that AT could potentially allow the Student to demonstrate more successfully what he knows. Tr. 101.

Following the Parent’s request, the DOE was required to seek the Parent’s consent for the evaluation and conduct the evaluation. 8 NYCRR § 200.4(b)(1). When it did not do so, it violated the law and denied the Student a FAPE. Furthermore, all testimony in the record supports the appropriateness of this particular evaluation. Tr. 101-102. IHOs have the authority to remedy procedural violations of the IDEA. 20 U.S.C. § 1415(f)(3)(E)(iii). As such, I find that the DOE must conduct an AT evaluation of the Student and that the DOE must convene to consider the results of the evaluation as outlined in the remedy section below.

• • Prong II A private school placement must be “proper under the Act.” Carter, 510 U.S. at 12, 15;

Burlington, 471 U.S. at 370. This means that the Private School must offer an educational program which meets the student’s special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). 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 (“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).

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. 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 C.F.R. § 300.39(a)(1); 8 NYCRR § 200.1(ww); Hardison, 773 F.3d 386.

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 student with a disability, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112 citing Frank G., 459 F.3d at 364-65.

There is no doubt that Private School #1 meets the Frank G. standard and “provides educational instruction specially designed to meet the unique needs” of the Student that will enable him to make progress. First, Private School #1 specializes in serving students with and attention, executive functioning, and learning disabilities and has teachers specially trained to do so. Second, Private School #1 provides the Student with a small class size and student-to-teacher ratio which, in turn, appropriately supports his learning needs. Third, Private School #1 groups the Student with other students with similar learning needs. Fourth, Private School #1 individualizes instruction for the Student, specifically during its 1:1 classes. Fifth, Private School #1 is similar to Private School #2, a setting in which the Student previously made significant progress. I will discuss each in turn.

Private School #1 is appropriate for the Student because it specializes in serving students with attention, executive functioning, and learning disabilities and has teachers specially trained to meet these needs. The Head of School testified that Private School #1 serves students “in grades

4 through 12 who present with learning differences such as dyslexia, nonverbal learning disabilities, and attention/executive functioning challenges.” Ex. Q001. Moreover, the Head of School stated that the school provides its teachers with a “minimum of three hours per week of professional development, covering all aspects of teaching children with learning differences.” Ex. Q002. Relatedly, the teacher in Student’s 1:1 class (which will be discussed more below) has a master’s degree in learning disabilities. Ex. Q005. As a result, Private School #1 has the specialized knowledge to appropriately serve the Student.

Second, Private School #1 provides the Student with a small class size and student-to-teacher ratio which, in turn, appropriately support his learning needs. The Student is in an 8:1 (8 students to one teacher) classroom for the 2022-2023 school year, which the Neuropsychologist testified was appropriate. Ex. S006. Specifically, the Neuropsychologist stated that Private School #1’s “use of small-class settings allows for teachers to individuate the curriculum for each student and provide a student like [the Student] with the prompting, repeated instructions, redirection, and other modifications that he requires.” Ex. S007. The Neuropsychologist further elaborated that “the smaller class ratio would offer him the teacher attention that he needs” and would allow the Student to much better focus on what is being taught in the classroom. Tr. 98. Private School #1’s small class sizes therefore enable the teachers to provide the attention and executive functioning support that will enable the Student to progress.

Third, Private School #1 groups the Student with other students with similar learning needs. The Head of School testified that the Student is in a cohort called “Group 16,” and that this cohort “was developed to provide a small-class setting for students who require similar emphasis on attention, executive functioning, and phonological processing.” Ex. Q005. I find that grouping the Student with other students with similar needs is further evidence of the school individualizing the program for the Student and ensuring that he has an environment in which he can progress.

Fourth, Private School #1 individualizes instruction for the Student, specifically during its 1:1 classes. As noted above, the Student is enrolled in a 1:1 class period where he works on content and challenges unique to him. Ex. Q003. Additionally, the 1:1 teacher “is in constant contact with the subject matter of the Student to ascertain appropriate goals to adopt” for those sessions. Ex. Q003. The Parent provided evidence that the 1:1 teacher has developed 11 specially tailored goals that the Student works on during these class periods to support the Student’s learning. Ex. Q006; L002-003. This class – and the content taught within it – fall with in Frank G.’s definition of specially designed instruction to meet the unique needs of the child.

Fifth, Private School #1 is similar to Private School #2, a setting in which the Student previously made significant progress. As discussed above, the Student attended Private School #2 for 4 years and made progress there. Ex. Q004; S005. Private School #2, like Private School #1, is a school that specializes in serving students who present with language-based and attentional/executive functioning challenges. Ex. S003; Ex. N; Ex. P. Both schools provide small class sizes, evidence-based curricula, and intensive teacher support. Ex. N; Ex. P. As the Head of School testified, many students who age out of Private School #2 transition to Private School #1 precisely because of their similarities. Ex. Q003 (“Indeed, [Private School #2] is a well-known independent elementary school designed for students with language-based learning disabilities— many of whom attend [Private School #1] after aging out of [Private School #2] (as [Private School #2] only serves students through sixth grade…”). The Parent’s decision to unilaterally place must be judged primarily on the information she had at the time she decided to unilaterally place, and the similarities between the schools (and the progress he made at Private School #2) gave her good reason to expect that Private School #1 would be able to provide individualized instruction that would enable the Student to make progress.

The weight of the evidence establishes that Student’s individual special education needs were addressed by Private School #1 and that the instruction offered was “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364. I note that the DOE offered no arguments concerning the appropriateness of Parent’s unilateral placement. I further note that the DOE did not cross-examine any of Parent’s witnesses, nor did it object to any document accepted into the record. Under these circumstances, I find that the Parent’s witnesses are credible. As a result of the above, I find that Parent has met their burden in proving that Private School #1 offered an educational program which met Student’s need under Prong II of the Burlington/Carter standard.

• • Prong III Under the third and final prong of the Burlington/Carter test, courts consider “equitable factors” relevant to an order of tuition. Gagliardo, 489 F.3d at 112. “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [Department] throughout the process to ensure their child receive[s] a FAPE.” Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007). Specifically, equitable considerations include the parents’ participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the DOE. See D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 (S.D.N.Y. 2011).

On 8/23/2022, Parent provided the necessary Ten-Days’ Notice of their concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year. The Parent detailed specific concerns regarding the Student’s special education in the Ten-Day Notice. Ex. H. Parent furthermore, gave the DOE notice of their intention to unilaterally place the Student at Private School #1. Id. No evidence was submitted at hearing describing the DOE’s response to the Ten- Day Notice.

The Parent seeks reimbursement for their private school tuition costs and to have the remainder of unpaid tuition sent directly to Private School #1. This is an available remedy under the IDEA. See e.g., Mr. and Mrs. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”).

The Parent signed a contract with Private School #1 for the 2022-2023 school year. Ex. D. I find no issue with the reasonableness of the costs, including tuition, associated with Private School #1. See Q007. Moreover, I find that the weight of the evidence establishes that Parent cooperated with the DOE and its CSE’s efforts to develop an IEP and recommend a program and placement for the 2022-2023 school year when she provided the DOE with a copy of the Neuropsychological evaluation, participated in the 5/26/2022 IEP meeting, and attempted to find information regarding the DOE’s recommended placement (but could not do so). Ex. R004-5; Ex. F; see M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 254 (2d Cir. 2012); see also C.F. ex rel. R.F.

• • N.Y.C. Dep’t of Educ., 746 F.3d 68, 82 (2d Cir. 2014). By contrast, the DOE was not an equal partner in the Student’s education. The DOE did not give proper weight to the Student’s neuropsychological evaluation during the 5/26/2022 IEP meeting (despite it being provided in advance and being the most comprehensive data available about the Student’s needs), did not respond to the Parent’s concerns in the Ten-Day Notice, did not provide the Parent with a reasonable opportunity to visit its proposed placement, and did not offer any pendency placement when the Student aged out of Private School #2. Ex. R005-6; Ex. F; Tr. 54. Overall and after considering the record at hearing, I find that the equities heavily support Parent’s claim for tuition reimbursement and order the DOE to fully fund the Student’s tuition to Private School #1 for the 2022-2023 school year.

PENDENCY

The parties also disputed the Student’s “pendency/stay-put” placement during this proceeding. By way of factual background, the Student’s last agreed upon placement was at Private School #2, due to the unappealed Findings of Fact and Decisions in Cases 181760 (dated 1/02/2020) and 200516 (dated 4/27/2022). See Student X v. New York City Dep’t of Educ., 2008 WL 4890440, *23 (E.D.N.Y. Oct. 30, 2008); Letter to Hampden, 49 IDELR 197. Because the Student was aging out of the pendency placement at Private School #2, the Parent wrote to the DOE asking that the DOE offer the Student a pendency placement. Ex. H004-5. The DOE admitted that it did not offer the Student a pendency placement when he aged out of Private School #2. Tr. 54.

The IDEA and the New York State Education Law require that a student remain in their then current educational placement, unless the student’s parent(s) and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student. 20 U.S.C. § 1415(j); Educ. Law §§ 4404(4), 4410(7)(c); 34 C.F.R. § 300.518(a); 8 NYCRR § 200.5(m); see, Student X, 2008 WL 4890440, at *20; Bd. of Educ. v. O’Shea, 353 F. Supp. 2d 449, 455-56 (S.D.N.Y. Jan. 18, 2005).

Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships. See Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982); see also Wagner v. Bd. of Educ., 335 F.3d 297, 301 (4th Cir. 2003); Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3d Cir. 1996).

Under the IDEA, the pendency inquiry focuses on identifying the student’s then-current educational placement. Mackey v. Bd. of Educ., 386 F.3d 158, 163 (2d Cir. 2004), citing Zvi D. 694 F.2d at 906. Although not defined by statute, the phrase “then current placement” has been found to mean:

• • the placement described in the student’s most recently implemented IEP;
• • the operative placement actually functioning at the time when the due process proceeding was commenced; or
• • the placement at the time of the previously implemented IEP.

See Dervishi v. Stamford Bd. of Educ., 653 Fed. App’x 55, 57-58 (2d Cir. June 27, 2016), quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 (holding that the pendency provision “requires a school district to continue funding whatever educational placement was last agreed upon for the child”); see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 (2d Cir. 2015) (holding that a student's entitlement to stay-put arises when a due process complaint notice is filed); Susquenita Sch. Dist.

• • Raelee, 96 F.3d 78, 83 (3d Cir. 1996); Letter to Baugh, 211 IDELR 481 (OSEP 1987).

Significant to this case, a prior unappealed IHO decision may establish a student’s current educational placement for purposes of pendency. Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197.

The DOE argues that the Parent was not entitled to assert Private School #1 as the pendency placement under the precedent in Ventura De Paulino v. New York City Dep’t of Educ., 959 F.3d 519 (2d Cir. 2020).2 The Parent argues that the De Paulino court specifically stated that its decision did not apply to factual scenarios where, as here, the pendency placement is no longer available. Id. at 534 n. 65 (“We do not consider here, much less resolve, any question presented where the school providing the child’s pendency services is no longer available and the school district either refuses or fails to provide pendency services to the child. Those circumstances are not present here”). I agree with the Parent that De Paulino does not apply.

The DOE was obligated to offer the student a pendency placement but did not (even though the Parent specifically requested that the DOE do so). When the DOE did not do so, it failed to meet its legal obligations and forfeited its right to select the pendency placement to the Parent so that the student would have some school to attend for the school year. However, even if the DOE did not forfeit its right to select the pendency placement to the Parent, I agree with the Parent’s argument that Private School #1 meets the “substantial similarity” analysis put forward by the Second Circuit in Concerned Parents v. N.Y. City Bd. of Educ., 629 F.2d 751 (2d Cir. 1980). Here, as described in the analysis above, the program at Private School #1 is substantially similar to the program at Private School #2, and in the interest of continuity of the Student’s education – the fundamental purpose of the pendency provision of the IDEA – I find that Private School #1 is the Student’s pendency placement.

PENDENCY ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

2 The DOE also argues that the non-binding opinion of the New York State Review Officer in Appeal No. 22-133 applies. However, I find that the Student’s case is distinguishable from Appeal No. 22-133 because here the Student’s pendency placement (i.e., the type of program) was established via an unappealed Findings of Fact and Decision whereas there the parent unilaterally placed the student and had not succeeded in an impartial hearing before asserting that an unapproved private school was the student’s pendency placement.

• • The DOE shall, retroactive to the filing of the Parent’s Due Process Complaint and during the pendency of these proceedings, provide or otherwise fund special transportation to and from the Student’s home and Private School #1 consisting of:
• • transportation from the closest safe curb location at the Student’s home to Private School #1;
• • transportation from Private School #1 to the closest safe curb location at the Student’s home;
• • air conditioning;
• • limited travel time; and
• • a route with fewer students.
• • The DOE shall directly pay Private School # 1 the pro-rated daily tuition for all days from the date of the Parent’s Due Process Complaint through the conclusion of these proceedings. The DOE shall make such payment within 15 days of the date of its receipt of an invoice from Private School #1. The DOE shall not require the submission of any other documents before making payment.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

• • The DOE denied the Student a FAPE for the 2022-2023 school year.
• • The DOE shall, within 3 days of this order, assign an individual from its Impartial Hearing Order Implementation Unit (IHOIU) to serve as a contact person for the Parent regarding the implementation of this Order. The IHOIU contact person shall provide their name, direct phone number, and email address to the Parent and the Parent’s attorney within 3 days of the date of this order. The contact person shall respond to any inquiry by the Parent (or her attorney) concerning the implementation of this order within 2 business days.
• • The DOE shall reimburse the Parent any monies that she paid to Private School #1 for the Student’s tuition at Private School #1 for the 2022-2023 school year. The DOE shall reimburse the Parent within 15 days of the Parent providing a cancelled check, payment receipt from Private School #1, or an affidavit regarding any tuition payments the Parent made.
• • The DOE shall directly pay Private School #1 $75,500 for the Student’s tuition for the 2022-2023 school year minus any amount paid by the Parent. The DOE shall pay Private School #1 within 15 days of the date of this order. The DOE shall not require copies of any attendance records, contracts, or invoices before making payment.
• • The DOE shall provide or otherwise fund special transportation to and from the Student’s home and Private School #1 for the entire 2022-2023 school year. The DOE shall ensure that such transportation is in place within 5 days of the date of this order. The transportation ordered here shall consist of:
• • transportation from the closest safe curb location at the Student’s home to Private School #1;
• • transportation from Private School #1 to the closest safe curb location at the Student’s home;
• • air conditioning;
• • limited travel time; and
• • a route with fewer students.
• • The DOE shall conduct an Assistive Technology (“AT”) evaluation of the Student and issue a report of the results to the Parent within 30 days of the date of this order. The Parent shall have the right to decide whether the DOE will evaluate the Student at Private School #1 or at the Committee on Special Education offices. The AT evaluation shall include testing of technologies that may assist the student’s reading, writing, planning and organization, and attention, as well as interviews with at least two of the Student’s current teachers. If the evaluator finds that AT is appropriate for the Student, the evaluation shall include specific recommendations regarding how the AT should be incorporated into the Student’s IEP.
• • Within 15 days of the DOE issuing the AT evaluation report to the Parent, the DOE shall convene an IEP meeting to review the report and determine what, if any, changes need to be made to the Student’s IEP. The IEP meeting shall not serve as the Student’s annual IEP meeting.

SO ORDERED.

DATED: 12/1/2022

/s Daniel M. Hochbaum 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

DISTRICT EXHIBITS

Exhibit

Date

Title

Pages

1

5/26/2022

Individualized Education Program

19

2

5/26/2022

Meeting Attendance Page

1

3

7/27/2022

Prior Notice Package for Placement

6

4

Undated

Speech and Language Progress Report 2002

2

5

3/18/2022

Report Card

9

6

1/18/2022

Neuropsychological Evaluation

21

7

4/02/2021

Psychoeducational Evaluation

8

8

12/16/2020

Occupational Therapy Evaluation

8

9

12/04/2020

Speech and Language Evaluation

4

PARENT EXHIBITS

Exhibit

Date

Title

Pages

A 09/07/2022 Processed Impartial Hearing Request with Cover Email 12

B 01/02/2020 Findings of Fact and Decision re IH Case No. 181760 20

C 04/27/2022 Findings of Fact and Decision re IH Case No. 200516 12

D 05/20/2022 Enrollment Contract with Addendum 7

E 05/26/2022 Email from Parent Requesting AT Evaluation 1 F 08/03/2022 – 08/04/2022 Email Thread between Parent and DOE re DOE- Recommended School Placement 5 G 08/05/2022 Email from Parent to DOE Placement 2

H 08/23/2022 Ten Day Notice with Addendum re Pendency 5

I 09/13/2022 DOE Letter Acknowledging Receipt of Parent’s August 23, 2022 Ten Day Notice with Addendum re Pendency 1

J 10/21/2022 DOE’s Belated Due Process Response 4

K

2022-2023

SY 2022-2023 Fall Midterm Report Card 1 L 2022-2023 SY

2022-2023 Fall Focus Report

8

M

01/18/2022

Neuropsychological Evaluation

21

N

Undated

Private School #2 Program Description

1

O

10/24/2022

Class Schedule

1

P

Undated

Private School # 1 Program Description

1

Q

11/14/2022

Affidavit of Testimony – Head of School

7

R

Undated

Affidavit of Testimony – Parent

7

S

Undated

Affidavit of Testimony – Neuropsychologist

8

IHO EXHIBITS

Exhibit

Title

Date

Pages

I.

Emails between IHO Eryn DeFontes and Parent’s Counsel

10/17-

10/19/2022

7

II.

Parent’s Pendency Brief with Addendum A

11/10/2022

17