New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 585053 - NYC: 236625

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED]

School District: [REDACTED]

Impartial Hearing Officer: Richard J. Zeitler, Jr.

Date of Filing: 09/08/2022

Hearing Requested by: Parent

Date of Hearing: [REDACTED]

Record Close Date: 02/02/2023

Date of Decision: 02/16/2023

Names and Titles of Persons Who Appeared [REDACTED]

For the Student:

[REDACTED], Esq.

[REDACTED], Parent Student

For the Department of Education:

N/A ^[1]

Background

The parents, through counsel, filed a Due Process Complaint (“DPC”) on or about September 8, 2022. In the Request, the parents allege that the Department of Education (“DOE”) failed to offer the student with a free appropriate public education (“FAPE”) for the 2022-2023 school year. (See Ex. A-1)

The parents further allege that the DOE violated the Student’s procedural and substantive rights to a FAPE, including that the last meeting of the Committee of Special Education (CSE), held on May 13, 2022, was not duly constituted, and that the CSE did not conduct, secure, consider, or rely upon sufficient evaluative measures in determining that the Student no longer qualified for disability classification and did not develop for the Student an individualized education plan (IEP) for the 2022-2023 school year. (See id. at A-1 to A-3) By way of relief, the parents seek (i) an order granting pendency in a June 17, 2019 findings of fact and decision (FOFD); (ii) an award of tuition funding for Student’s attendance at the Private School, for the 2022-2023 school year; and (iii) an award of funding for transportation to and from the Private School for the 2022-2023 school year. (See id. at A-2 to A-4)

Procedural History

I was appointed to oversee this matter on November 28, 2022. After a conference, held on December 14, 2022, I issued Orders of Extension on November 30, 2022, December 20, 2022, and January 12, 2023. (See IHO Exs. I, II, and III) A hearing on the merits was held before me on [REDACTED].^[2] The DOE did not appear and thus did not introduce any witness testimony or any other evidence. Parent submitted 10 exhibits into the record (Exs. A through J), and they were all admitted into evidence. The parents offered the testimony of the Private School Psychologist via affidavit, and that of the Parent, who was present and testified live. This decision now follows.

I. Pendency

“During the pendency of any proceedings relating to the identification, evaluation or placement of the student, the IDEA and the New York State Education Law require that a student remain in his or her then-current educational placement, unless the student's parents and the board of education otherwise agree.” (Application of the New York City Dept. of Educ., SRO Appeal No. 22-176, at pp. 7 to 8) 3 The pendency inquiry focuses on identifying the student’s then-current educational placement. (See 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 (1) the placement described in the student’s most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) 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)) 4 A prior unappealed IHO decision may also establish a student’s current educational placement for purposes of pendency. (See Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197 (OSEP 2007))

The Second Circuit has stated that educational placement means “the general type of educational program in which the child is placed” (Concerned Parents, et. al. v. New York City Board of Educ., 629 F.2d 751, 753, 756 (2d Cir. 1980)), and the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers. (See T.M., 752 F.3d at 171) However, if there is an agreement between the parties on the student’s educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student’s then-current educational placement. (See Bd. of Educ. v. Schutz, 290 F.3d 476, 483-84 (2d Cir. 2002); Evans v. Board of Educ., 921 F. Supp. 1184, 1189 n.3 (S.D.N.Y 1996); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp. 2d 354, 366 (S.D.N.Y. 2000), aff’d, 297 F.3d 195 (2d Cir. 2002); see also Letter to Hampden, 49 IDELR 197.

3 Citing 20 U.S.C. § 1415[j]; Educ. Law §§ 4404(4); 34 CFR 300.518(a); 8 NYCRR 200.5(m); see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 (2d Cir. 2020); T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 (2d Cir. 2014); Mackey v. Bd. of Educ. of the Arlington Cent. Sch. Dist., 386 F.3d 158, 163 (2d Cir. 2004), citing Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982); M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 (S.D.N.Y. 2013); Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 (E.D.N.Y. Oct. 30, 2008); Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp.2d 449, 455-56 (S.D.N.Y. 2005). 4 Quoting Mackey, 386 F.3d at 163; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 (2d Cir. 2014) (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. v. Raelee, 96 F.3d 78, 83 (3d Cir. 1996); Letter to Baugh, 211 IDELR 481 (OSEP 1987).

Here, the parents alleged that the Student’s “then-current educational placement,” (see Mackey v. Bd. of Educ., 386 F.3d 158) is an unappealed FOFD dated June 17, 2019, (see Ex. I) and the Department did not appear to argue against pendency in that decision, or otherwise present evidence that there was an agreed upon IEP or some other more appropriate placement and program for pendency. The FOFD ordered the DOE to fund the cost of tuition at the Private School, transportation to and from the Private School, and the cost of an escort to and from the Private School. (See id. at I-20 to I-21) There being no dispute as to where pendency should lie,

I find that the June 17, 2019 FOFD constitutes pendency, and will order the DOE to implement that decision for the pendency of the matter before me, retroactive to the date of the DPC’s filing, September, 8, 2022.

II. Findings of Fact and Decision

Findings of Fact

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

The following is not in dispute. The May 13, 2022 meeting of the CSE did not result in an IEP being developed because the Student was declassified. (See Ex. A) This decision was based upon a DOE evaluation conducted of the Student before the CSE meeting. (See id. at Ex. A-2)

The parents secured their own neuropsychological evaluation of the Student, conducted between November 3, 2022 and December 8, 2022. (See Ex. G-1) The Neuropsychologist reaffirmed prior diagnoses of the Student, including attention-deficit/hyperactivity disorder (ADHD – combined presentation with associated executive functioning challenges), Specific Learning Disorders (reading, written expression, and mathematics), and unspecified anxiety disorder. (See id. at G-10) The Student’s cognitive functioning scores included verbal comprehension in the 50th percentile, processing speed in the 37th percentile, and working memory in the 50th percentile. (See id. at G-15) The Student is 13 years old and in 8th grade, and his functional grade equivalencies are: sentence composition (4.7); sentence combining (3.9); sentence building (5.4); decoding fluency (3.5); spelling (4.4); reading comprehension (5.2); math fluency (3.1); math concepts and applications (4.11); and math computation (6.7). (See id. at G-16)

Upon these findings, Neuropsychologist was of the opinion that “the results of [the Student’s] academic testing revealed a variable profile.” (Id. at G-9) For example, “his phonetic decoding skills are improving with supports” but “he evidences ongoing deficiencies in his fluency” and “in his capacity to engage in higher-order readding comprehension tasks, though he benefits from scaffolding and opportunities to review the text.” (Id.) The Student shows “Average to High Average potential for complex reasoning and comprehension of information” yet “[n]early all of his academic scores remain 3+ grade levels behind when adequately assessed, consistent with his history of learning disabilities.” (Id.) The Neuropsychologist found that, “[g]iven the lags in his academic skills development coupled with his executive functioning and social-emotional vulnerabilities, it is vital that [he] continue receiving appropriate learning supports to bolster his academic and social-emotional trajectory.” (Id.)

The Neuropsychologist recommended “a small and supportive setting with opportunities for individualized interactions as well as specialized learning supports and accommodations” with “emphasis . . . placed on executive functioning and study skills” as well as “sufficient structure, scaffolding, and positive reinforcement.” (Id. at G-10) The placement should provide “explicit instruction related to executive functioning skills, including planning and organizing, study skills, task initiation, and self-monitoring/metacognitive skills.” (See id. at G-12) There should be repetition, “complex instructions should be broken down” and “adults interacting with [the Student should] provide frequent checks for understanding . . . to promote independent management of attention.” (Id.)

Private School Psychologist

The Private School Psychologist testified as follows. The Private School “is an inclusive school that enrolls general education students as well as students with specific learning disabilities and special learning needs.” (Ex. H-2) The special education program is for students “who have language processing, reading, and writing disabilities, as well as attention and executive functioning difficulties.” (Id.) It “was developed to target the areas of concern with small class size, academic skill building, remediation, support and individualized instruction[.]” (Id.) Teachers who provide instruction to students in the program “have extensive training in special education and most either hold permanent NYS certification in General Education . . . Special Education, Literacy, School Psychology, or Speech and Language.” (See id. at H-3) Teachers “rely heavily on multi-sensory and multi-modal methods of instruction and” the “curriculum is informed by New York State learning standards.” (See id. at H-4)

The Student is in the 8th grade special education program in the Private School’s middle school for the 2022-2023 school year. (See id.) The Psychologist is familiar with the Student’s diagnoses and recommendations, and is the Student’s counselor and academic advisor. (See id. at H-4 to H-5). The Student “exhibits weaknesses in sustained attention, impulse control, and executive functioning” along with “a heightened level of anxiety, combined with weak frustration tolerance and emotion regulation.” (Id. at H-5) His “challenges profoundly impact his academic performance throughout the school day.” (Id.)

His teachers work with him in the classroom, as he “requires frequent check-ins throughout class in order to ensure that he is attending to the appropriate task” and “close 1:1 teacher support in order to stay engaged[.]” (Id. at H-6) The will “break[] assignments into smaller chunks, clarify[] the steps required for each segment of an assignment, and keep[] track of materials.” (Id.) Due to his anxiety issues, the Student “seeks out close teacher support during classwork,” and when “he is anxious . . . he has difficulty focusing on anything else and his attention is impacted even further.” (Id.) The Student “benefits from working with a counselor to practic[e] coping skills to calm down before he tackles a problem.” (Id. at H-6 to H-7)

For reading and writing, the Student attends an English language arts (ELA) class with a ratio of 12 students to two teachers (12:2), and three times per week, the Student is part of a 3:1 smaller group for additional ELA support, and other opportunities for 1:1 instruction. (See id. at H-10 to H-11) Since the beginning of the school year, he has been “able to keep up with the class content and engage in reading grade-level books.” (Id. at H-11) Overall, the Student “is making steady progress in ELA.” (Id.) For example, with respect to single word reading, he “improved from the 16th percentile in [the] fall 2022 . . . to the 45th percentile in January 2023.” (Id. at H-16) In addition, the Student “initiates written responses more independently now than he has in the past” and his “vocabulary has . . . improved through targeted word study and context clue reading strategies[.]” (Id. at H-17) This assessment is consistent with the Student’s First Trimester 2022-2023 report card, which shows that for ELA the student has achieved “Progressing with Extra Time & Support” in seven of the eight tracked areas, with the final area showing that the Student has achieved “Progressing within Grade Level.” (Ex. E-2 to E-3)

In math, the “[t]eachers scaffold [the Student’s] problem-solving in order to help him experience success with math[.]” (See Ex. H-12). He is part of a 10:1 class, with 1:1 push-in support “as needed[,]” and he is “exposed to grade level materials with supports built-in to bridge any gaps.” (Id.) With his supports in place, the Student has improved his math calculation scores “from the 32nd percentile in [the] fall 2022 . . . to the 45th percentile in January 2023. (Id. at H-16) According to the Student’s First Trimester 2022-2023 report card, he has achieved “Progressing within Grade Level” in all seven tracked areas. (See Ex. E-5) The Private School Psychologist also holds weekly 1:1 counseling sessions with the Student, where working on his executive functioning, time management, and prioritization has “help[ed him] feel much more relaxed and confident about his school work.” (See Ex. H-12)]

It is the Psychologist’s opinion that the Private School’s “program . . . is providing to [the Student] for the 2022-2023 school year is appropriate and successful at providing him an educational benefit this year.” (Id. at H-18) He benefits from “the small classes and intensive supports” and “from targeted exposure to typically developing peers and grade-level content.” (Id.) He “requires the scaffolded instruction” and “individualized attention and significant remediation in areas of weakness while still being challenged in areas of strength.” (Id.) In “receiving this support and programming, [the Student] has been able to make significant progress this school year.” (Id.)

Parent

The Parent testified as follows. The Student is a social, active [REDACTED] year old who is fully of energy. (See Tr. at pg. 17) Around the 1st grade, they noticed that he had challenges with reading, decoding and word recognition, and he needed tutoring and additional supports, in. (See id. at pg. 18) He was evaluated in the second grade and given additional assistance but they ultimately decided that the best place for the Student to learn was the Private School, which he entered in his 4th grade, and he has attended since. (See id.)

The Parent attended the IEP meeting on May 13, 2022, officials from the Private School were present, and she recalls sharing her observations of the Student’s needs and his progress at the Private School. (See id. at pg. 19) The DOE team members told her that they believed the Student no longer required services based upon an evaluation they conducted, and she “argued that the placement of . . . a regular gen[eral] ed[ucation] classroom would be an extreme jump from what kind of environment he had been recommended to be in for the last three years.” (See id. at pg. 20) She asked if there was any recommendation they could offer, and “[t]hey said, ‘okay, well, that is our recommendation, [he is] declassified.’” (See id. at pg. 21)

She send the CSE an email after the meeting on the same day, letting them know, “[a]s noted during the meeting, I strongly disagree with the determination to declassify, as do [the Student’s] teachers” and that if they “cannot resolve this matter . . . prior to the start of the upcoming school year, I will have no choice but to challenge this determination and maintain pendency in [the Student’s] last ordered program.” (Ex. F-1; see also Tr. at pg. 22) She never received a response to the email, or any response to her ten day notice (TDN) that was sent to the Department on August 22, 2022. (See Ex. B; see also Tr. at pp. 22 to 24) She recalls receiving an email that informed her in writing of the declassification but she was never offered any particular public school placement from the Department. (See id. at pp. 29 to 30)

After conversing with officials at the Private School, including its School Psychologist, the Parent finds the Private School to be the right program for the Student, as “the amount of support and the amount of growth and the small classroom sizes and what he’s getting in that environment is working for him” and “still [what he] requires . . . in order to be successful[.]” (Id. at pg. 24) The parents chose to keep the Student at the Private School because they “weren’t going to disrupt his progress that had been made,” as “he still requires quite a few of those things in order to be successful in the classroom.” (Id.) She added that the Student’s recent report card is “very reflective of how he’s feeling and how he is performing in the [Private School’s special education] program this year” as his “growth has been quite outstanding and [is] continuing” in an “upward movement.” (Id. at pg. 27; see also Ex. E)

The Parent confirmed that the signature on the parents’ contract with the Private School for tuition of $67,850.00 for the 2022-2023 school year is that of the Student’s father, her husband. (See Tr. at pp. 24 to 25; see also Ex. C-1 and C-3) The Student is provided transportation to and from the Private School by a bus that the Private School makes available at a cost of $6,000.00 for the school year. (See Tr. at pg. 25; see also Ex. J-2) She also confirmed that an invoice in evidence shows that the parents had paid $56,308.50 towards tuition and transportation to the Private School for the 2022-2023 school year, and she testified that another payment had been made since the invoice. (See id. at J-3 to J-4; see also Tr. at pp. 25 to 26)

Credibility

Upon my consideration of the evidence, including all admitted documents and the testimonies of the witnesses, I determine the following. In admitting the documents, I found them relevant, detailed, and consistent with the allegations in the DPC, as well representative of the facts for which they were offered. As for the witnesses’ credibility, I found no reason to doubt their veracity, with respect to the facts they related or to the opinions of the Private School Psychologist, and I credit all the testimony. The weight I afford exhibits and testimony will be reflected in the analysis.

Law and Analysis

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. (See NYS Educ. Law § 4404(1)(c)).

Prong I – Free and Appropriate Public Education The IDEA provides that children with disabilities are entitled to a FAPE. (See 20 U.S.C. § 1400 (d)(1)(A)) A FAPE consists of specialized education and related services designed to meet a disabled student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”). (See 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. (See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982))

Under the IDEA, a hearing officer “may find that a child did not receive a free appropriate public education” if the procedural defect or defects (i) “impeded the child's right to a free appropriate public education”; (ii) “significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents' child”; or (iii) “caused a deprivation of educational benefits.” (See 20 U.S.C. § 1415(f)(3)(E)(ii)) Not all procedural flaws “automatically require a finding of a denial of a FAPE. Only procedural inadequacies that cause substance harm to the child or [their] parents — meaning that they individually or cumulatively result in the loss of educational opportunity or seriously infringe on a parent's participation in the creation or formulation of the IEP . . . constitute a denial of FAPE.” (Matrejek v. Brewster Cent. School Dist., 471 F. Supp2d 415, 419 (S.D.N.Y. 2007))

Substantively, FAPE requires offering a child with a disability 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)) Where the threshold question is whether the student meets the criteria of a “child with a disability,” (see 20 U.S.C. § 1401(3)(A)^[5] and § 1414(d)(1)(A)(i) 6) the school district must demonstrate that this determination was properly made after an initial evaluation or reevaluation by the CSE. (See id. at § 1414(c)(1)(B) 7) Upon completion of the “assessment and other evaluation measures . . . the determination of whether the child is a child with a disability . . . and the[ir] educational needs . . . shall be made by [the CSE including] the parent of the child . . . and . . . a copy of the evaluation report and the documentation of determination of eligibility shall be given to the parent.” (Id. at § 1414(b)(4)) For a student who has already been determined eligible in the past to receive special education and/or services, the “local educational agency [school district] shall evaluate [the] child with a disability . . . before determining that the child is no longer a child with a disability.” (Id. at § 1414(c)(5)(A))

Here, the Parent alleged a number of procedural and substantive violations, including that “[t]he DOE’s evaluator performed very cursory assessments that failed to address all areas of suspected disability”; that after objecting to the evaluation and declassification recommendation,

6 “‘IEP’ means a written statement for each child with a disability . . .” (emphasis added).

7 “[O]n the basis of th[e] review, and input from the child’s parents, [the CSE shall] identify . . . whether the child is a child with a disability as defined in section 1401(3) . . . and the educational needs of the child, or in the case of a reevaluation of a child, whether the child continues to have such a disability and such educational needs[.]” the parents “request[ed] an independent educational evaluation (‘IEE’) at public expense” and the “CSE failed to meaningfully address th[is] request”; and the “IEP team was not duly constituted, as several required member were not present, including anyone . . . employed as a DOE classroom teacher, or with experience in the recommended setting”; “the CSE team . . . effectuat[ed] the recommendations of the recent report without . . . incorporation of the viewpoints of [the Student’s] parents or teachers.” (Ex. A-2 to A-3) Moreover, the Parent testified that he received only an email from DOE regarding the declassification of the Student after the IEP meeting. (See Tr. at pg. 29)

At a hearing, it is the Department’s burden to prove, by a preponderance of the credible evidence, that the Student was afforded a FAPE. (See N.Y. Educ. Law § 4404(1)(c)) I have credited the Parent’s evidence, including that the IEP team did not include a DOE teacher or someone with experience in the Student’s special education setting, which I take to mean that the reevaluation was not “conducted by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the student’s disability[,]” a requirement pursuant to 8 NYCRR § 200.4(b)(4). The Department did not participate, and therefore offered no evidence to explain who was present for the reevaluation. The DOE also failed to establish whether all members of a duly constituted IEP team were present. (See 20 U.S.C. § 1414(d)(1)(B)) While the Parent acknowledged that the Department conducted an evaluation before recommending declassification, the Department sent the Parent only a cursory notification via email, which I find is not the requisite “copy of the evaluation report and the documentation of determination of eligibility [that] shall be given to the parent.” (20 U.S.C. § 1414(b)(4)) Finally, there is no evidence that the DOE ever sent the parents a prior written notice of its determination, with the specific list of information mandated in 8 NYCRR § 200.5(a), and the Parent never received notification of a public-school location for the Student. (See Tr. at pg. 30) I find, on this record, that these failures constituted procedural defects that had the cumulative effect of denying the Student a FAPE. (See Matrejek v. Brewster Cent. School Dist., supra.)

Substantively, the Department was not present to defend its decision to declassify the Student. Where a school district has previously classified a student as one "with a disability," the CSE must review existing evaluation data on the child, including information provided by the parents, and current classroom-based assessments and observations from teachers and other related service providers. (See 20 U.S.C. § 1414(c)(1)(A); 8 NYCRR §§ 200.4(b)(5)(i), 200.4(b)(5)(ii); 200.4(b)(4)) Here, it is uncontested that the DOE “evaluator opined in the . . . report that [the Student’s] special education services should be terminated” even though “this evaluation did not include either a classroom observation” and the recommendation was made in the report without input from the IEP team, including the Parent. (Ex. A-2) In failing to present the evaluation or any witnesses, the Department could not explain – let alone prove by a preponderance of the evidence – that the decision to declassify was consistent with a FAPE. Moreover, the Parent offered the Neuropsychologist’s report, based upon evaluations conducted after the IEP meeting, which explained in detailed the basis for the continuing diagnoses of ADHD, an anxiety disorder, and three Specific Learning Disorders. (See Ex. G-1 to G-10) On this record, I conclude that the Department did not meets it substantive obligation to prove a FAPE, and Prong 1 is decided in the Parent’s favor.

Prong II – Appropriateness of Parent’s Placement

A private school placement must be "proper under the Act." (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); see also Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985)) This means that the private school must offer an educational program which met 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 (quoting Frank G., 459 F.3d at 364-65))

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.'" (Id.) That said, parents need not show that their chosen placement meets all of the FAPE requirements as would a school district, but rather a searching inquiry into the totality of the qualities of the private program that determines its appropriateness. In fact, 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.” (Id.)

The Parent here chose to place the Student with the Private School for the 2022-2023 school year. The Private School has created a program specifically designed for students who, like the Student, “have language processing, reading, and writing disabilities, as well as attention and executive functioning difficulties.” (Ex. H-2) The Private School offers “small class size, academic skill building, remediation, support and individualized instruction[.]” (Id.) Teachers who provide instruction to students in the program “have extensive training in special education and most either hold permanent NYS certification in General Education . . . Special Education, Literacy, School Psychology, or Speech and Language[,]” (see id. at H-3) and they “rely heavily on multi-sensory and multi-modal methods of instruction[.]” (See id. at H-4) They provide “frequent check-ins throughout class in order to ensure that he is attending to the appropriate task” and “close 1:1 teacher support in order to stay engaged[.]” (Id. at H-6) The will “break[] assignments into smaller chunks, clarify[] the steps required for each segment of an assignment, and keep[] track of materials.” (Id.) The program is thus consistent with the Neuropsychologist’s recommendation that the Student learn in “a small and supportive setting with opportunities for individualized interactions . . . and accommodations” with “emphasis . . . placed on executive functioning” as well as “sufficient structure, scaffolding, and positive reinforcement.” (Ex. G-10)

For reading and writing, the Student attends an English language arts (ELA) class with a ratio of 12 students to two teachers (12:2), and three times per week, the Student is part of a 3:1 smaller group for additional ELA support, and other opportunities for 1:1 instruction. (See id. at H-10 to H-11) In math, the Student is part of a 10:1 class, with 1:1 push-in support “as needed[,]” and he is “exposed to grade level materials with supports built-in to bridge any gaps.” (Id. at H-12) The Student has shown “steady progress[,]” including an “improve[ment in single word reading] from the 16th percentile in [the] fall 2022 . . . to the 45th percentile in January 2023” and improving math calculations “from the 32nd percentile in [the] fall 2022 . . . to the 45th percentile in January 2023. (Id. at H-16) According to the Student’s First Trimester 2022-2023 report card, he has achieved “Progressing within Grade Level” in all seven tracked areas. (See Ex. E-5) The Private School Psychologist also holds weekly 1:1 counseling sessions with the Student, where working on his executive functioning, time management, and prioritization has “help[ed him] feel much more relaxed and confident about his school work.” (See Ex. H-12)]

“[E]vidence of . . . progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA.” (Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 (6th Cir. 2003)) It is, however, relevant to the inquiry as to whether “the placement provides educational instruction specially designed to meet the unique needs of a [disabled] child, supported by such services as are necessary to permit the child to benefit from instruction.” (Gagliardo, 489 F.3d at 112) Given the degree to which the Student’s diagnoses have caused him to struggle when learning and to be able to learn, and the way in which the program addresses the Student’s deficits and needs, as well as the way it has demonstrably provided him more access to an education, the Private School clearly meets this standard. I also note that the Department offered nothing to rebut the Parent’s evidence of appropriateness of their chosen program. On this record, therefore, I conclude that the Private School is appropriate to meet the Student’s needs, (see A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G., 459 F.3d 356 at 364).) and that Prong 2 of the Burlington/Carter analysis is satisfied.

Prong III – Equities

Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." (Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009)) In making that determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. (See See 20 U.S.C. § 1412(a)(10)(C)(iii)(III); see also E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014), and L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 (2d Cir. Jan. 19, 2017))

Also “[i]mportant to the equitable considerations is whether the parents obstructed or were uncooperative in the school district’s efforts to meet its obligations under the IDEA.” (C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014)) Equities have favored parents when they cooperate in good faith at all times with the DOE, including participating in the CSE meeting, visiting proposed placements, and notifying the district of unilateral placement. (See Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F. Supp.2d 403, 419 (S.D.N.Y. 2011))

Here, the Parent cooperated with the CSE at all stages, including making the Student available for the DOE evaluation and participating at the CSE meeting. After voicing his objections to the declassification at the meeting, he submitted a timely TDN to the Department, on August 22, 2022. (Ex. F-1; see also Tr. at pg. 22; Ex. B) The TDN included the necessary information, including the Parent’s concerns with the DOE’s decision to declassify, and notice of the Parent’s intention to unilaterally place the Student at the Private School. Id. The Parent never received a response or a placement recommendation. (See Tr. at pg. 30) There is also no evidence of any fraud or collusion, and the Department did not claim or present any evidence regarding the reasonableness of the tuition sought. I note as well that the contract the Parent entered into with the Private School released the parents from the “contract without additional financial penalty or continuing responsibility for tuition payments . . . should [they] choose to accept a school placement recommended by the New York City Department of Education in a public school or a New York State approved provider of special education . . . on or before September 30th, 2022.” (Ex. C-1) On this record, I conclude that the balance of the equities clearly weighs towards the Parent and not the DOE. Thus, all three Burlington/Carter Prongs are decided in the Parent’s favor, and an award is warranted in this case. Remedies

Tuition Funding

By way of relief, Parent seeks reimbursement for their Private School tuition costs to date, and to have the balance of unpaid tuition sent directly to the Private School. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. (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) I therefore find that the portion of the tuition that the Parent has not yet paid be funded directly by the Department to the Private School.

Transportation

The IDEA requires that a school district must provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’ . . . even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport.” (Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir. 1997) (internal citation omitted)) Transportation may be deemed necessary “if in its absence a disabled child in private school would be denied ‘a genuine opportunity for equitable participation in [a special education program]’, . . . or special education program benefits “comparable in quality, scope, and opportunity for participation . . . [to those provided for] students enrolled in public schools.’” (Id. at 1375) In addition, State law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” (Education Law §§ 4401(1), 4401(2), and 4402(4)(a); see also 8 NYCRR § 200.1(ww) (emphasis added))

Here, the Parent has been making payments towards and annual fee of $6,000.00 charged for transportation services arranged by the Private School. (See Ex. J-2 to J-4) Given that the Department would be responsible for publicly-funded transportation had the Student been able to attend an appropriate public placement, I find the transportation request and the amount sought reasonable.

Order

Upon the foregoing, it is hereby, Ordered, retroactive to the filing of the DPC, September 8, 2022, that the New York City Department of Education shall provide, during the pendency of this matter, and for the 2022-2023 school year, the following program and related services:

• Tuition incurred at the Private School; • To the extent used during the pendency of this matter, the cost of a Metro Card and an escort to and from the Private School, and the cost of transportation otherwise; and it is further, Ordered, that the New York City Department of Education shall make payment to and reimburse the parents, within 30 days upon proof of payment, for that portion of the aggregate tuition obligation of $67,850.00 for the 2022-2023 school year that the parents have already paid, and for the unpaid balance of the tuition obligation, the Department of Education shall make payment, within 30 days, directly to the Private School; and it is further, Ordered, that the New York City Department of Education shall make payment to and reimburse the parents, within 30 days upon proof of payment, for that portion of the aggregate transportation cost of $6,000.00 for the 2022-2023 school year that the parents have already paid, and for the unpaid balance of the tuition obligation, the Department of Education shall make payment, within 30 days, directly to the Private School; and it is further,

So Ordered.

Dated: February 16, 2023

Richard J. Zeitler, Jr. (signed electronically) 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.

DISTRICT EVIDENCE

PARENT EVIDENCE

A. Request for Impartial Hearing 09/08/2022 4 pages

B. Notice of Unilateral Placement 08/22/2022 3 pages

C. [REDACTED] Enrollment Contract 02/08/2022 3 pages

D. [REDACTED] Schedule 2022 – 2023 2 pages

E. [REDACTED] Trimester 1 Report Card 2022 – 2023 8 pages

F. Email from [REDACTED] 05/13/2022 1 page

G. Neuropsychological Evaluation 12/03 – 12/08/2022 17 pages

H. Affidavit of [REDACTED], Ph.D. 01/11/2023 19 pages

I. /17/2019 23 pages

J. [REDACTED] Payment Documentation Various 4 pages

IHO EXHIBITS

I. Order of Extension 11/30/2022 1 page IHO

II. Order of Extension 2 12/20/2022 1 page IHO

III. Order of Extension 3 01/12/2023 1 page IHO

Footnotes

[1] Before the recording began, a Department of Education attorney appeared to request an adjournment. This was the first interaction I had with anyone from the Department after multiple notifications to the Department of every step of the process leading to the hearing. When I informed the attorney that my expectation was that the hearing was to go forward, the attorney argued no longer for an adjournment and chose to leave the proceeding rather than participate. Having made that choice, I determined that the Department was not participating, and the merits hearing was conducted.

[2] The Transcript of this hearing will be denoted as “Tr.”

[5] “The term ‘child with a disability’ means a child – (i) with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this chapter as “emotional disturbance”), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, needs special education and related services.