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Special Education Law
DECISIONParent PrevailedIHO Case No. 238093

New York City Department of Education, Impartial Hearing Decision

February 7, 2023·Jean Marie Brescia·New York City Department of Education

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

CASE NUMBER: 238093

FINDINGS OF FACT AND DECISION

Case Number: 238093

Student’s Name: REDACTED REDACTED

School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: September 14, 2022

Date(s) of Hearing: November 22, 2022

December 6, 2022

January 4, 2023

January 6, 2023

Actual Record Closed Date: January 24, 2023

Date of Decision: February 7, 2023

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

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON November 22, 2022

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON December 6, 2022

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON January 4, 2023

For the Student:

REDACTED REDACTED, Esq.

REDACTED REDACTED, Parent

REDACTED REDACTED, Head of School, REDACTED REDACTED of Brooklyn

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON January 6, 2023

For the Student:

REDACTED REDACTED, Esq.

REDACTED REDACTED, Parent

For the Department of Education:

None

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about September 14, 2022. Ex. A.[1] On November 15, 2022, I was appointed by the New York City Department of Education to hear this matter. Parent alleges that the Department failed to offer a free appropriate public education to REDACTED and seeks reimbursement for tuition for REDACTED at REDACTED REDACTED of Brooklyn (“REDACTED”) and transportation expenses for the 2022-2023 school year. Ex. A at 1, 3.

I conducted a prehearing conference on November 22, 2022. Counsel for REDACTED’s parents appeared; there was no appearance on behalf of the Department. Tr. 3. At the prehearing conference, counsel for REDACTED’s parents clarified the relief requested and the hearing was scheduled for December 6, 2022 and January 4, 2023. Tr. 5-6.

On December 6, counsel for REDACTED’s parents appeared; no one appeared on behalf of the Department. The hearing proceeded with an opening statement on behalf of REDACTED’s parent. Tr. 10-13. The hearing continued on January 4 and was concluded on January 6. The Department continued to fail to appear, despite the Impartial Hearing Office sending hearing notices to the Department and reminder emails from the Hearing Officer. REDACTED’s Head of School and REDACTED’s parent testified; exhibits A through M were admitted in evidence.

The Parent requested extensions of the compliance date, and written Orders of Extension was issued on November 22 and December 6, 2022, and January 6, 2023. The reasons for granting the extensions are set forth in the Orders.

The record was closed on January 24, upon the Hearing Officer’s receipt and review of the transcript of the final day of the hearing.

JURISDICTION

The due process hearing was held, and a decision in this matter is now rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. § 200.5 et seq.

REDACTED’s mother consented to the hearing proceeding by videoconference and to the transmission of this decision via email.

ISSUES

REDACTED’s parent requests funding for tuition and related services costs at REDACTED, reimbursement for monies paid and direct payment for tuition due and owing. At the hearing, the Department did not defend its actions with respect to evaluating or developing an IEP for REDACTED. The issues to be resolved are therefore:

  • • When was REDACTED entitled to receive special education and services from the Department?
  • • Was REDACTED an appropriate unilateral parental placement for REDACTED for the 2022-2023 school year?
  • • Does the balance of the equities favor REDACTED’s parents?
  • • Should relief, if any, be in the form of reimbursement or direct payment (or a combination of types of payment) to REDACTED?

FINDINGS OF FACT

  • • REDACTED is an REDACTED year-old boy whose disability, for the purposes of the IDEA, is classified as learning disabled. He attends REDACTED grade in REDACTED’s REDACTED REDACTED. Exs. A, J at 1, L at ⁋ 12; Tr. 29.
  • • REDACTED has been diagnosed with REDACTED, REDACTED, and REDACTED. Exs. D at 2, 7; M at 23.
  • • REDACTED experiences difficulties with attention, impulsivity, executive functioning, regulating his emotions, navigating social situations appropriately, and communication skills. Exs. D at 1-5; L at ⁋ 3; M at 2, 3-4, 11-13; Tr. 38. He struggles with phonemic awareness, reading comprehension, grammar, writing mechanics, punctuation and spelling. Tr. 38-39.
  • • REDACTED attended the Department’s REDACTED from kindergarten through REDACTED grade. Exs. L at ⁋ 2; M at 3.
  • • REDACTED struggled in school, and his parents obtained after-school tutoring and an evaluation conducted by a psychologist. Exs. L at ⁋ 4; M; Tr. 77-79.
  • • The psychologist who conducted the evaluation recommended that REDACTED, in order to address his learning difficulties and executive functioning deficits, needed a small, supportive classroom environment with a special education teacher who could provide small group instruction, particularly for writing, and social-emotional and executive functioning supports in the classroom. Ex. M at 23-24.
  • • In September 2021, REDACTED’s parents enrolled REDACTED at REDACTED, a general education non-public school, for REDACTED grade and continued to provide him with at-home tutoring after school.[2] Ex. L at ⁋ 5; Tr. 34, 79-80.
  • • REDACTED continued to struggle with attention and focus, social-emotional functioning, and academic progress. Tr. 34-35, 80.
  • • At the end of the 2021-2022 school year, REDACTED’s educators recommended that REDACTED be evaluated for eligibility for special education and services. Ex. L at ⁋ 6.
  • • On May 10, 2022, REDACTED’s mother sent a letter to the CSE requesting that the CSE evaluate REDACTED for eligibility for special education and services. Ex. C.
  • • In May 2022, REDACTED’s mother also secured an updated psychoeducational evaluation of REDACTED. Ex. D; Tr. 81.
  • • The psychologist who conducted the updated evaluation continued to recommend that REDACTED, in order to address his learning difficulties and executive functioning deficits, needed a small, supportive classroom environment with a special education teacher who could provide small group instruction, particularly for writing, and social-emotional and executive functioning supports in the classroom. Exs. D at 7; M at 23-24; Tr. 81.
  • • On May 27, REDACTED’s mother met with a CSE social worker, signed consent forms and provided the updated psychoeducational evaluation to the social worker. Ex. L at ⁋ 7; see also Tr. 83, 85, 97.
  • • On June 22, REDACTED’s mother brought REDACTED to a speech and language evaluation arranged by the CSE. Ex. L at ⁋ 7; Tr. 83.
  • • REDACTED’s mother, through counsel, filed a ten-day notice with the Department on August 24, 2022. Ex. B. In this letter, REDACTED’s mother reminded the CSE that it had not yet completed the initial evaluation of REDACTED, informed the Department that REDACTED had been denied a FAPE, and notified the Department that REDACTED would be placed at REDACTED. Ex. B at 1-2.
  • • On or about September 6, REDACTED’s mother brought REDACTED to an occupational therapy evaluation arranged by the CSE. Ex. L at ⁋ 9.
  • • On September 12, 2022, REDACTED’s parents entered into an enrollment contract with REDACTED for the 2022-2023 school year. The total amount of the tuition was $54,616.68. Ex. F. The contract obligates REDACTED’s parents to pay this amount. Ex. F at 1.
  • • In September 2022, REDACTED entered REDACTED’s REDACTED REDACTED. REDACTED REDACTED is a special education program for students with learning disabilities. It is integrated within REDACTED. Exs. E, J at 1; Tr. 33-34.
  • • REDACTED’s parents participated in a CSE meeting conducted on September 23, 2022. Ex. L at ⁋ 11.
  • • The CSE determined that REDACTED was eligible for special education and services, classified his disability as learning disabled, and recommended that he attend a general education classroom with SETSS (three periods per week) and receive the related services of speech and language therapy and counseling. Ex. L at ⁋ 12.
  • • REDACTED’s parents objected to the program recommendations as insufficiently supportive of REDACTED and informed the CSE that REDACTED would not make progress. Ex. L at ⁋ 13; Tr. 84-86.
  • • REDACTED’s parents received a copy of REDACTED’s IEP in early October. Ex. L at ⁋ 14.
  • • REDACTED is a kindergarten through twelfth grade school enrolling 175 students. Class sizes for middle school students include approximately ten to twelve students. Tr. 30.
  • • REDACTED REDACTED provides related services and specialized instruction, supports, modifications and accommodations, including 1:1 and small group instruction, within REDACTED’s mainstream environment, for students who need such services and instruction. Tr. 31-33.
  • • The students in REDACTED REDACTED experience ADHD, autism, learning disabilities and/or speech and language difficulties. Tr. 33.
  • • REDACTED utilizes the New York State Common Core curriculum. Tr. 40.
  • • REDACTED’s school schedule for the 2022-2023 school year includes: math, science, REDACTED REDACTED support and pull-outs, English, physical education, social studies, art, music, Spanish, and the related services of counseling, speech therapy, and social skills group. Ex. G.
  • • The schedule also lists “3:20-4:05 – Tutorials – REDACTED REDACTED – 4:1 Daily.” Ex. G.
  • • The core academic classes include nine students with a classroom teacher; specials such as art and music can include up to thirteen students. Tr. 35-36., 42.
  • • REDACTED needs small classes in which his attentional and focusing challenges can be addressed. Tr. 55-56
  • • Where REDACTED REDACTED is listed on the schedule with a class, then a special education teacher pushes into that class (including one period per week in each of the following subjects: math, science, English and social studies). There are two teachers (general education and special education) in the classroom during these times. Tr. 36, 43-44; Ex. G at 1.
  • • When REDACTED REDACTED is listed on the schedule separately, then the special education teacher is pulling REDACTED out of class (four periods per week) for small group or1:1 instruction. Tr. 43: Ex. G at 1.
  • • In the classroom, in order to attend and to make progress academically, REDACTED needs, and his teachers at REDACTED provide, differentiated instruction, material broken down, pre-teaching and review of material, small group and 1:1 instruction, 1:1 directions, graphic organizers and checklists, breaks, strategies for engaging appropriately with his peers, and much teacher support to organize and sequence writing skills to produce written work. Tr. 38-41, 54-56; Ex. J.
  • • This school year, REDACTED’s REDACTED REDACTED teachers have been targeting REDACTED’s reading comprehension and writing skills, working on reading and writing skill building (such as read aloud, phonics, sight words, spelling, increasing reading time, grammar, sentence starters, using organizers, and mechanics and components of the writing process) as well as Core subject content material. Tr. 44-46; Ex. J.
  • • In his classes and in counseling, his teachers and counselor focus on communication skills, including turn taking in conversations, waiting for a response, and remaining “on point.” Tr. 46-47; Ex. J.
  • • REDACTED receives counseling three times per week, one time individually and two social skills groups. Tr. 49. In addition to the topics referenced in the above paragraph, the counselor works with REDACTED on remaining on task and attending, frustration tolerance, and impulse control. Tr. 49.
  • • In speech therapy, the therapist works with REDACTED on expressive language, appropriate use of language, reading comprehension and writing. Tr. 28.
  • • At the end of each school day, REDACTED is scheduled for a 45 minute REDACTED REDACTED “Tutorial.” Ex. G. The tutorial is an “additional period” of “class instruction” for students in REDACTED REDACTED.” Tr. 51. Students have the opportunity to work on subject content and skills that might have been taught during the regular school day. Tr. 59.
  • • The REDACTED head of school explained, in her testimony, that REDACTED needed the extra instruction provided during the tutorial in order to reinforce instruction provided during the school day, to work on “different skills,” and to “not feel[] like he may be rushed” during the school day and “may have missed something.” Tr. 59.
  • • REDACTED has made progress, to date, during the 2022-2023 school year (tr. 54; Ex. J):
  • • Attention: REDACTED benefited from redirection and feedback from his teachers and improved his attention and focus and reduced his distractibility;
  • • His classroom behavior improved and his impulsivity in the classroom has reduced;
  • • In reading, REDACTED improved his reading comprehension as demonstrated by responding to guided questions;
  • • Written expression; REDACTED learned to write full sentences in response to reading comprehension questions and learned to write well-developed and organized paragraphs;
  • • In math, REDACTED learned problem-solving strategies;
  • • Communication skills: he improved his social skills and engagement with his peers and improved his conversation skills with peers and adults.
  • • As of the time of the hearing, REDACTED’s parents had paid $4,500.00 of the REDACTED tuition for 2022-2023 and had an outstanding balance of $50,116.68. Ex. I.
  • • The family’s financial circumstances do not, at this time and in light of the documentation in the record, demonstrate an inability to pay REDACTED’s tuition. Ex. K.

CONCLUSIONS OF LAW

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982).

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

The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012); Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. REDACTED F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E., 694 F.3d at 189-90. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

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

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

When was REDACTED entitled to a FAPE?

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

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

The IDEA’s comprehensive procedural framework includes procedures to ensure that students suspected of having disabilities are evaluated and, if eligible, are provided with a FAPE in a timely manner. See Forest Grove School District v. T.A., 557 U.S. 230 (2009); 20 U.S.C §§ 1400 et seq. As in the instant case, parents may refer their child to a school district for an “initial” evaluation to determine their child’s eligibility for special education and services. 8 N.Y.C. R.R. § 200.4(a)(1)(i). By her letter sent on May 10, REDACTED’s mother requested that the Department evaluate REDACTED, thus requiring the Department to “initiate a referral and promptly request parental consent to evaluate the student....” 8 N.Y.C. R.R. § 200.4(a). The Department had ten “school days” to request REDACTED’s mother consent to conduct an evaluation of REDACTED. 8 N.Y.C. R.R. § 200.4(a)(2)(iv)(a). REDACTED’s mother consented to the evaluation on May 27. The Department was then required to conduct the evaluation of REDACTED within 60 days of receiving parental consent. See 8 N.Y.C. R.R. § 200.4(b)(1). The Department did not complete its evaluation of REDACTED within the required 60 days from parental consent to evaluate. See paragraph 14 above.

Furthermore, the Department was required, within 60 school days from the date of consent, to determine REDACTED’s eligibility for special education, develop an IEP and “arrange for the appropriate special education programs and services” for REDACTED. 8 N.Y.C. R.R. § 200.4(d) & (e).

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

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

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

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

Sixty “school days” from May 27 was August 27 (last day of school was June 27; count resumes on July 1, skipping July 4).[3] As a result, the Department was clearly responsible for offering a FAPE to REDACTED by the beginning of the 2022-2023 school year—in other words, in the context of this case, completing its evaluation, determining eligibility, and developing an IEP for REDACTED before school started in September 2022.

Is REDACTED an appropriate placement for REDACTED?

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

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs.... To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child; supported by such services as are necessary to permit the child to benefit from instruction.”

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

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

The preponderance of the evidence establishes that REDACTED’s program provides REDACTED with an educational program in which his constellation of identified special education needs are addressed. In particular, the record is clear that REDACTED needs the small classes; small group and individual instruction; differentiated instruction; teacher support to address his attentional, impulsivity, social and communication challenges; and related services of speech therapy and counseling. REDACTED provides REDACTED with such instruction, modifications, supports, and services. See paragraphs 24 through 39, above. Furthermore, REDACTED had made progress to date, in light of his unique set of challenges and circumstances, at REDACTED during the 2022-2023 school year. See paragraph 40 above.

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

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

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

With respect to the third Burlington criterion, whether equitable considerations support REDACTED’s parents’ claims, the evidence establishes that REDACTED’s parents cooperated with the Department by enrolling REDACTED in the Department’s schools in prior school years, bringing REDACTED to CSE evaluation appointment, attending the IEP meeting, participating in that meeting and sharing their concerns with Department personnel, writing to the Department about their concerns, and providing the requisite statutory notice. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district).

REDACTED’s parents seek direct payment to REDACTED for a much of the tuition for the 2022-2023 school year. As the federal courts have made clear, such direct payment is appropriate when (a) equitable considerations favor an award of tuition and/or services costs, and (b) the student’s parents, though legally obligated to make payments for tuition and/or services costs, have not made such payments because they do not have the financial ability to do so. Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998); Mr. and Mrs. A. v. New York City Department of Education, 769 F. Supp. 2d 403, 428-429 (S.D.N.Y. 2011). REDACTED’s parents have demonstrated that they have an obligation to pay tuition, but they have not demonstrated their inability to pay the tuition and then seek reimbursement. As a result, a prospective award is not appropriate for that portion of the REDACTED tuition that REDACTED’s parents have not yet paid.

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

REDACTED’s parents did not pursue the claim for transportation expenses at the hearing. As a result, there are no findings or relief with respect to transportation.

ORDER

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

The Department of Education shall reimburse REDACTED’s parents for tuition paid to REDACTED REDACTED for REDACTED’s tuition and related services costs for the 2022-2023 school year. The amount of reimbursement for the 2022-2023 school year shall not exceed $54,616.68.

SO ORDERED.

DATED: February 7, 2023

Jean Marie Brescia, Esq.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENTS’ EXHIBITS

NO.

DATE

NAME OF DOCUMENT

# pp.

A 09/13/22 Impartial Hearing Request 4

B 08/24/22 Ten Day Notice 2

C 05/09/22 Initial Referral Letter (Mailing Receipt Attached) 2

D 05/13/22 Updated Psychoeducational Evaluation 12

E UNDATED REDACTED REDACTED Program Description 8

F 09/12/22 Enrollment Contract 4

G 2022-2023 REDACTED Class Schedule 1

H 12/16/22 REDACTED Attendance Report 1

I 12/06/22 REDACTED Tuition Affidavit 1

J December 2022 REDACTED Progress Report 8

K 04/09/22 1040 Parent’s Income Tax 2021 2

L 01/05/22 Affidavit of REDACTED an 6

M

07/17/21

Initial Psychoeducational Evaluation

31

Footnotes

[1] Exhibits shall be referred to as follows: Parents’ Exhibits are designated by a letter; the Department’s Exhibits are designated by a number; and Impartial Hearing Officer’s Exhibits are designated as “IHO.”

[2] REDACTED’s parents have not sought reimbursement from the Department for REDACTED’s 2021-2022 school year program or for any after-school tutoring during the 2021-2022 school year or prior school years. Ex. A; Tr. 93, 96.

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