New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 238869

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 12/05/2022

12/12/2022 Pendency Hearing

12/19/2022

Actual Record Close Date: 12/31/2022

Decision Date: 01/04/2023

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 12/05/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

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

NAMES AND TITLES OF PERSONS WHO APPEARED ON 12/12/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

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

NAMES AND TITLES OF PERSONS WHO APPEARED ON 12/19/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

[REDACTED], Mother

[REDACTED], CSE Coordinator,

[REDACTED]

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

DOCUMENTS ENTERED INTO THE RECORD

PARENT DOCUMENTS

Entered 12/05/2022

A Due Process Complaint (DPC), 09/20/2022, 17 pages

Entered 12/19/2022

B Findings of fact and decision from 220303, 8/4/22, 22 pages

C Email to [REDACTED], 2/10/22, four pages

D Ten-day notice, 8/17/22, five pages

E Email to [REDACTED], 8/29/22, three pages

F Email to [REDACTED], 9/2/22, six pages

G Response to ten-day notice, 9/7/22, one page

H DOE acknowledgement of receiving impartial hearing request, 10/24/22, one page

I Email to [REDACTED] regarding pendency, 10/24/22, two pages

J Email from DOE advising of appointment of an impartial hearing officer, 11/30/22, one page

K Email from Ms. [REDACTED], 12/1/22, one page

L [REDACTED] School description, unidentified date, two pages

M '22/'23 weekly schedule, one page

N Attendance report, 11/30/22, one page

O Tuition invoice with '22/'23 enrollment agreement and financial aid letter, 9/8/22, eight pages

P Invoice, 10/15/22, two pages

Q 2021 1040 tax form, six pages

R Independent educational evaluation report, 1/1/21, 29 pages

S Speech evaluation, 5/21/21, ten pages

T Midyear report, 1/22, 18 pages

U Year-end report, 6/22, 15 pages

V Email regarding DOE's pendency form, 12/7/22, two pages

W Email regarding DOE's response to the impartial hearing request, 12/9/22, seven pages

X Unused

Y Affidavit of parent, 12/8/22, eight pages

Z Affidavit of [REDACTED], 12/12/22, 14 pages

HEARING OFFICER DOCUMENTS

Entered 12/05/2022

I Notice of appointment, 11/30/2022, four pages

II Notice of Appearance, 12/01/2022, 1 page

Entered 12/12/2022

III Pendency Agreement, 12/07/2022, 2 pages

DEPARTMENT OF EDUCATION

Entered 12/19/2022

EXHIBIT

DATE

NAME

PAGES

12/23/2021

Notice of IEP Meeting

3

01/31/2022

IEP

32

01/31/2022

IEP Attendance Page

1

01/31/2022

IEP Meeting Minutes

8

05/21/2021

Speech and Language Evaluation

10

02/08/2022

School Location Letter

3

02/08/2022

Prior Written Notice

4

INTRODUCTION

On 11/30/2022, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Hearing commenced on 12/05/2022, to allow the DOE an opportunity to present a defense to the allegations contained in the DPC.

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

THE POSITION OF EACH PARTY

Parent Attorney set forth the basic Parent position, via DPC. (Ex A)

Parent allegations include:

• • Student has been identified as having a disability, by the DOE;
• • Independent Educational Evaluation revealed Student diagnoses that included:

Attention Deficit Hyperactivity Disorder (“ADHD”) – Combined Presentation, Specific Learning Disorder with impairment in Reading (which is often referred to as [REDACTED]), and Language Disorder (Ex A 3);

• • For the 21-22 school year, an Impartial Hearing resulted in the DOE funding Student placement at the [REDACTED] School (Unilateral Placement – UP) (Ex A 3);
• • An Individualized Education Program (IEP) meeting was held, on01/31/2022, to review Student program;
• • Parent alleges the IEP meeting discounted the IEE previously obtained, and the position of the UP staff, who attended the meeting (Ex A 3);
• • The Parent believes the IEP developed did not meet the needs of the Student, which include:
• • a placement in a small class with a high teacher-to-student ratio
• • small group instruction
• • throughout the school day support for her issues with organization and executive functioning
• • frequent and constant repetition so she can process and retain information
• • a slower pace than her typically developing peers (Ex A 4);
• • Parent believes Student, in addition to the diagnoses: “presents with difficulties and delays in the areas of executive functioning and organization, self-regulation, self-confidence when it comes to her performance in school, sensory processing, and language processing. In addition to constant repetition and a small, supportive, but controlled learning environment, she requires a significant amount of individualized attention and support because she becomes overwhelmed when presented with too much input or information at once.” (Ex A 4);
• • The DOE failed to provide Student with an “IEP and school placement that could address her disability-related learning needs during the 2022- 2023 school year and thus, the DOE denied [Student] a FAPE. Instead of developing and an IEP and school placement that could address [Student’s] significant learning needs, the DOE merely tried to force to return to a program…that had previously failed her and that an independent neuropsychologist…determined was not appropriate.” (Ex A 4)
• • The DOE did not provide a timely notice of placement for the 22-23 school year (Ex A 4-5);
• • The recommended DOE program was not appropriate (Ex A 6)
• • The IEP goals were insufficient and inappropriate (Ex A 7-8);
• • The IEP recommendations were pre-determined (Ex A 8);
• • The UP is appropriate (Ex A 12);
• • Equitable considerations support the Parents (Ex A 12);
• • Parents are entitled to sought after relief. (Ex A 13)

The Parent, presently, seeks relief that includes:

- requiring the district to reimburse the parents for any monies the have paid [REDACTED] School in connection with Students enrollment and attendance during the 2022-2023 school year;

- requiring the DOE to directly pay the balance of any monies that the parents may still owe the UP in connection with the 2022-2023 school year;

- requiring the DOE to provide Student with appropriate round-trip transportation between her home and the UP for the duration of the 2022-2023 school year;

- requiring the DOE to compensate the parents for any and all costs associated with any failure to provide transportation to Student during the 2022-2023 school year including any costs associated with having to miss work to get [Student] to and from school; (Ex A 15)

At Hearing, of 12/05/2022, the DOE Representative appeared unclear as to the purpose of the Hearing date. (T 5-7)

The DOE Representative stated the DOE would defend against the allegations contained in the DPC but was not prepared to go forward at the present time. (T 7)

The DOE lacked any basis upon which to grant an adjournment, and the case was then set for a Pendency Hearing, as requested by the Parent, for 12/12/2022. (T 11-12)

At Hearing, of 12/12/2022, the Parties introduced a Pendency Agreement, which resolved the need for a Pendency Hearing and Order. (IHO Ex III)

Hearing then continued, on 12/19/2022.

Parent Attorney relies upon Documentary Evidence to support the Parent’s allegations, and the sought after relief.

Parent Attorney clarified that the Student’s UP tuition was reduced, as indicated in Exhibits O and V, from $[REDACTED]to $[REDACTED]. (T 46-17)

The Evidence, as considered below, is found to be credible and supportive of the Parent’s case:

[REDACTED], CSE Coordinator, [REDACTED] School Witness provided Testimony via Affidavit. (Ex Z)

Witness provided Testimony, at Hearing of 12/19/2022, which included:

• • Student is attending the UP for the 22-23 school year (T 44)

The DOE evidence submitted services to support the Parent allegations:

• • Evidence shows the Student is identified as one entitled to special education services; classified as Other Health Impairment (Ex 2-1); recommended to Integrated Co-Teaching (ICT) class with Special Education Teacher Support Services (SETSS), Counseling, Occupational Therapy, and Speech Language Therapy (Ex 2-24 & 2-25);
• • Parent raises concerns with Student progress, and recommendations made for a smaller class size (Ex 4-4)
• • Evaluation shows Student need for Speech Language Services (Ex 5); and
• • School Location Letter, of 02/08/2022, shows recommended placement in a Public School, to which Parent raises concerns (Ex 6)

B Findings of fact and decision from 220303, 8/4/22, 22 pages

Finding that the DOE denied the Student a FAPE, for the 21-22 school year, and directed DOE funding of Student Tuition for UP. (Ex B 15)

C Email to [REDACTED], 2/10/22, four pages

Parent, through Attorney, notifies the DOE of concerns related to the IEP of 01/31/2022.

Parent notifies the DOE that if concerns are not addressed, then Student enrolment will continue, at the UP, and DOE funding will be sought. (Ex C 3)

D Ten-day notice, 8/17/22, five pages

Parent notifies the DOE of objection to the recent IEP, intent to continue Student enrolment at the UP, for the 22-23 school year, and seek DOE funding.

E Email to [REDACTED], 8/29/22, three pages

Parent notifies the DOE of objection to the recent IEP, intent to continue Student enrolment at the UP, for the 22-23 school year, and seek DOE funding.

F Email to [REDACTED], 9/2/22, six pages

Parent notifies the DOE of objection to the recent IEP, intent to continue Student enrolment at the UP, for the 22-23 school year, and seek DOE funding.

Parent advises the DOE of the need for Student transportation. (Ex F 1)

G Response to ten-day notice, 9/7/22, one page The DOE advises the Parent that the matter is not appropriate for settlement.

H DOE acknowledgement of receiving impartial hearing request,

10/24/22, one page The DOE acknowledges receipt of the DPC. (Ex A)

L [REDACTED] School description, unidentified date, two pages

General characteristics of the UP include:

• • K-12 college preparatory program
• • Student Attends Lower School (K to 5)
• • Self-contained learning environment
• • Multi-sensory approach to learning (Ex L 1)

M '22/'23 weekly schedule, one page

Student Academic schedule.

N Attendance report, 11/30/22, one page

Student attendance, for the 22-23 school year, shows three absences, thus far.

O Tuition invoice with '22/'23 enrollment agreement and financial aid letter, 9/8/22, eight pages

Student Tuition, for the 22-23 school year, is evidenced to be $[REDACTED]. This is the amount due after application of a financial aid grant. (Ex O 1 & 8)

Parent has made payments, thus far, in the amount of $[REDACTED].

A balance remains, of $[REDACTED].

P Invoice, 10/15/22, two pages

Invoice reflecting application of Financial Aid Grant and incoming Parent Payments, towards the Student 22-223 Tuition.

Q 2021 1040 tax form, six pages

Tax Form shows Parent income, for 2021, of about $[REDACTED]. (Ex Q 1)

R Independent educational evaluation report, 1/1/21, 29 pages

Confirms Student need for special education services, with diagnosis of:

• • ADHD - Combined Presentation
• • Specific Learning Disorder with Impairment in Reading (i.e., [REDACTED], moderate, basic reading skills)
• • Language Disorder, by history (Ex R 21)

Recommendations are made that include:

• • Small, special education class
• • Teachers with expertise in teaching students with [REDACTED] and ADHD, as well as language disorders
• • Evidenced based reading intervention (Ex R 21)
• • Explicit writing instruction
• • External prompting
• • Supports included in the Student’s IEP (Ex R 22)

S Speech evaluation, 5/21/21, ten pages

Confirms Student need for Speech Language Services. (Duplicate of Exhibit 5)

T Midyear report, 1/22, 18 pages

UP 21-22 Report includes:

• • General Description of the Student and Program: [REDACTED]-old student, self-contained class of 11 students and two teachers, along with regular academic subjects, Student receives language therapy twice a week with one other child and occupational therapy one time a week with two other children and a whole group typing class one time a week, attends gym two times each week, and music, art, library, and science weekly. (Ex T 1)
• • Progress is notes (Ex T 1-2)
• • Student supports include: small reading group, reading program which is a structured multisensory program that utilizes auditory, visual and kinesthetic channels to help students master the processes of decoding, spelling and handwriting (Ex T 4);
• • Supports and progress are noted in areas of Math (Ex T 6-8); Language Therapy (Ex T 8-10); and Occupational Therapy (Ex T 11-12).

U Year-end report, 6/22, 15 pages

End of UP 21-22 Report continues to set forth Student supports and notes progress, I areas of:

• • Reading: small reading group, reading program, individualized attention, redirection and participation checklists with progress noted in encoding decoding and fluency skills (Ex U 4-5);
• • Math: small group, modified 3rd grade curriculum, hands on learning and manipulatives, with progress noted in addition, subtraction and regrouping (Ex U 6-7);
• • Language Therapy, once per week with one other student. Consultation with her teachers occurs on a monthly basis. Student is easily distracted and benefits from redirection to stay on-task. Student is sometimes impulsive which affects her social communication skills in that she may speak without thinking first or interrupt others when they are talking. She continues to make slow progress in waiting to speak and raising her hand if she has something to say while her peer is talking. Therapy focused on improving social communication skills and expressive language (Ex U 8-9);
• • Occupational Therapy, once a week for pull out OT sessions (with one therapist and three students) for 30 minutes and once a week for whole class typing for 30 minutes. The therapist continued to monitor Student’s digital literacy skills (positioning, home row typing), sensory processing regulation, attention, problem-solving and executive functioning skills. Therapy sessions focused on fine motor/graphomotor visual perception, sensory-gross motor performance, sensory processing, and school-oriented elf care. Consultation with Student's teachers continued to occur as needed to support Izzy in the classroom. (Ex U 10-11)

Y Affidavit of parent, 12/8/22, eight pages

Parent provides Testimony that includes:

• • Student began attending the UP for the 21-22 school year
• • Student did well during the 21-22 school year (Ex Y 1)
• • Parent concerns with DOE Student placement, prior to the UP placement, resulted in an IEE (Ex Y 2, Ex R)
• • IEP meetings took place after the Evaluation was completed (Ex Y 2, Ex R)
• • The DOE did not incorporate the IEE recommendations, prompting Parent to place Student at the UP, for the 21-22 school year (Ex Y 2)
• • Parent had the same concerns for the 22-23 school year: “when we asked why the DOE-employees at the January 31, 2022 meeting what other approaches might work and why they believed other approaches might work, nobody from the DOE could point to any documentation or anything else about Student to show that anything other than what was recommended by the IEE (Ex R) (T Y 3);
• • Parents disagree with the DOE recommended program, communicated concerns to the DOE, and ultimately filed the current DPC (Ex Y 4);
• • Parent has not received a response to the concerns detailed in written correspondence (Ex Y 4);
• • A review of Student challenges and Parent concerns to which the DOE has not responded (Ex Y 5);
• • Parent believes the UP is appropriate for the Student (Ex Y 6); Student benefitted from the UP placement and program (Ex Y 7);
• • Parent seeks DOE funding for the Student’s 22-23 UP Tuition, in the amount of $[REDACTED]. (Ex Y 7-8)

Z Affidavit of [REDACTED], 12/12/22, 14 pages

Witness provides Testimony that includes:

• • Serving as the Committee on Special Education (CSE) Coordinator of the UP Lower School;
• • UP is a full-time college preparatory school specifically designed for student such as the Student who is the subject of the Hearing
• • UP provides intensive support for learning disabilities, small class sizes, specialized teaching methodologies, a multi-sensory approach to learning, and a challenging curriculum (Ex Z 1);
• • Exhibit L accurately describes the UP;
• • UP Student supports include: interactive and assistive technology (FM Systems and Chromebooks) to support students with disabilities such as ADHD and [REDACTED]; small class sizes; low student-teacher ratio; differentiated instruction based on individual needs, strengths, interests and abilities to accommodate all types of learners (Ex Z 2);
• • Academic curricula are based on New York State Common Core Standards (Ex Z 2);
• • All teachers use language modification techniques, multi-sensory, hands-on approach to teaching;
• • Students in the Lower School (Through Grade 5) receive small group instruction in reading and math, based on instructional level and ability (Ex Z 3);
• • Witness is familiar with the Student, and confirms Exhibit M is the Student’s accurate schedule, for the 22-23 school year (Ex Z 3 & 5-6);
• • UP provides professional development for staff;
• • UP holds weekly staff meetings (Ex Z 4);
• • UP is aware of Student diagnoses, and challenges that include: ADHD, [REDACTED], poor reading comprehension, poor executive functioning, inattentiveness, and insufficient language skills (Ex Z 6)
• • Student, for the 22-23 school year, is in a self-contained class of 12 students and two teachers; receives language therapy once individually, in a group, and as a push in group service; and receives occupational therapy once weekly (Ex Z 6-7);
• • Student is making progress, and has responded well to supports, since the start of the 22-23 school year;
• • Student growth is noted in areas that include: advocating for tools to support learning; independent work periods; writing (Ex Z 7); socially; speech and language; Math (Ex Z 8); language therapy; and occupational therapy (Ex Z 9);
• • The UP is meeting the Student’s needs and is appropriately placed (Ex Z 10);
• • Student Tuition, for the 22-23 school year, is $[REDACTED] (Ex Z 10);
• • Witness describes the IEP meeting of 01/31/2022, and believes it did not appropriately address the Student’s needs, for example by not including what was individualized or specific to the Student (Ex Z 11-12); and
• • Witness believes the recommended ICT placement was not appropriate for the Student. (Ex Z 12)

FINDING OF FACTS AND DECISION

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

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

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

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

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

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

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

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

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

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

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

DOE offer of FAPE for the 2022-2023 School Year

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

The DOE has not evidenced development of an appropriate IEP and placement for the commencement of the 22-23 school year.

The DOE has not controverted any evidence presented by the Parent in support of the Parent’s Case.

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

Parent raised special education concerns, related to the Student, at the IEP meeting, and afterwards via written correspondence. (Ex 4-4, Ex C)

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

UP Placement for the 22-23 School Year

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

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

Evidence sets forth areas of Student special education need (Ex 2, D, R, S, T, U, Y & Z) services to address those needs (Ex L, M, R, Y & Z) and notes progress. (Ex Y & Z)

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

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

TUITION FUNDING 22-23 School Year

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

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

The UP is found to serve as an appropriate placement, for the Student, for the 22-23 school year.

Student Tuition, for the 22-23 school year, is evidenced to be $[REDACTED]. This is the amount due after application of a financial aid grant. (Ex O 1 & 8, Ex P)

Parent has made payments, thus far, in the amount of [REDACTED].

A balance remains, of $[REDACTED]. (Ex O 8 & P)

Parent evidences a limited income of about $[REDACTED]. (Ex Q 1)

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

In this matter the Parents choose to continue Student placement at UP, without any DOE response to concerns regarding the Student’s special education program, and ultimately the failure of the DOE to offer the Student an appropriate IEP and program for the 22-23 school year. (Ex Y 5, 7-8)

Parent provides information relative to their financial capability. (Ex Q)

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

I find the Parent establishes that it would be an unreasonable financial burden to pay the balance of the Student 22-23 UP Tuition and await reimbursement.

I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to direct DOE funding of the balance of the UP tuition, for the 22-23 school year.

I find the Parent is entitled to Student UP 22-23 Tuition, as Ordered below.

ORDER

• • The Department of Education (DOE) failed to offer the Student a FAPE for the 2022-2023 school year.
• • The DOE shall fund Student, [REDACTED] School (UP) Tuition, for the 22-23 school year, up to the amount of $[REDACTED], as Ordered below:
• • Reimbursement to the Parent for any portion of the Tuition paid, presently:
• • $[REDACTED]; and
• • Direct payment of the balance of Tuition to [REDACTED] School, presently due in the amount of: $[REDACTED].
• • The DOE shall provide Parent with any documents or forms necessary to facilitate payment under this Order, within ten days of the date of this Order.
• • 4. This decision is subject to appeal and review by the State Review Officer.

DATED: JANUARY 4, 2023

DANIEL AJELLO

DANIEL AJELLO

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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