New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 588684 - NYC: 239831

FINDINGS OF FACT AND DECISION

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 12/23/2022

02/24/2023

03/31/2023

04/10/2023

04/28/2023

Actual Record Close Date: 05/22/2023

Decision Date: 05/22/2023

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 12/23/2022

(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 02/24/2023

(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 03/31/2023

(All Parties Appeared Via Teleconference)

For the Student:

None

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON 04/10/2023

(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 04/28/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

[REDACTED], IEP Coordinator

[REDACTED]

For the Department of Education:

[REDACTED], ESQ., District Representative

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

Exhibit Description Date Page(s) Entered 12/23/2023 A Due Process Complaint (DPC) 9/30/2022 4 Entered 04/28/2023 B 10-Day Notice of Unilateral Placement 8/22/2022 3 C [REDACTED] School ([REDACTED])

Program Description 22-23 School Year (SY) 2 D [REDACTED] Enrollment Contract 22-23 SY 10 E [REDACTED] Student Schedule 22-23 SY 2 F [REDACTED]-Student Semester 1 Report Card 22-23 SY 4 G [REDACTED]-Student Mid-Semester 2 Report 22-23 SY 1 H Neuropsychological Evaluation 2022 34 I [REDACTED] Affidavit 4/26/2023 5 J [REDACTED] Affidavit 4/24/2023 4

DEPARTMENT OF EDUCATION (DOE)

None

IMPARTIAL HEARING OFFICER

Entered 12/23/2022

I Notice of Appointment, 12/15/2022, 4 pages

II DOE Notice of Appearance, 12/19/2022, 1 page

INTRODUCTION

On 12/15/2022, 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 12/23/2022, to allow an opportunity for the DOE to defend against the allegations contained in the DPC.

At Hearing, of 12/23/2022, the DOE Attorney advised that the matter was referred for settlement. (T 4)

Hearing was set to continue, on 02/24/2023, to allow time for potential settlement. (T 9)

At Hearing, of 02/24/2023 the Parent Attorney advised that the Parties were working on assembling a Stipulation which was anticipated to settle the matter. (T 13)

Hearing continued, on 03/31/2023. Neither Party appeared, though email communications indicted final settlement could not be reached.

Hearing was continued, on 04/10/2023. Parent Attorney confirmed settlement was unable to be reached. (T 22-23)

The DOE Attorney confirmed that it was not presenting a case to defend against the allegations contained in the DPC. (T 23, Ex A)

Hearing date, of 04/28/2023, was set for the Parent to present its case. (T 24-25)

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

Due Process Complaint (DPC) alleges a failure of the DOE to provide an appropriate IEP and placement for the 2022-2023 school year. (Ex A 1)

Parent seeks a variety of forms of relief to remedy the alleged failure, including: direct DOE funding for Student’s unilateral placement (UP), at [REDACTED] (UP); funding for Independent Educational Evaluations (IEEs), including: independent neuropsychological, speech-language, occupational therapy and assistive technology evaluations; and appropriate transportation to and from the UP. (Ex A 2-3)

JURISDICTION

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

THE POSITION OF EACH PARTY

The DOE did not defend any offer of a Free Appropriate Public Education FAPE), for the Student, for the 22-23 school year.

At Hearing, the Parent supported its position via Documentary Evidence and Oral Testimony.

Parent Attorney summarized its position, at Hearing, of 04/28/2023:

- Student is a [REDACTED]-old known to the DOE since kindergarten, having an IEP; - Student is classified with a learning disability and also diagnosed with conflicting diagnoses of ADHD, learning disorders in reading, phonological processing disorder, and social and adaptive deficits (T 69); - The DOE has funded her private school education since the '15/'16 school year (T 69-70); - The DOE has been on notice of this ever since 2015 and have not held an IEP meeting since that time; - The DOE has not defended against the DPC, has not held an IEP meeting; - The DOE has not offered a Student placement; - REDACTED is an appropriate Student placement (T 70); - Evidence supports the [REDACTED] as appropriate (T 70-71); and - [REDACTED] provides supports that include: chunking of information, use of scaffolded questioning, and graphic organizers (T 71).

Parent Attorney arguers:

“It's our position that the school is an appropriate placement for her and it's our position also that equities favor the Parent in this case. It is the DOE who has been neglecting in this matter, not the Parent. The Parent has, each year since 2015, let them know hey, are you guys going to have an IEP and an annual review? And each year they've been settling her cases or giving her a Nickerson letter or something to that effect and have chosen not to. This is through no fault of her own. To suggest otherwise is just insanity and absurdity.” (T 72) “The Parent has provided the DOE with notice. The contract itself provides that yes, there is an amount due of $[REDACTED] . However, it even provides an optout provision for the parent should the DOE do what the law requires them to do and provide her with a free and appropriate education. However, they didn't do it. They did not do so. So it's a good thing that the parent did sign that contract back in February to hold her spot. Had they done so and she was placed in a public school, the parent would not be liable for this money, but she is, and through the agreement of the school, they allowed her to delay her payments until this case is over. So there's no fraud or ill intent here at all, Your Honor. It's our position that equities favor the Parent in that there should be an award of direct tuition payment to the school, as well as a refund of the [REDACTED] that the parent has already paid towards the tuition.” (T 72-73)

Parent Attorney also withdrew the request for a neuropsychological evaluation. (T 73)

The DOE Attorney: concedes an IEP was not in place for the 22-23 school year (T 73); and that equities weigh against the Parent who should have sent the Ten Day Notice sooner, considering a contract was signed in February of 2022; and the Parent was obligated to communicate with the DOE upon signing of the UP contract in February. (T 74-75)

The DOE does not support its argument with any law or evidence, which would obligate the Parent to take any action beyond what is evidenced.

The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below: [REDACTED], IEP Coordinator, [REDACTED]

Witness Testimony included:

- Necessary student accommodations are determined by subjects teachers, referral to a neuropsychological evaluation, the IEP, and a student’s educational history (Ex T 38).

[REDACTED], Parent

Witness provided Testimony via Exhibit J, and oral Testimony that included:

- Paying [REDACTED].00 of the Student’s UP Tuition Contract (T 48, Ex D 7); - Student dd not receive any reduction in Tuition (T 50); - Witness believed she would not have to pay the Student’s Tuition since she was seeking DOE funding (T 55); and - The DOE funded the Student’s attendance at [REDACTED] for the 21-22 school year (T 68).

A Due Process Complaint (DPC) 9/30/2022

Details allegations and sought after relief, related to the 22-23 school year.

B 10-Day Notice of Unilateral Placement 8/22/2022

Parent notifies school of: Student’s challenges; history of DOE funding of Student’s private placements; failure of the DOE to conduct an IEP meeting and offer a 22-23 Student placement (Ex B 1); in light of DOE failure the Student will continue at the UP; Parent will seek DOE funding for the Student placement at the UP, for the 22-23 school year; and Parent seeks transportation to and from the UP. (Ex B 2)

C [REDACTED] Program Description 22-23 School Year (SY)

Provides general characteristics of the UP, which include:

- K-12 college preparatory program dedicated to the success of students with learning disabilities; - Our specialized teaching methodologies and challenging curricula empower students to become academic achievers, creative thinkers, advocates for equity, and contributing members of a global society (Ex C 1); - The upper school offers a rich, supportive and challenging college preparatory program for students with learning disabilities who have completed eighth grade at the school or who enter from other specialized and mainstream programs; - The program is tailored to the various needs of each student, preparing them for matriculation into public and private two and four-year colleges or other postsecondary options; - The upper school offers a structured, multisensory and interdisciplinary approach, utilizing individualized instruction, small group and full class activities and handson learning aimed at fostering students' ability to self-advocate and establish effective study skills, students participate in an extensive academic program; - Instruction is provided in mathematics, English language arts, social studies, laboratory science, Spanish and American Sign Language; - Traditional subjects are augmented by experiential education program that expands the core curriculum beyond the physical walls of the classroom, and includes outdoor education components and educational travel; - Physical education and athletics, as well as rich visual, music and performing arts components complete the core academic program; - The school is also committed to offering a variety of meaningful student leadership opportunities; - Clubs and activities, such as a student government, are led by students under the guidance of faculty advisors who bring both expertise and enthusiasm to such activities; - [REDACTED] cherishes and nurtures the inherent value of each student. It recognizes that each individual has unique and important contributions to make and that these gifts are best fostered in community. (Ex C 2) D [REDACTED] Enrollment Contract 22-23 SY Tuition is set forth as: [REDACTED].00. (Ex D 1) Deposit made, via credit card charge of: [REDACTED].00. (Ex D 1, 8 & 10) Balance remains of: [REDACTED].00. (Ex D 1 & 8)

Parent is obligated to payment via signature upon the contract. (Ex D 7)

E [REDACTED] Student Schedule 22-23 SY

Student academic UP Schedule, for the 22-23 school year.

F [REDACTED]-Student Semester 1 Report Card 22-23 SY

Includes:

- Student attendance (Ex F 1); - Student is noted to have made progress (Ex F 1-2); - Student challenges and supports include: o some confusion in reading comprehension and, in particular, has struggled finding relevant textual evidence when responding to questions in English class o needs extra support to generate writing and her teachers have stated that she benefits from group brainstorms which help her generate ideas for writing assignments o to support Student in fulfilling all aspects of an assignment or main idea, she requires teacher-initiated check-ins and repetition of the main concepts o Student receives specific modifications to ensure her academic success, including: average class ratio of 8:1 phased as Modified Instruction Level I in ASL and mathematics phased as Significantly Modified Instruction Level in Earth Science, Social Studies, English and Arts Curricular content modifications that she receives are chunking of information, abridged content, modified pace of instruction, modified support in developing ideas, repetition of main ideas and scaffolded notes Executive functioning modifications provided for her are extensions for late work, support in executive functioning tasks, teacher initiated check-ins, frequent redirection during class and supplementary materials allowed for exams Work expectation modifications are one-to-one support in class, significantly modified tests and significantly modified assignments. (Ex F 2-3)

G [REDACTED]-Student Mid-Semester 2 Report 22-23 SY Student Report includes:

- Attendance at the UP (Ex G 1) - Successful grades (Ex G 1)

H Neuropsychological Evaluation 2022

Report details areas of concern and sets for Diagnoses of:

o Attention Deficit Hyperactivity Disorder; Combined presentation o Specific Learning Disability; with impairment in reading o Phonological Processing Disorder o Social and adaptive deficits o Mild Cognitive Impairment; verbal memory delays o Visual Spatial Deficit o Parent-Child Relational Problem (Ex H 31-32) Recommendations include: - Continued education placement (Ex H 32 - Therapeutic interventions (Ex H 32-33) - Additional 1:1 tutoring (Ex H 32) - Additional evaluations, such as audiological and ophthalmological (Ex H 32-33) I [REDACTED] Affidavit 4/26/2023 UP CSE Coordinator, for the UP Upper School, provided Testimony that included: - Her qualifications role at the UP (Ex I 1); - Students, at the UP, have a variety of Language Based Learning Disabilities; - A review of basic UP characteristics, including: multisensory methodologies; collaborative education team; teachers and assistant teachers share teaching responsibilities (Ex I 2); - Familiarity with the Student, since September 2022; - Familiarity with Student educational challenges and diagnoses (Ex I 3); - Student attends [REDACTED] grade, at the UP; - Student attends classes of eight students and one teacher, or twelve students and two teachers; - Student takes academic classes and receives speech language therapy and occupational therapy; - Student academic class placement was based on age/grade, academic and social functioning; - Student requires one-to-one support, and supports that include: pacing and time management for writing; leveled reading assignments; and often sentence starts in information heavy subjects; - Student curriculum includes the REDACTED which supports, scaffolds and helps structure student writing; - Student uses graphic organizers, and received consistent support with organization and attention/redirection to the task at hand (Ex I 3); - Student supports include Assistive Technology (laptop, FM Units); - AT helps the Student to make academic progress via Word processing programs to support spelling and extensive edits, with access to Google Read & Write; - A review of qualifications of Student’s English Teacher, and support utilized for the Student; - A review of qualifications of Student’s Math Teacher, and support utilized for the Student (Ex I 4); - Student progress is measured through formal and informal observations, as well as curriculum-based assessment tools; - Student has made progress during the 22-23 school year; - Student Tuition, for the 22-23 school year, is [REDACTED].00; - UP serves as an appropriate Student placement; - Student requires an explicit multi-sensory language-based program within a small group setting to make academic, social, and emotional progress; - Services and support the Student receives, at the UP, are designed to meet Student’s. (Ex I 5)

J [REDACTED] Affidavit 4/24/2023

Student’s mother provided Testimony that included:

- Student history of receiving special education services, since the 15-16 school year; - DOE funding of Student’s private school education since the 2015-2016 school year pursuant to a Nickerson letter, impartial hearing orders and settlement agreements; - Student in the ninth grade, and has made educational progress despite her learning challenges due to her placement in a small school setting, classes with a small student to teacher ratio, small group ELA and writing instruction, integrated related services and specialized teachers who utilize direct, explicit research based multisensory teaching methods; - Prior to September 2022, Student’s last annual review was held on June 1, 2015.; - The IEP prepared at that meeting recommended an approved non-public day school; - I did not receive any notices or correspondence from the DOE scheduling an annual review meeting prior to the 2022-2023 school year; - On August 22, 2022, I submitted (through my attorney) a 10-day notice to the DOE stating I intended to enroll Student at the UP if did not prepare a timely, appropriate IEP and placement (Ex B); - No program or placement recommendation was made by the DOE prior to the start of the 2022-2023 school year (Ex J 1); - Enrollment Contract was signed, with the UP, obligating Parent to payment of [REDACTED].00, of which payment of [REDACTED].00 has been made (Ex D); - Transportation to and from the UP is sought as relief; - Parent income is about $[REDACTED] yearly, with three children and no child support; - Due to limited financial resources the executed enrollment contract allows delayed payments while tuition claim is pending; - Student has improved while at the UP, in academic, social, and emotional wellbeing, and in reading and writing. (Ex J 2)

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

The district has presented no witnesses in this matter. The District submitted no IEP, for the 22-23 school year.

The DOE offered no evidence regarding the Student’s 22-23 schoolyear and any related offer of a FAPE.

The District has not met its burden to establish that it provided a FAPE.

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

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

The DOE argument that the Parent somehow has an increased standard

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

UP Placement for the 22-23 School Year

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

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

Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex C, E, F, G, H, I & J, T 38)

I find that the 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 2022-2023 School Year

I find the Parent is entitled to Student’s UP Tuition funding, via the DOE, for the UP, 22Deposit made, via credit card charge of: [REDACTED].00. (Ex D 1, 8 & 10)

Balance remains of: [REDACTED].00. (Ex D 1 & 8)

Parent is obligated to payment via signature upon the contract. (Ex D 7)

Enrollment Contract was signed, with the UP, obligating Parent to payment of [REDACTED].00, of which payment of [REDACTED].00 has been made. (Ex D)

Parent income is about $[REDACTED] yearly, with three children and no child support; and due to limited financial resources the executed enrollment contract allows delayed payments while tuition claim is pending. (Ex J 2)

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

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

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 evidenced a financial inability to pay the UP Tuition directly.

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 UP tuition, for the 22-23 school year.

I find the Parent is entitled to direct UP funding as Ordered below.

TRANSPORTATION

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). 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" (Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]).

Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 16035). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]).

Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

Parent sought after relief includes transportation, to and from the UP. (Ex A 2-3, B 2 & J 2)

I find evidence supports the provision of a transportation for the Student for the 22-23 school year.

Transportation is necessary for the Student to engage the services and supports necessary for an appropriate 22-23 school program and placement.

ORDER

1. The Department of Education (DOE) failed to offer the Student a FAPE for the 22-23 school year.

2. The DOE shall directly fund Student 22-23 Tuition, for attendance at The [REDACTED] (UP), up to the amount of [REDACTED].00, as follows: o Reimbursement to Parent of [REDACTED].00; and o Direct funding, to The [REDACTED], in the amount of [REDACTED].00.

3. The DOE shall provide Student transportation to and from The [REDACTED], for the 22-23 school year.

4. The DOE shall provide Parent with any documents or forms necessary to facilitate payment under this Order, within ten days of the date of this Order.

5. This decision is subject to appeal and review by the State Review Officer.

DATED: May 22, 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.

Footnotes

[23] school year. The DOE has denied a FAPE to the Student for the 22-23 school year. Parent provided appropriate Ten Day Notice Letter to the DOE. (Ex B) Tuition is set forth as: [REDACTED].00. (Ex D 1)