New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 588741 – NYC: 239888

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

02/17/2023

Actual Record Close Date: 02/28/2023

Decision Date: 02/28/2023

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], Attorney

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 02/17/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

[REDACTED], Assistant Coordinator

[REDACTED] High School

For the Department of Education:

NONE

DOCUMENTATION ENTERED INTO THE RECORD PARENT

A. Exhibit Description Date Page(s) Entered Due Process Complaint (DPC) 9/30/2022 7 12/23/2022

B. Pendency Form 12/8/2022 2 02/17/2023

C. Notice of Rejection 9/2/2022 1 02/17/2023

D. [REDACTED] Tuition Contract 9/6/2022 1 02/17/2023

E. [REDACTED] Student Schedule 2022-2023 1 02/17/2023

F. [REDACTED] Attendance Record 1/31/2023 1 02/17/2023

G. [REDACTED] Tuition Payment Affidavit 12/12/2022 1 02/17/2023

H. [REDACTED] Report Card – Semester One Second Marking Period 2022-2023 2 02/17/2023

I. [REDACTED] School Progress Report 11/10/2022 2 02/17/2023

J. IRS Form 1040 – Parents 4/27/2022 2 02/17/2023

K. Affidavit of [REDACTED]

([REDACTED]) 2/16/2023 5 02/17/2023

L [REDACTED] Student Schedule –

Expanded 2022-2023 1 02/22/2023

DEPARTMENT OF EDUCATION (DOE)

NONE

IMPARTIAL HEARING OFFICER

Entered 12/23/2022 I Notice of Appointment, 12/15/2022, 4 pages

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 12/23/2023, to allow an opportunity for the DOE to defend against the allegations contained in the DPC.

Hearing continued, and concluded, on 02/17/2023.

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 22-23 school year. (Ex A 3)

Allegations include:

- Student is a [REDACTED] who lives with Parent within the confines of the DOE, and is currently slated to enter the [REDACTED] grade attending [REDACTED] (Ex A 3); - Student: displays significant delays in reading, math, and writing; displays poor eye contact, difficulty understanding social cues and struggles with emotional regulation; requires a very small class setting with constant one-on-one support to keep him on task; responds to visual cueing, multi-sensory instruction, and positive behavior plans; - On or about January 26, 2022, a Committee on Special Education (CSE) meeting was held to develop an IEP for Student; - The projected dates of service for the recommended programming on the IEP were February 10, 2022; - The DOE failed to evaluate the student in all areas of disability, which resulted in the CSE’s failure to make an appropriate program recommendation; - The CSE was not in possession of current psychological, educational, social history, and progress reports; - The CSE relied upon old documents and evaluations to make its determination; - A later DOE-issued Prior Written Notice (PWN), dated June 2, 2022 and citing the January 26, 2022 CSE meeting, stated that the CSE used a February 22, 2019 Psychoeducational Assessment in making its determinations that day; - However, the CSE failed to include a psychologist in the CSE meeting. In addition, the CSE failed to secure the presence of [REDACTED] teachers from [REDACTED], the private school he had been attending; - Without the presence of teachers from [REDACTED] or an updated psychoeducational assessment, the January 26, 2022 CSE lacked the necessary information to create an appropriate IEP whether for the remainder of the 2021-2022 school year or for the 2022-2023 school year; - Moreover, the January 26, 2022 IEP noted that Student was decoding at a 9th grade level and comprehending at an 8th grade level; - The IEP also indicated Student’s performance at the 3rd grade level in math; - Additionally, apparent scoring on the Wechsler Intelligence Scale for Children from February 2020 showed significant deficits in fluid reasoning, working memory, and processing speed; - Despite this, no specific reading or math-related programming was recommended and the IEP lacked any supplementary aids, modifications, or accommodations of any kind whatsoever; - The CSE failed to recommend any assistive technology devices or services to assist Student in his academic subject areas; - The Parent expressed that Student requires a small student/teacher ratio in a small and structured educational setting with sufficient academic supports in order for him to benefit from an educational program; - The CSE then met and recommended a special class setting with a student teacher ratio of 15:1; - The Parent expressed Student’s need to be placed in a smaller program with additional supports; - The DOE’s program recommendation of the 15:1 class was inappropriate to address Student’s needs. (Ex A 4); - On or about June 2022, the Parent contacted staff at the DOE-recommended School and was thereby informed that the school could not meet the IEP-mandated frequency of 10 times per week of special class math and ELA programming; - The DOE failed to follow-up with Parent or otherwise address this discrepancy in any way; - By email dated September 2, 2022, Parent served the DOE with a 10-day Notice of Rejection and unilateral placement at [REDACTED] through counsel; - The DOE did not subsequently address Parent’s concerns; - Accordingly, and due to the CSE’s failure to offer a FAPE, the Parent unilaterally placed the student at [REDACTED] and hereby seeks tuition reimbursement/prospective funding from the NYC DOE; - The Parent also requests that her child be provided with transportation services to the private school as of the first day of classes, in accordance with applicable law; - [REDACTED] is providing supports and services to [REDACTED] that are specifically tailored to meet his individual academic, social, and emotional needs within an appropriate school setting; - Parent has cooperated in good faith at all times with the DOE, did not act to frustrate the DOE’s obligation to provide Student with a FAPE, or otherwise behave unreasonably with regard to her dealings with the DOE; - Parent participated actively at CSE meetings, provided her consent to all requested evaluations, and notified the DOE in writing that she was enrolling Student at [REDACTED] upon rejection of the DOE’s recommended program and placement for the 2022-2023 school year. (Ex A 5)

Parent seeks relief that includes:

1. Pendency or “stay put” placement for [REDACTED] at [REDACTED] [REDACTED] High School (Unilateral Placement – UP) during the pendency of this matter;

2. Reimbursement/Prospective payment for the cost of the student's private tuition at [REDACTED] for the 2022-2023 school year (20 U.S.C. § 1412(a)(10), costs and fees (20 U.S.C. §1415(i)(3)(B)(C));

3. The implementation of immediate transportation services in accordance with New York State Law or reimbursement for the cost of providing transportation to and from the unilateral placement (Ex A 5);

4. An award of compensatory services, in a manner and amount to be determined at hearing;

5. Payment of the Parent’s attorneys’ fees and expenses associated with representation in this matter; and

6. Provision of any further relief which the Hearing Officer deems just and proper. (Ex A 6)

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.

The DOE did not defend against any allegations, contained in the DPC. (Ex A)

Parent Attorney appeared at Hearing, of 12/15/2023. Documents were entered into the Record. (IHO Ex I & Ex A)

The Parent’s Attorney advised the IHO that the Student has been attending the UP since at least 2017: “it remains our position as stated in the due process complaint that there's been another failure to offer this student a FAPE. I would just point out, it would appear that this is likely the student's terminal or last year, I don't know that for sure. Obviously, we don't have a crystal ball, but the student is now [REDACTED] years old. So I just want to make a note of that as well.” (T 5-6)

Parent Attorney advised that Pendency was no longer an issue. (T 4-5)

At Hearing, the Parent supported its position via Oral Testimony, and Documentary Evidence. The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below.

[REDACTED], Assistant Coordinator, [REDACTED] High School Provided Testimony that included:

- [REDACTED] instruction is a part of the Student’s program, at the UP, which accounts for 18 to 20 percent of the school day (T 22-23); - UP program meets Monday to Friday (T 24); and - [REDACTED] studies are taught with the same instructional supports as delivered during other academic classes. (T 25-28) [REDACTED], Parent Student’s mother provided Testimony that included: - Parents incomes fluctuates depending on work performed by the mother, who is a [REDACTED] (T 35); - Income is roughly about $[REDACTED] yearly (T 35); - Parent does not have funds available to pay the Student’s UP Tuition, and await reimbursement (T 36); and - Parent rents the family home, has credit bill each month, and is paying a student loan. (T 36-37)

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

Details Parent’s allegations relating to denial of FAPE, and sought after relief.

B Pendency Form 12/8/2022

Fully executed Pendency Program Form.

C Notice of Rejection 9/2/2022

Parent provides an appropriate Ten Day Notice (TDN), to the District, including:

- Due to the NYC DOE's failure to offer this student a Free Appropriate Public Education for the 2022-2023 school year, the Parent has unilaterally placed the student at the UP; - Parent expressed to the CSE that the student requires a small student/teacher ratio in a small and structured educational setting with sufficient academic supports in order for the student to benefit from an educational program; however, the CSE recommended a continuation of an inappropriate special class setting with a student/teacher ratio of 15:1 as well as counseling and speech-language therapy; - Moreover, upon information and belief, representatives of the recommended Public School informed the Parent that the school would not be able to meet even the inappropriate programming mandated on the Student’s IEP; and - The Parent requests that her child be provided with transportation services to the private school as of the first day of classes, in accordance with applicable law. (Ex C 1) D [REDACTED] Tuition Contract 9/6/2022 Student 22-23 Tuition, at the UP includes: Tuition: $[REDACTED] Registration: $[REDACTED] Related Services: $[REDACTED] (Speech Language Therapy) Related Services: $[REDACTED] (Counseling)

TOTAL: $[REDACTED]

(Ex D 1)

Parent is obligated to payment, under the Tuition Contract, via signature. (Ex D 1)

E [REDACTED] Student Schedule 2022-2023

Student Academic and Related Services schedule.

F [REDACTED] Attendance Record 1/31/2023

Student attendance, at the UP, through beginning of January 2023.

G [REDACTED] Tuition Payment Affidavit 12/12/2022

Affidavit reflect Total Tuition Amount of $[REDACTED], and that no payments have thus far been made.

H [REDACTED] Report Card – Semester One, Second Marking Period 2022-2023

Student shown to be passing academic subjects.

I [REDACTED] School Progress Report 11/10/2022

Reviews areas of Student program, including goals, and functional levels for:

o Math o Reading (Ex I 1) o Writing (Ex I 1-2) Sets forth goals for Social / Emotional and Interpersonal Relationships. (Ex I 2)

J IRS Form 1040 – Parents 4/27/2022

Parent income is evidenced to be about $[REDACTED]. (Ex J 1)

K Affidavit of [REDACTED] ([REDACTED]) 2/16/2023

UP Assistant Program Coordinator provides Testimony that includes; - Experience and qualifications (Ex K 1)

- General characteristics of the UP: special education program which offers self contained special education classes hosted within mainstream school sites; students receive small and full time special education programming with mainstream opportunities as is appropriate for each individual student; individually tailored program that addresses each student’s unique special education and instructional needs separate and apart form their NYC IEP (Ex K 1); students typically have Learning Disabilities or Speech Language

Impairments (Ex K 2); - UP staff takes part in ongoing professional development (Ex K 1); - At Student’s UP program: each class is carefully grouped based on academic, social, and learning needs; classes Are typically 6:1 or 7:1 ration; this allows for the proper level of individualized teaching assistance, given the students’ special education needs (Ex K 2); - Familiarity with the Student, since September 2019, who attends 12th grade, at the UP; - Observes Student formally, and informally, daily during the 22-23 school year; - Student presents as a conscientious and diligent learner; - Student struggles include: significant delays in reading, math, writing, and social skills; and attentional delays:

- Student requires: very small group instruction; 1:1 support; and curriculum modifications, to make progress; assistance coping with his academic and social environment; help organizing and maintaining a schedule on a daily basis to ensure emotional well being; and work in areas of self advocacy, prioritization and executive functioning skills (Ex K 2); - Student is placed in a class with seven students (including himself) and three lead teachers; all students were [REDACTED] or [REDACTED] grade students and had Speech Language Impairments and/or Learning Disabilities; classmates shared a commonality of academic, social and emotional needs; - Witness teacher Student history and health/science/computers (Ex K 2); - A review of Student teacher, and related service provider, qualifications (Ex K 2-3); - Student received Speech Language Therapy twice weekly for 30 minute sessions, and Counseling twice weekly for 30 minute sessions (1 group and 1 individual session) (Ex K 3); - Student is noted to have made progress with his related services, Counseling and Speech Language Therapy (Ex K 4-5); - Student management needs include: small group instruction; frequent teacher check-ins; additional time to process information; curriculum modifications; complexity reduction; visual cueing; multi-sensory instruction; positive behavior plans; rate and volume reduction; and extensive use of smartboard technologies (Ex K 3); - Student progress is noted in areas of Reading, Writing and Math (Ex K 3-4); - Witness reviewed the Student’s 22-23 IEP and details where he believes it is insufficient (Ex K 4); - Witness believes the UP program is an appropriate placement, for the Student, successfully providing educational benefit; - UP provide small classes and intensive supports, and Student is making meaningful progress; and - UP’s unique design of the special education program, located within a mainstream site, “affords [Student] with tremendous opportunity for social growth while being strongly supported academically…[Student] also receives appropriate related services during the 22-23 school year.” (Ex K 5)

L [REDACTED] Student Schedule – Expanded 2022-2023

Student schedule details academics, related services, and portion of UP program related to [REDACTED] Studies.

School day runs weekly, Monday through Thursday, from 9:30 am to 6:30 pm (9 hours). [REDACTED] Study portion of the day runs from 9:30 am to 11:30 am (2 hours). [REDACTED] portion of the day accounts for about 22% of the Student’s day/Tuition.

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 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 22-23 School Year

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

The DOE has evidenced neither, the development of an appropriate IEP, nor appropriate placement 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.

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 E, H, I K & L)

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

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

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

Parent provided, via Attorney, appropriate TDN, for he 22-23 school year. (Ex C)

Student 22-23 Tuition, at the UP includes:

Tuition: $[REDACTED] Registration: $[REDACTED] Related Services: $[REDACTED] (Speech Language Therapy) Related Services: $[REDACTED] (Counseling)

TOTAL: $[REDACTED]

(Ex D 1)

Parent is obligated to payment, under the Tuition Contract, via signature. (Ex D 1)

None of the 22-23, Student, UP Tuition has been paid. (Ex G)

Witness, from the UP, acknowledges that there is a degree of [REDACTED] instruction, included in the Student’s program, accounting for 18 to 20 percent of the school day (T 22-23); A review of the Student schedule reveals about 22% of the Student time is devoted to [REDACTED] studies. (Ex L)

Study portion of the day runs from 9:30 am to 11:30 am (2 hours). [REDACTED] portion of the day accounts for about 22% of the Student’s day/Tuition.

Calculations regarding fundable portion of the Student’s UP, 22-23, Tuition are included below:

Tuition: $[REDACTED] (78% of $[REDACTED]) Registration: $[REDACTED] Related Services: $[REDACTED] (Speech Language Therapy) Related Services: $[REDACTED] (Counseling)

TOTAL: $[REDACTED]

(Ex D 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 alternative.

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

Parent testifies she does not have funds available to pay the UP tuition, and await reimbursement. (T 36-37)

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).

COMPENSATORY SERVICES

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100).

The nature and extent of compensatory education services that courts have recognized varies according to the facts and circumstances of a given case; however, as a remedy that arises out of the equitable jurisdiction of 20 U.S.C. §1415, courts will craft compensatory education relief that “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” Reid, 401 F.3d, at 516; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)(same); see, e.g., G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student.”); see also Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994)(Noting that “it may be a rare case when compensatory education is not appropriate” to remedy an IDEA violation.).

In determining a compensatory award, most courts seek to ascertain the child’s needs at the time the relief is sought.10 Reid, 401 F.3d 516; see, e.g., Streck, 2010 WL 4847481, at *2 (Court awarded compensatory education relief that required the school district to “open and maintain for 3 years, an escrow account,” which will be used to pay for student’s reading instruction at Landmark College and assistive technology supports.); Woods v. Northport Pub. Sch., 487 Fed. Appx. 968, 2012 WL 2612776, at *978-79 (6th Cir. July 5, 2012) (upholding IHO award of 768 hours of compensatory tutoring as “reasonable recover” for a lengthy denial of FAPE; given the student’s age, the “window of opportunity to become usefully literate ha[d] begun to close.”).

If Student is found to be entitled to compensatory education under applicable law; compensatory education is an equitable remedy that arises out of the jurisdiction of 20 U.S.C. § 1415; equitable factors do not bar relief here and no inequitable conduct was established on the part of the parents. N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Dist. of City, No. 07 Cv. 9648 (BSJ), 2009 WL 874061 (S.D.N.Y. Mar. 31, 2009) (Reversing the SRO and upholding the award; Court found that it is well established that, in the absence of evidence demonstrating that the parents failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim for tuition.); Wolfe v. Taconic Hills Cent. Sch. Dist., 167 21 F.Supp.2d 530 (N.D.N.Y. 2001)( the equities—requires a balancing of both parties’ conduct and interest—not merely the actions of the parent). There are no facts established here that show that the parent failed to cooperate or acted inequitably to interfere with the DOE’s ability provide FAPE.

Parent presented no evidence regarding allegations related to Compensatory Education claim.

This relief is therefore denied.

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 presented no specific evidence regarding special education transportation relief.

This relief of any specific special education transportation is therefore denied.

ORDER

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

2. [REDACTED] - [REDACTED] High School (UP) serves as an appropriate Student placement, for the 22-23 school year.

3. The DOE shall directly fund Student, [REDACTED] - [REDACTED] High School (UP), 22-23 Tuition, up to the amount of $[REDACTED].

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: February 28, 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

[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 I find the Parent meets their burden regarding inability to pay the UP Tuition outright, 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 UP tuition, for the 22-23 school year. I find the Parent is entitled to direct UP funding as Ordered below.