New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

ORDER

NAMES AND TITLES OF PERSONS APPEARING: January 9, 2023 March 3, 2023

REDACTED, Esq Attorney Department of

(Remote) Education

REDACTED, Esq. Attorney Parent

(Remote)

REDACTED, Esq Attorney Department of

(Remote) Education

REDACTED, Esq. Attorney Parent

(Remote)

REDACTED Parent

(Remote)

REDACTED Parent

(Remote)

Hearing Officer’s Findings of Fact, Decision and Order

INTRODUCTION

January 11, 2023 and March 3, 2023, I held a hearing for a school-aged child, REDACTED (“the student”). The hearings were held remotely.

The student is currently REDACTED old. For the 2022-2023 school-year the student is unilaterally placed at REDACTED (“ ”) (Parent’s Ex. A at 1, Ex. B at 1).

The parents, by their attorney REDACTED, Esq., filed an Impartial Hearing Request on October 4, 2022. The parents alleged that the Department of Education failed to provide the student with a Free and Appropriate Education (“FAPE”) for the 2022-2023 school-year. As a remedy, the parents asked, in relevant part, for reimbursement of the student’s 2022-2023 tuition at REDACTED and direct payment to REDACTED for any remaining balance (Parents’ Ex. A at 7).

I was appointed as Impartial Hearing Officer on December 19, 2022. At that time, the compliance date was February 2, 2023. I extended the compliance date twice at the request of both parties, first for the availability of witnesses and second, for time to review the transcript and evidence, and for the issuance of a Decision and Order.

The extensions were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations. Specifically, (a) when I was assigned to the case the student was attending the placement desired by the parents; (b) in accordance with due process, the parties were entitled to time to secure witnesses to participate in a hearing and to have this hearing officer review the transcript and evidence and issue a Decision and Order; (c) there were no financial or detrimental consequences likely to be suffered by either party by the delay; and (d) there was no prior delay in this case that impacted on the child’s education.

THE ISSUES REMAINING IN DISPUTE AT THE IMPARTIAL HEARING

At the conclusion of the hearing the remaining issues in the case are: 1) whether the Department of Education provided the student with a FAPE for the 2022-2023 school-year and if not; 2) whether REDACTED is reasonably calculated to enable the student to receive educational benefits during the 2022-2023 school-year; and 3) whether the equities favor the Department of Education or the parents.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

POINT I

The Department of Education’s Case

The Consultant Department of Education representative at the hearing, REDACTED, did not introduce any Exhibits into evidence or present any witnesses or testimony at the hearing. Nor did she cross-examine either of the parents’ witnesses (TR: 51). ^[1]

Conclusions of Law

The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment (“LRE”). A FAPE includes special education and related services designed to meet a child’s unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D) 34 C.F.R. § 300.13; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.347; Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-201 (1982). A school District offers a FAPE by developing an IEP and “providing personalized instruction with sufficient support services to permit a child to benefit educationally from that instruction.” Id. At 203; See R.E, v. New York City Dept. of Educ., 694 F.3d 167, 175 (2nd Cir. 2012). An appropriate placement is one that is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 188-189, 207; Florence County School District Four v. Carter, 510 U.S. 7, 14 (1993); Frank G., v. Bd. of Educ. of Hyde Park, 450 F.3d 356, 364 (2d Cir.2006), cert. denied, ___ U.S. ___, 128 S. Ct. 436, 169 L.Ed.2d 325 (2007). At an impartial hearing the Department of Education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. N.Y. Educ. Law §4404[1][c].

To meet its burden, the Board of Education must show that it recommended a program that is reasonably calculated to allow the child to receive educational benefits and that the recommended program is the LRE for the child. Rowley, 458 U.S. at 188-189; 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]. The IEP must and the program must be “likely to produce progress and not regression” and “afford an opportunity for greater than trivial advancement.” M.O. v. N.Y.C. Dept. of Educ., 793 F.3d 236, 23 (2d Circ., 2015), citing M.H. v. N.Y.C. Dept. of Educ., 685 F.3d 217, 224 (2d Cir. 2012).

Once a student’s needs are established, the IEP must provide for the use of appropriate special education services to address the child's special education needs, and establish annual goals and short-term instructional objectives which are related to the child's educational deficits. See R.E., 694 F.3d at 175. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an individualized education program recognizing that “the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between.” Endrew F. v. Douglas County School Dist. RE-1, 580 U.S. ___, 137 S. Ct. 988 at 999-1000 (2017) quoting Rowley, 458 U.S. at 202.

***

Since the Department of Education did not present any witnesses or testimony I find that did not meet its burden of demonstrating either that it provided the student with a FAPE for the 2022-2023 school-year or that it was not required to do so.

POINT II

The Parents’ Case

Findings of Fact

The student’s father testified by Affidavit (Parents’ Ex. P) as did REDACTED, the REDACTED at REDACTED (Parents’ Ex. Q). As noted, the Department of Education representative at the hearing did not cross-examine either of the witnesses (TR: 51).

A. BACKGROUND

Shortly before the declaration of the pandemic and corresponding school closures, the parents suspected that the student had a disability that was affecting his learning and contacted the Department of Education. An IEP meeting was scheduled for March 2020, but due to the school closures the meeting was never held. See Point III, infra. (Parents’ Ex. P at 1).

The family moved out of the city for the 2020-2021 school-year and the student attended the REDACTED School on REDACTED. The school’s Response to Intervention (“RTI”) team and the parents were concerned about the student’s attentional skills and behavioral regulation, and in February and March 2021, the school psychologist conducted a behavioral evaluation (Parents’ Ex. N at 19-22, Ex. P at 2-3). The family moved back to REDACTED for the 2021-2022 school-year. Since many of the public schools were still teaching remotely, the parents enrolled the student in the REDACTED School, a small private school in REDACTED. The school was not able to manage the student’s behavioral challenges or his inability to function in school without getting frustrated or upset. In November 2021, the parents took the student to REDACTED, Ph.D., for a Neuropsychological Evaluation (Parents’ Ex. N at 2-15, Ex. P at 2-3).

Dr. REDACTED diagnosed the student with Autism Spectrum Disorder Level 1 and Attention Deficit Hyperactivity Disorder (“ADHD”) Combined Presentation. Dr. REDACTED advised the parents that the student’s significant deficits in social communication and selfmanagement were impacting his learning and that he would be able to succeed in school only if he were moved from his general education setting to a more appropriate special education learning environment. Specifically, Dr. REDACTED recommended, among other things, a small special education school in which the student would be taught in a small class (or classes), in a structured. language-based setting with like peers, where he would be provided with one-to-one support in his areas of need, including the use of a multi-sensory approach to learning, throughout his school day. Dr. REDACTED also concluded that the student required a “wrap around social skills curriculum,” with educators trained to work with students who have communication difficulties, executive functioning issues, and self-regulation challenges. She stated that it is “imperative” that the student had the opportunity for accelerated coursework, particularly in math, and a differentiated learning model in which his teachers support his transition to independent selfmonitoring through cueing, refocusing and self-direction (Parents’ Ex. N at 11, Ex. P at 3).

After researching schools that reflected Dr. REDACTED’s recommendations the parents decided on REDACTED, and they enrolled the student there in January 2021 for the second half of the 2021-2022 school-year (Parents’ Ex. P at 3-4). The student remains at REDACTED for the 2022-2023 school-year, the subject of this hearing.

B. REDACTED

REDACTED is the REDACTED at REDACTED. REDACTED is a private, not-for-profit school for twice-exceptional ("2e'') students. A 2e student is one who has a diagnosed learning disability but who is also considered to be gifted. 2e students have high cognitive potential but are often unable to master curriculum to their potential in a traditional classroom. Gifted students who demonstrate clear evidence of having learning differences or difficulties are those students with Dyslexia, Attention Deficit Hyperactivity Disorder ("ADHD"), Autistic Spectrum Disorder, Dysgraphia and/or other learning issues (Parents’ Ex. Q at 1-2). During the current 2022-2023 school-year there are REDACTED students enrolled in the school, ranging in age from kindergarten to twelfth grade (Parents’ Ex. Q at 1).

REDACTED is a provisional member of The New York State Association of Independent Schools ("NYSAIS"). The school provides its students with a child-centered, empirically validated, humanities and STEAM (Science, Technology, Engineering, Arts, and Mathematics) driven education that empowers students with self-knowledge and problem-solving skills through a collaborative, scalable supportive, differentiated approach to learning (Parents’ Ex. Q at 3-4).

The classes are taught by teachers trained in special education and in gifted education. The training is supported by the school’s ongoing in-house professional development. Many of the teachers are New York State certified, and all are trained to work with the students who attend the school. REDACTED also employs various related services providers including, but not limited to two licensed Speech and Language Pathologists, three certified School Psychologists, and two licensed Occupational Therapists. There are also two Masters level learning specialists to work with the students as needed. The teachers and related services providers collaborate and work together to provide the students with support, both inside and outside of the classroom. In addition, the related services providers work with the teachers to embed the strategies they use with the students into all of the classes at school (Parents’ Ex. Q at 2-3).

The school curriculum provides instruction covering all of the content required by the Common Core Standards while modified in the speed, manner, and/or timing of delivery so that the students learn based on those standards, but at their own pace and based on their individual potentials. As a result, the expectations of a student can be above or below the grade level for the student's chronological age. The school employs research-based best practices that are flexibly deployed by teaching and therapy teams to grow the students’ organization/planning, failure/tolerance, perseverance, selfadvocacy, self-esteem, and empathy skills (Parents’ Ex. Q at 3).

The students are placed in multi-grade "bridge" classes that usually consist of two grades and no more than 12 students. Students are grouped based on various considerations including, but not limited to, chronological age, teachers' and students’ personalities, academic and social functioning, and student abilities. There is flexibility in the groupings that sometimes allows for exceeding the two-year grade limit based on a student’s abilities. The school tries to ensure that every student in a given class will be able to serve as a role model for his or her peers in some areas while at the same time, having peer role models in other areas (Parents’ Ex. Q at 4-5).

REDACTED employs a multisensory approach to learning. The school’s approach to classroom management includes positive behavioral intervention supports (“PBIS”), daily reviews with students emphasizing self-reflection, and Collaborative and Proactive Solutions ("CPS"), collectively helping students develop self/social awareness and communication skills, fostering flexibility and mutual respect, and Dialectical Behavior Therapy ("DBT'') (Parents’ Ex. Q at 5).

PBIS is an evidence-based, data-driven framework proven to reduce disciplinary incidents, increase a school's sense of safety, and support improved academic outcomes. The premise of PBIS is that continual teaching, combined with acknowledgement or feedback of positive student behavior will reduce unnecessary discipline and promote a climate of greater productivity, safety, and learning. PBIS schools apply a multi-tiered approach to prevention, using disciplinary data and principles of behavior analysis to develop school-wide, targeted, and individualized interventions and supports to improve school climate for all students (Parents’ Ex. Q at 5).

CPS is an evidence-based approach for understanding and helping students with concerning behaviors that interfere with learning. The strategy to reduce concerning behaviors aims to solve the problems that are causing the negative behaviors by working with the child. The CPS model does not rely on adult-imposed consequences to modify behavior. An important goal for, among others, educational providers, and therapists, is to identify the skills that an individual or student with concerning behaviors lacks, so that they can work with those students to develop the needed skills and help them meet expectations (Parents’ Ex. Q at 5-6). CPS works on the premise that students respond poorly to problems and frustrations because of flagging skills and not because of flagging motivation, and thus motivational strategies and using a system of rewards and punishment is not likely to improve the situation. If unsolved problems are causing concerning behaviors, the school believes that the best way to reduce those behaviors is by collaborating with the student to solve the problems that are causing the behaviors in a way that makes the student a fully invested participant (Parents’ Ex. Q at 7).

DBT is designed to help students increase their emotional and cognitive regulation by learning about the triggers that lead to reactive states and helping to assess which coping skills to apply in the sequence of events to help avoid undesired reactions. DBT skills have been demonstrated to be effective in helping adolescents manage difficult emotional situations, cope with stress, and make more responsible decisions. REDACTED employs the DBT Steps-A (Skills Training for Emotional Problem Solving for Adolescents). All of the psychologists at the school are trained in DBT StepsA and they collaborate with the teachers to integrate the program into classroom routines. Movement breaks are available to individual students as needed throughout the day to allow for selfregulation and all students have a daily recess period (Parents’ Ex. Q at 7-8).

C. The Student

The student entered REDACTED in in January 2022 for the second semester of the 2021-2022 school-year and is currently a second grade equivalent student for the 2022-2023 school year (Parents’ Ex. P at 1, Ex. Q at 1). Prior to the impartial hearing Mr. REDACTED reviewed the student’s file, which includes, among other things, documents that his family provided when he entered REDACTED, including the Neuropsychological Evaluation, a February 2021 and March 2021 building-level behavior evaluation conducted at the REDACTED, his first term report card from REDACTED from September to December 2021, and his REDACTED progress reports. Mr. REDACTED also spoke with all of the student’s teachers and other providers who worked with him during the 2021-2022 school year, as well as those who are working with him during the current, 2022-2023 school year. Mr. REDACTED has also observed the student. He confirmed that the information in the student’s Neuropsychological Evaluation conforms to his observations of the student at REDACTED (Parents’ Ex. Q at 8-9).

Mr. REDACTED described the student as “an anxious child.” The student has, among other things, attentional difficulties and difficulty maintaining focus if not properly engaged and supported. The student can be characterized as oppositional, especially when confronted with challenges and non-preferred activities. The school views the student’s oppositional behaviors as “his way of telling the world that he is overwhelmed and that he needs support so he can see his way around and function even when confronted with challenges” (Parent’s Ex. Q at 9).

The student’s anxiety affects all aspects of his learning and functioning. He does not process information from his environment at the same speed as his peers, and he often becomes overwhelmed. When he is not provided with the appropriate support the student reacts in inappropriate ways that can be interpreted as his being argumentative, confrontational, or belligerent. Mr. REDACTED views this behavior as “crying out for support.” As a result, the student has difficulty forming social relationships, and is often unable to engage in conversations and cooperate with peers without support. The student has poor initiation skills, especially with unfamiliar people. He also has diminished frustration tolerance, even for a student of his age. His sensory issues can easily overwhelm him and cause him to become dysregulated. When feeling challenged, the student can withdraw or respond in ways that appear to be hostile or challenging to his peers and to adults (Parents’ Ex. Q at 9-10).

The student’s poor frustration tolerance tends to manifest itself in his becoming avoidant and quarrelsome to avoid 'having to engage in activities or tasks when he feels anxious or when he worries that he may not be able to perform up to expectations. When presented with challenging tasks, nonpreferred classes or activities, the student’s anxiety causes him to try to retreat from his environment by changing the topic through confrontation and acting resistant He may try to isolate himself by pushing others away, either with his words or physically, and he will also behave in other ways he believes will allow him to distract attention from, and avoid, the task at hand (Parents’ Ex. Q at 10).

During the 2022-2023 school year, REDACTED has been working with the student to improve these difficulties through DBT skills that are adapted for him. The student’s teachers and therapists are assisting the student to become more cooperative with them and with his peers, and to increase his levels of perseverance, particularly when it comes to engaging in tasks in non-preferred areas. The student works on these skills in weekly one-to-one counseling sessions with a school psychologist. The skills are also embedded in his weekly social and emotional skills class. These problem-solving techniques have helped the student to better deal with his frustration and anxiety (Parents’ Ex. Q at 10).

The student has issues with his self-esteem and self-worth. He is very aware of his learning challenges and of what distinguishes him from his similarly-aged peers outside of REDACTED. He also has executive functioning challenges. Specifically, the student has poor time-management skills and has a difficult time completing tasks, especially those involving multi-step instructions. In addition, the student does not always understand boundaries. For example, he can be impulsive, and he processes information and his environment slowly. The student lacks a mature awareness of social inhibitions, has difficulty transitioning from one activity or environment to another, has sensory processing and integration issues and he needs to be allowed to move and "fidget'' to self-regulate and keep himself from becoming overwhelmed by his environment (Parents’ Ex. Q at 10-11).

Mr. REDACTED testified that REDACTED provides the student with a small, structured, language-based classroom, in a small nurturing special education environment with a small student population. He is receiving specialized instruction throughout the entire school day. from teachers and other providers who are specially trained to work with children like the student, who have pronounced challenges, in terms of their social and communication skills.

The student is placed with peers who have good cognitive potential and abilities but who also have learning issues and challenges that are similar to his own. REDACTED also provides the student with positive behavioral and academic role models who encourage his curiosity and to keep him engaged in and enthusiastic about the learning process (Parents’ Ex. Q at 11). As a second grade equivalent student, his classes are co-taught by two teachers with Master’s Degrees in special and/or gifted education (Parents’ Ex. I at 1).

The teachers and other special education providers at REDACTED understand the student’s learning differences and are patient with him when it comes to his eccentricities, quirks, and idiosyncrasies. The school provides the student with a predictable schedule and support to transition from one activity or environment to another in order for him to maintain self-regulation, avoid frustration and overstimulation, and maintain a sense of calm (Parents’ Ex. Q at 11-12).

Mr. REDACTED testified that REDACTED is providing the student with all of the supports that he requires, particularly CPS and DBT and that as a result, he made, and is continuing to make, significant progress across all domains - academic, socially, organizational, self-advocacy and self-help, behavioral, and time management skills during the 2022-2023 school year. Although the student may be wary of trying new things and may seem impatient, especially when he feels challenged, he will now more willingly engage in what he previously considered to be challenging tasks (Parents’ Ex. Q at 10,12).

To address the student’s anxiety, the school provides him with a consistent schedule and a calm nurturing environment in which he is not punished for the manifestations of his disability. The student is not overwhelmed by the number of students or adults with whom he has to interact in the hallways, during classes, or in other areas where he is required to be during the school day. The student’s homeroom cohort and most of his classes consist of six to seven students, with no more than 12 students in any class, and he has been able to form trusting relationships with all of his teachers. With encouragement from his teachers the student has developed, and is continuing to develop and learn, self-advocacy skills and to better tolerate challenges (Parents’ Ex. Q at 12).

When the school-year began in September 2022, the student was consistently overwhelmed and unable to function when confronted with assignments. At the time of the hearing he was better able to ask his teachers for help in breaking down tasks he sees as complicated into more manageable components, and he is working on how to do so on his own. As a result, the student’s periods of dysregulation have decreased and his ability to independently complete tasks has improved and is continuing to improve (Parents’ Ex. Q at 12).

The student’s time management issues and issues with completing homework are being addressed by working with the student to create an individual plan that involves teachers limiting their writing expectations for him terms of homework assignments. For example, while the student is required to do all of the work that is expected of him and his classmates, he is allowed complete the work through alternative methods, such as by reading and synthesizing his assignments and then presenting responses to questions orally. Although homework completion remains a challenge for the student, the accommodations make it possible for him to complete more assignments and to be more independent and consistent with homework completion than at the beginning of the year. The reduction in his level of anxiety regarding what is expected of him when he is not in school has decreased and he is now more focused and able to complete tasks in a timely and efficient manner both in and out of school (Parents’ Ex. Q at 12-13).

The student’s individual counseling sessions are focused on helping him establish routines to support himself in dealing with time management challenges. For example, he has learned how to plan his nighttime and morning, so that he can get enough sleep and be on time and ready for school. His frustration tolerance is further being addressed through the use of PBlS, DBT, and CPS. For example, the staff intervenes before the student becomes frustrated and collaborates with him to get though all of his challenges. They use praise and point out what he is doing correctly, without criticizing him for those challenges and difficulties that are the manifestations of his disability and that he cannot yet control, and he is learning to recognize those things that remain challenging to him. As a result, the student has been and is able to participate more actively in his classes and in the overall school community. Counseling and modeling, from teachers, other special education and related service providers, and peers, has assisted the student in developing better social skills and learning that that others might have perspectives and opinions that, although different from his, are just as valid (Parents’ Ex. Q at 13).

The student can now initiate conversations with his peers and with new individuals better than he was able to do at the beginning of the school-year. He can also better maintain conversations, even regarding non-preferred subjects, without becoming overwhelmed and argumentative (Parents’ Ex. Q at 14).

In order to help the student maintain focus and better regulate his emotions, he is permitted to “move around” as needed, and movement breaks and physical activities are included in his schedule so he can calm his body before becoming dysregulated. His impulsivity is addressed in the classroom and in counseling sessions. The sessions focus on turn-taking-and conversational exercises, which allow the student to realize that he can wait for whomever he is engaged with to finish what he or she is saying before responding. He has gained confidence and now understands-that it is often preferable to wait his turn (Parents’ Ex. Q at 14).

Academically the student’s schedule includes, among other subjects, ELA, math, social studies, and science (Parents’ Ex. I). Cognitively, the student has difficulty with inferential skills. To address that issue the school uses materials that focus on being able to identify the details of a text and, based on those details, he is expected to make an informed prediction about what he thinks might happen next. At the beginning of the school year the student would not listen for meaning. At the time of the impartial hearing he was attentive to details to help him make an educated guess about what might happen or why something is happening in a story (Parents’ Ex. Q at 14-15).

The student has difficulties with writing that are both physical and cognitive in nature. To assist him with the physical aspects of writing, occupational therapy techniques are embedded into all aspects of his program. The student’s expressive language and writing difficulties are addressed through Speech and Language Therapy and supports embedded in the classroom. All of the teachers who incorporate any degree of writing into the student's classes are teaching the student routines from Self-Regulated Strategy, Development (SRSD). He is being taught to use SSRD strategies to plan and organize his oratory and expository writing, including using a strategy to unpack a prompt and a TIDE (topic introduction, important evidence, detailed examination, ending) graphic organizer to gather ideas in preparation for drafting. The student has learned to effectively use an organizer in response to a prompt or to questions related to a text (Parents’ Ex. Q at 11, 15).

At times, when the student reads about a topic of interest in preparation for a written response, the teachers encourage him to discuss the content of the text rather than proceed with the writing activity which could be, and was often, taxing. The student benefits from the verbal rehearsal of ideas about texts, and from verbal or visual prompts from the teacher to proceed with the session agenda and complete an assigned writing task. The student is also provided with support from speech and language and occupational therapists to address the anxiety and difficulty with frustration tolerance that leads him to rush through the writing and editing process, and which. previously caused him to try to avoid writing (Parents’ Ex. Q at 15).

Everyone at REDACTED who works with the student collaborates, coordinates, and strategizes with his family ensure that intervention plans for the student’s behavior are consistent, and that all parties are supporting and assisting the student with his behavioral and academic challenges (Parents’ Ex. Q at 9).

Mr. REDACTED opined that REDACTED for the 2022-2023 school year is an appropriate placement for the student and that the school is allowing him to make significant educational progress (Parents’ Ex. Q at 15). The student’s father has seen significant improvement in the student’s ability to manage his anxiety, request movement or sensory breaks, and tolerate sensory stimuli. The student has also shown improvement in his academic skills, his ability to attend and in his social skills. He can now verbalize his needs instead of internalizing them, which in the past has negatively impacted on his ability to communicate and learn (Parents’ Ex. P at 9).

The student’s tuition at REDACTED for the full 2022-2023 school-year is $REDACTED. The parent’s paid the tuition in full (Parent’s Ex. L, Ex. M).

Conclusions of Law

Under the second criterion of the legal standard, a parent bears the burden of proof with regard to the appropriateness of the services that she obtained for the student for the three school years in question. N.Y. Educ. Law §4404[1][c]; M.S. v. Board of Education of the City of Yonkers, 231 F.2d 96, 104 (2nd Cir. 2000); Application of a Child with a Disability, Appeal No. 11-053. In order to meet that burden, the parent must show that the educational services were "proper under the act" [IDEA]. Sch. Comm. of Burlington v. Mass. Dept. of Educ., 471 U.S. 359, 370 (1985) i.e., that the educational program is one which met the child’s special education 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. Parents cannot be denied reimbursement because a private school does not meet the standards required for a state educational agency such as developing IEPs or employing faculty members that are state certified. Rather, the parents 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” and that the placement is likely to produce progress and not regression. Ultimately, the issue turns on whether a placement - public or private - is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 188-189, 207; Florence County School District Four v. Carter, 510 U.S. 7, 14 (1993); Frank G., v. Bd. of Educ. of Hyde Park, 450 F.3d 356, 364-365 (2d Cir.2006), cert. denied, ___ U.S. ___, 128 S. Ct. 436, 169 L.Ed.2d 325 (2007); Walczak v. Florida Union Free Sch. Dist., 142 F.2d 119, 130 (2d Cir. 1998).

No one factor is dispositive of in determining the propriety of a unilateral placement. Rather, courts must consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. Frank G., 450 F.3d at 364-365. While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parent are entitled to an award of tuition reimbursement. Rafferty v. Cranston Public School Comm., 315 F.3d 21, 26-27 (1st Cir. 2002); M.S, 231 F.3d at 105.

These Conclusions of Law are based on the credible testimony and evidence detailed above with citations to the record.

It is clear that the student requires a small and supportive educational environment that provides him with counseling and behavior interventions as well as individualized attention and instruction. This conclusion is supported by Dr. REDACTED’s November 2021 Neuropsychological Evaluation and the testimony by both Mr. REDACTED and the student’s father. REDACTED is consistent with the recommendations in Dr. REDACTED’s Neuropsychological Evaluation as it provided, and is providing, the student with an education in a small, structured classroom within a small school environment where he has access to special education throughout the day. REDACTED has staff experienced and trained to work with intelligent children with executive functioning and self-regulation challenges like the student, and he is grouped with peers of similar intelligence and appropriate role models. As Dr. REDACTED recommended, the school provides he student with social skills and educators trained to work with intelligent students who have communication difficulties, executive functioning issues, and selfregulation challenges, and the differentiated curriculum allows for the student’s accelerated coursework where appropriate.

The school also provides the student with occupational therapy, speech-language therapy, and counseling, all of which are geared to the student’s unique needs. The individualization of the student’s program allows him to take movement or sensory breaks as needed, and the school is addressing the student’s anxieties and stress related to writing by developing a system whereby he can discuss the content of a text rather than commit to a related writing activity.

Mr. REDACTED and the student’s father testified that the student benefited from attending REDACTED and that the student is making progress during the 2022-2023 schoolyear (TR: 174-177). They both opined that REDACTED is an appropriate placement for the student and the Department of Education did not provide any evidence or testimony to suggest otherwise. Indeed, the Department of Education representative at the hearing declined the opportunity to cross-examine the witnesses (TR: 51).

Thus, I find that the parents met their burden of demonstrating that REDACTED is providing the student with an appropriate education during the 2022-2023 school-year by addressing his unique educational needs and providing him with an educational benefit.

POINT III

Equitable Considerations

The IDEA 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 Dept. of Educ., 758 F.3d 442, 461 (2d Cir. 2014); Application of a Student with a Disability, No. 17-004.

I have determined that the Department of Education did not provide the student with a FAPE for the 2022-2023 school-year, and that REDACTED is an appropriate placement for the student. The remaining question on the equities is whether the parents are entitled to tuition reimbursement for the student’s current attendance at REDACTED.

In a March 24, 2022 letter to REDACTED, the Committee on Special Education ("'CSE”) for Region REDACTED and to REDACTED, the CSE Chairperson for Region REDACTED, the parents referred the student for special education services for the 2022-2023 school-year. In their letter, the parents related that in early 2020 they had referred the student to Ms. REDACTED to be evaluated for special education, that the CSE had scheduled an IEP meeting, and that the IEP meeting did not go forward because of the school closings in March 2020 due to Covid. The parent advised the Chairpersons that they had moved to REDACTED for the 2020-2021 school-year where the student attended the REDACTED and that they enrolled him in REDACTED, a private school, when they moved back to REDACTED at the beginning of the 2021-2022 school-year. At the time of their referral the student was attending REDACTED. The parents provided, among other documents, Dr. REDACTED’s Neuropsychological Evaluation and reports from REDACTED and REDACTED. The parent also gave explicit permission for the Department of Education to conduct additional evaluations and asked for a public school placement (Parents’ Ex. N at 1, Ex. P at 4-5).

The initial evaluation to determine if a student is a student with a disability must be completed within 60 calendar days of receiving parental consent for the evaluation. 8NYCRR § 200.2(7)(1). The timeline from consent to implementation - the arrangement of appropriate programs and services for the student - is 60 school days. 8NYCRR §200.4(e).

As noted above, the parents sent consent on March 24, 2022 (Parents’ Ex. N at 26-27). The parents did not receive a response. The student was not evaluated and an IEP meeting was not held. On August 16, 2022, the parents, by their attorney REDACTED, Esq., sent a 10-day Notice Letter to both Ms. REDACTED and Ms. REDACTED stating that the parents had not received a response to their referral. By then, both the 60 day limit for evaluations and the 60 school-day limit for implementation had expired (Parents’ Ex. B, Ex. C).

In his letter Mr. REDACTED advised that the Department of Education failed to provide the student with an appropriate IEP or placement for the 2022-2023 school-year and that absent such, the parents would enroll the student at REDACTED and request tuition reimbursement (Parents’ Ex. B, Ex. C). The 2022-2023 REDACTED contract signed by the parents allowed for a withdrawal up to October 15, 2022 if the parents accepted a Department of Education placement (Parents’ Ex. M at 10, Ex. P at 6).

In a letter dated August 22, 2022, REDACTED, of the Special Education Unit of the Office of General Counsel, advised the parents that the case was not appropriate for settlement and that if they were still interested in obtaining a unilateral placement or program at the District’s expense, they should file a Due Process Complaint (Parents’ Ex. D). The student began the 2022-2023 school-year at REDACTED and on October 4, 2022 the parents, by Mr. REDACTED, filed the Due Process Complaint (Parents’ Ex. A).

The Department of Education did present any evidence or testimony to rebut the parent’s testimony and evidence on this issue or to otherwise contest the equities of the case. I find that the Department of Education failed in its obligation to timely evaluate the student in order to determine his eligibility for special education services, and failed to provide him with a placement if warranted by those evaluations.

Thus, for the 2022-2023 school-year I find that the equities favor the parents.

ORDER

Based on the above findings of fact, it is hereby Ordered that: 1) Within 30 days of the date of this Decision and Order the parent is to provide proof of the student’s attendance at REDACTED during the 2022-2023 school-year and the amount of tuition charged and paid for by the parent; 2) Within 30 days of the receipt of the documents specified in (1) above, the Department of Education is to reimburse the tuition paid by the parent and pay any remaining tuition directly to REDACTED. The total amount of the tuition payment shall not exceed $REDACTED.

SO ORDERED

Dated: April 4, 2023

Rona Feinberg

Rona Feinberg, Esq.

Impartial Hearing Officer

EXHIBITS

A. DEPARTMENT OF EDUCATION: The Department of Education did not enter any Exhibits into evidence. PARENT: Impartial hearing request 10/4/22 8 pages

B. Ten-day letter 8/16/22 5 pages

C. Corrected ten-day letter 8/16/22 5 pages

D. DOE response to documents “B” and “C” 8/22/22 1 page

E. E-mail correspondence with the DOE regarding the Doe’s acknowledgment of receiving the hearing request and the relief & 11/1/22 being sought 10/31/22 2 pages

F. Notice of appearance 11/9/22 1 page

G. E-mail from the DOE advising of the appointment of an Impartial Hearing Officer 12/19/22 1 page

H. Notice of appearance 1/11/23 1 page

I. REDACTED program overview 2022-2023 3 pages

J. Weekly schedule Undated 1 page

K. Attendance report 1/6/23 1 page

L. Proof of payment of tuition & 10/20/22 1/25/23 2 pages

M. Enrollment agreement 3/13/22 & 3/14/22 2022-2023 20 pages

N. Letter to REDACTED and REDACTED transmitting reports, requesting an IEP, and consenting to evaluations with attached Nov. 2021 neuropsychological evaluation, building-level behavior evaluation, 2020-2021 report card 3/24/22 27 pages

O. REDACTED progress report Jan. 2022 22 pages

to. June 2022

P. Affidavit of REDACTED 2/17/23 10 pages

Q. Affidavit of REDACTED HEARING OFFICER: The Hearing Officer did not enter any Exhibits into evidence. 2/21/23 24 pages

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 athttp://www.sro.nysed.gov.

Footnotes

[1] Initially, Ms. REDACTED asked for an adjournment because the hearing representative originally assigned to the case had not submitted disclosure and because the Department of Education’s witness was unavailable. Mr. REDACTED objected to an adjournment, and after an extensive discussion I determined that the District’s witness might be appropriate for rebuttal (TR: 30-31). Ms. REDACTED subsequently stated on the record that upon further review of the parents’ documents and her understanding of the case, she was withdrawing her prior adjournment request and was “happy to proceed” to a full hearing. Specifically, Ms. REDACTED stated that the District would not present a Prong I case or request to present a rebuttal witness, but would rely on her cross-examination of the parents’ witnesses (TR: 46-48).