New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 241114

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 01/06/2023

02/03/2023

Actual Record Close Date: 02/10/2023

Decision Date: 02/10/2023

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 01/06/2023

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], Attorney

For the Department of Education: NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 02/03/2023

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], Attorney

For the Department of Education: NONE

DOCUMENTATION ENTERED INTO THE RECORD PARENT

EX DATE DOCUMENT TITLE PAGE(S) Entered

A 10/31/22 Due Process Request (DPC) 4 01/06/2023

B 8/24/21 Ten-Day Notice (TDN) 4 01/06/2023

C 10/26/21 Follow-up Notice 4 01/06/2023

D 2021-2022 Annual Goals and Objectives 7 01/06/2023

E 12/29/21, 5/22/22 Progress Reports - 21-22 3 01/06/2023

F 12/20/21 Speech Language Therapy (SLT) Report 2 01/06/2023

G 12/14/21 Occupational Therapy (OT) Report 2 01/06/2023

H 12/16/21 Counseling Report 1 01/06/2023

I 9/9/21 Tuition and Related Services Contract 5 01/06/2023

J 2021-2022 Class Schedule 1 01/06/2023

K 2020 Tax Return 2 01/06/2023

L 3/30/22 Affidavit of Payment 1 01/06/2023

M 1/30/23 Affidavit of [REDACTED], Teacher 7 02/03/2023

N 1/30/23 Affidavit of [REDACTED], Mother 3 02/03/2023

DEPARTMENT OF EDUCATION (DOE)

None

IMPARTIAL HEARING OFFICER

Entered 01/06/2023

I Notice of Appointment, 12/28/2023, 4 pages

II Pendency Form Signed, 12/28/2022, 1 page

Entered 02/03/2023

III Consolidation Order, 01/31/2023, 3 pages

INTRODUCTION

On 12/28/2022, 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 01/06/2023, to allow an opportunity for the DOE to defend against the allegations contained in the DPC. The DOE did not appear.

Hearing continued, and concluded, on 02/03/2023.

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

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

Due Process Complaint (DPC) alleges a failure of the DOE, via Individualized Education Program, of 05/20/2021, to offer the Student a Free Appropriate Public Education (FAPE), for the 21-22 school year. (Ex A 1)

Allegations, relating to the 05/20/2021 include:

• • “The team was invalidly constituted including only one participant from the CSE (Committee on Special Education). The IEP team did not include a school psychologist or general education teacher. The individual from the CSE who participated in the meeting did not have any personal knowledge of [Student] or his needs except that she had conducted other IEP reviews for [Student]. She had never met [Student] or evaluated him. The IEP team failed to conduct and consider the appropriate evaluative data.” (Ex A 1);
• • “While [Student] is classified as speech/language impaired, the CSE has failed to evaluate [Student] in the areas of speech and language.” (Ex A 1);
• • The IEP fails to accurately reflect information provided;
• • The IEP lacks specially designed instruction (Ex A 2); and
• • Parent received a school placement recommendation, contacted the school, and has not received a response. (Ex A 3)

Parent seeks relief that includes: Direct/prospective funding for Unilateral Placement at [REDACTED] (UP) tuition and related services; or, in the alternative, tuition and related services reimbursement. (Ex A 3)

The DOE did not defend any offer of a Free Appropriate Public Education (FAPE), for the Student, for the 21-22 school year.

At Hearing, the Parent supported its position via uncontested Documentary Evidence, which is found to be credible and supportive of the Parent’s position, as considered below:

A Due process complaint, 10/31/22

Details allegations and sought after relief, relating to 21-22 school year.

B Ten-day notice, 8/24/21

Parent provides appropriate TDN, to the District, which includes:

• • I have received the IEP from the May 20th IEP meeting. The DOE has again recommended the 12:1:1 class for [Student] despite the concerns presented by [Student]’s teacher and me;
• • I also have a school placement and will consider it. However, I cannot accept the recommendations at this time;
• • As a result, I must have [Student] start at [UP] and seek funding for this placement because I do not agree with the IEP recommendations;
• • [Student] was in a smaller class with more teacher support, but the DOE recommended its 12:1:1. This is not appropriate;
• • [Student] needed a smaller special education class with more teacher support. He is so easily distracted that the larger ratio is not appropriate for him;
• • He also was at a kindergarten and first grade level for reading and math so he needed more support and modifications to the third grade curriculum;
• • I do not believe that the goals and management needs do this or are specific enough;
• • The DOE has recommended [A Public School]. I will reach out to the school to learn more about it, but until I can please send me a class schedule, curriculum, and information about the class profile. I would like to know if the class has multiple grades in a single class, what the curriculum is, and what the classifications are in the classroom;
• • [Student] needs to be in a class that provides instruction at his level and not on grade level and he needs students who share his needs in the classroom;
• • I am also concerned about periods of the day without special education teacher support because [Student] needs special education support throughout the day. (Ex B 1)

C Follow-up notice, 10/26/21 Parent follows up the TDN.

Parent adds that she had contacted the recommended school and was advised that the school was full, so the Student could not be placed there.

Parent was also advised that she could not obtain information about the recommended placement since the Student was not registered there.

Parent advised the District of her concerns, and that Student placement would continue, at the UP.

D Annual goals and objectives, '21-'22

UP sets forth Student goals, addressing academic areas, which include:

• • Language Arts (Ex D 1-2);
• • Writing (Ex D 2);
• • Handwriting (Ex D 2-3);
• • Math (Ex DE 3); and
• • [REDACTED] Reading and [REDACTED] Handwriting (Ex D 6-7).

E Progress report, various dates, 21-22

Student progress, and supports, are noted in areas of:

• • Language Arts [Student] is reading at Fountas and Pinnell Level E independently. He can read words with blends and is currently working on decoding multisyllabic words with closed syllables. [Student] can comprehend a story that he reads on a literal level. He can identify the setting and main characters in a story and can make predictions on what he has read. With teacher prompting, [Student] can retell a story in sequential order. He can answer wh questions about a story as well as use pictures as context clues. However, [Student] has difficulty answering inferential questions based on what he has read. Programs Used: Wonders (McGraw-Hill) 1.1, 1.2, 1.3. Wilson steps 1, 2, 3.1, 3.2
• • Writing [Student] can introduce his writing with a topic sentence and summarize with a concluding sentence as well as write a five-sentence paragraph with teacher guidance. He is currently working on correctly using capitals and periods in a sentence. In addition, [Student] has difficulty expressing ideas in a complete sentence. [Student] demonstrates difficulty forming his letters with proper spacing and formation.
• • Math [Student] is working in a first-grade math book. [Student] can compute single and two-digit addition and subtraction equations without regrouping. He understands and recognizes place value to 100. [Student] can identify shapes and geometric concepts. He can solve simple story problems independently yet requires teacher assistance when solving multi-step problems. (Ex E 2)
• • [Student] is a kind and sweet boy who is well liked by his peers. With prompting and encouragement [Student] participates and remains focused on the lessons.
• • e He has made progress in all academic areas this year.
• • Student benefits from a small class and individualized attention.
• • (Ex E 3)

F Speech-language therapy (SLT) report, 12/20/21

Sets forth areas of Student weakness, progress towards goals, new goals, and recommends continuing SLT. (Ex F 1-3)

G Occupational therapy report, 12/14/21

Sets forth areas of Student weakness, Student goals, and recommends OT, twice weekly, for 30-minute sessions, as one individual and one group session. (Ex G 1-2)

H Counseling report, 12/16/21

Sets forth areas of Student weakness, progress towards goals, and new goals. (Ex H 1)

I Tuition and related services contract, 9/9/21

Student 21-22, Ten Month Tuition, is set forth as $[REDACTED]. (Ex I 2)

Student Related Services are set forth as $[REDACTED], and include weekly sessions of:

• • OT: 2 thirty-minute sessions;
• • SLT: 2 thirty-minute sessions; and
• • Counseling: 2 thirty-minute sessions (Ex I 5)

Parent is obligated to payment under the contract, via signature. (Ex I 2, 4 & 5)

J Class schedule, '21-'22

Student Academic and Related Services Schedule.

Total School Week includes:

2,040 Minutes

285 minutes of [REDACTED] Instruction (Praying/Holidays)

[REDACTED] related instruction includes about 14% of each week. (Ex J)

K Tax return, 2020

Parent adjusted gross income is set forth as $[REDACTED].00.

L Affidavit of payment

Total Tuition is shown as $[REDACTED], and the UP has received $[REDACTED], thus far, towards Student 21-22 Tuition.

Balance remains, of $[REDACTED].00.

M Affidavit of [REDACTED], Teacher, 01/30/2023

UP Student Teacher provides Testimony that includes:

• • Witness qualifications;
• • General characteristics, of the UP, include: full time special education school for students who have learning disabilities, speech language impairments and attentional difficulties; grades K through 8; staff receives ongoing professional development and training; workshops and meeting to discuss behavioral techniques, language development and how to address special needs; head classroom teachers supervise and train assistant teachers; a;; staff are trained in special education and implement consistent specialized techniques tailored to students’ needs; related services of SLT, OT, Physical Therapy (PT), and Counseling are available, via licensed and credentialed providers (Ex M 1);
• • Witness is familiar with the Student, and was his classroom teacher for the 21-22 school year;
• • Student:
• • Presents with weaknesses in language, academics, attention, focus and executive functioning skills; and difficulty with thinking critically, making inferences, using text evidence, acquiring new vocabulary, spelling, grammar and expressing ideas through writing (Ex M 2)
• • For the 21-22 school year was in a class of 7 students with a teacher, as assistant, and another assistant for math and reading; students had similar needs; all students have difficulty with attention and need a lot of redirection and support; student primarily have attentional and executive functioning issues that impact ability in the classroom; students also have similar language, social emotional and behavioral needs (Ex M 2)
• • Student was assessed for reading and math;
• • Goals and a curriculum were developed for the Student (Ex M 2);
• • Student needs were addressed via: small class throughout the day; extra support to stay engaged and focused; one-on-one support; curriculum taught at the Student’s level; modified pacing; repetition and review; guidance and prompting for expressive language; multi-sensory approach with simple language; all learning was scaffolded; trained special education support throughout the day including for lunch and specials (Ex M 2-3);
• • Witness reviewed qualifications of staff providing services to the Student (Ex M 2)
• • Specific supports were provided in the area of Reading, to address skills tat included decoding, reading and comprehension, and Student made progress (Ex M 3);
• • Specific supports were provided in the area of Writing, to address skills, and the Student made progress (Ex M 3-4);
• • Specific supports were provided in the area of Math, with supports such as a modified curriculum, and the Student made progress (Ex M 4);
• • Student received related services of OT, SCLT and Counseling (Ex M 4);
• • Student is noted to have made progress, with support, for each related service (Ex M 4-6);
• • The UP provides 13.97 of its time devoted to [REDACTED] instruction (Ex M 5);
• • Student receives special education support the entire day, at the UP;
• • Student progress is measured throughout the year;
• • Overall, the UP served as an appropriate placement, for the Student, who made progress;
• • Student would not be appropriately placed in a larger class with less adult support;
• • Student needs the small group and extensive one-to-one support provided by a smaller class ratio; and
• • The UP created a curriculum attuned to the Student’s individual need and that has allowed him to make progress (Ex M 6)

N Affidavit of [REDACTED], Mother, 01/30/2023

Student’s mother provides Testimony that includes:

• • A review of the Student’s educational history;
• • Participation in the Student’s 05/20/2021 IEP meeting;
• • Disagreement with the DOE recommendation, of a 12:1:1 class;
• • The IEP team would not answer any questions about the specific setting;
• • When the school placement was received contact was made with the proposed school;
• • A letter outlining the Parent’s concerns was submitted to the DOE (Ex B);
• • Parent communicated with the proposed placement, but information would not be provided unless the Student was registered at the school;
• • Witness did not want to register the Student unless she could learn if the school could provide what was set forth in the IEP;
• • Witness again wrote to the District, did not receive a response, and continued Student placement, at the UP (Ex N 1);
• • The UP has been an appropriate placement for the Student;
• • Student receives special education support and related services, at the UP;
• • Student is doing well, and making progress, with the UP provide supports;
• • Parent has paid $[REDACTED] of the Student’s 21-22 UP Tuition;
• • The Tuition is a financial hardship for the family, and Witness points to submitted tax return;
• • Witness understands the if she is unsuccessful in the Hearing Process, the family is ultimately responsible for payment of the 21-2 UP Tuition (Ex N 2)
• • Witness seeks funding of the UP Tuition with Related Services; and
• • Witness believes the UP is the proper setting, for the Student. (Ex N 3)

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 2021-2022 School Year

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

The DOE has not evidenced development of an appropriate IEP, and placement, for the commencement of the 21-22 school year.

DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 21-22 school year.

I find the DOE failed to offer the Student a FAPE for the 21-22 school year.

UP Placement for the 21-22 School Year

Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 21-22 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 D, E, F, G, H, I, J, M & N)

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 21-22 school year.

TUITION FUNDING 21-22 School Year

The DOE has denied a FAPE to the Student for the 21-22 school year.

Parent is entitled to funding for the UP, 20-21, Tuition.

Parent provided appropriate TDN. (Ex B & C)

Student 21-22, Ten Month Tuition, is set forth as $[REDACTED]. (Ex I 2)

Student Related Services are set forth as $[REDACTED], and include weekly sessions of:

• • OT: 2 thirty-minute sessions;
• • SLT: 2 thirty-minute sessions; and
• • Counseling: 2 thirty-minute sessions (Ex I 5)

Parent is obligated to payment under the contract, via signature, totaling $[REDACTED]. (Ex I 2, 4 & 5, Ex L)

Total Tuition is shown as $[REDACTED], and the UP has received $[REDACTED], thus far, towards Student 21-22 Tuition.

Balance remains, of $[REDACTED].00.

[REDACTED] related instruction includes about 14% of each week: (Ex J & Ex M 5)

• • Student 21-22, Ten Month Tuition: $[REDACTED]. (Ex I 2)

Less 14% [REDACTED] Instruction: -$[REDACTED].00

District Fundable Portion: =$41,190.00

• • Related Services: $[REDACTED] (Ex I 5)

Total District Fundable Amount: $51,990.00

Parent testifies she is unable to pay the UP tuition based on her limited income. (Ex N 2, Ex K)

Parent has been able to pay $[REDACTED] towards the Student’s, 21-22, UP Tuition.

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 appropriate DOE alternative.

Parent provides uncontested evidence, and Testimony, relative to financial capability. (Ex N2 & K)

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 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 21-22 school year, as Ordered below.

ORDER

• • The Department of Education (DOE) failed to offer the Student a FAPE for the 21-22 school year.
• • The DOE shall directly fund Student, [REDACTED] (UP), 21-22 Tuition, inclusive of related services, up to the amount of $[REDACTED].
• • The DOE shall provide Parent with any documents or forms necessary to facilitate payment under this Order, within ten days of the date of this Order.
• • 4. This decision is subject to appeal and review by the State Review Officer.

DATED: February 10, 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.