New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 591501 – NYC: 242284

FINDINGS OF FACT AND DECISION

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 01/23/2023

02/24/2023

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 01/23/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], Attorney

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 02/24/2023

(All present by video or telephone)

For the Student:

[REDACTED], Attorney

For the Department of Education:

NONE

DOCUMENTATION ENTERED INTO THE RECORD PARENT

PARENT

Exhibit Date Title Page(s) Entered A 11-15-2022 Due Process Complaint with Receipt 04 01/23/2023 B 08-17-2021 Ten Day Notice Letter w/ E-Receipt 03 02/24/2023 C 2021-2022 Tuition Agreement 01 02/24/2023 D 2021-2022 Related Services Agreement 01 02/24/2023 E 07-15-2022 Tuition Affidavit 01 02/24/2023 F 2021-2022 Final Attendance Report 01 02/24/2023 G 2021-2022 Class Schedule 01 02/24/2023 H 2020 Tax Return 03 02/24/2023 I Undated Program Description 01 02/24/2023 J 02/16/2023 [REDACTED], Assistant Principal 05 02/24/2023

K 02/22/2023 [REDACTED], Parent 02 02/24/2023

DEPARTMENT OF EDUCATION (DOE)

NONE

IMPARTIAL HEARING OFFICER

Entered 01/23/2023

I Notice of Appointment, 01/09/2023, 4 pages

INTRODUCTION

On 01/09/2023, 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 01/23/2023, to allow an opportunity for the DOE to defend against the allegations contained in the DPC.

Hearing continued, and concluded, on 02/24/2023.

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 2020/2021 school year. (Ex A 1)

Allegations include:

- On June 7, 2021 the DOE Committee on Special Education (CSE) held an Individualized Education Program (IEP) review for Student; - The IEP team classified Student as speech or language impaired; - The DOE recommended a 15:1 special class in a community school; - There were multiple procedural errors that singularly and cumulatively impeded this child’s right to a free, appropriate public education (FAPE), significantly inhibited parental participation in the decision-making process regarding the provision of a FAPE, and caused a deprivation of educational benefits; - Furthermore, the IEP is substantively inadequate and not reasonably calculated to enable the child to receive educational benefits; - The program and substantive IEP recommendations are not sufficient or appropriate for this child. The procedural errors inhibited the parents’ rights to be informed about and involved in the decision-making and challenge the IEP on substantive grounds; - The IEP team was invalidly constituted, and the DOE failed to conduct and consider the appropriate evaluative data; - The DOE’s last assessment of [REDACTED] was from 2017; - This testing should have been updated for the 2021-2022 school year, as Student was past due for a triennial review (Ex A 1); - The DOE has failed to conduct the mandatory triennial testing and has not fulfilled its responsibility to assess Student in all areas of suspected disability; - The failure to conduct the mandatory testing results in an IEP that fails to properly reflect, address, and remediate her needs. It also results in an insufficient program recommendation; - The program recommendation is not an appropriate or sufficient recommendation for Student; & - The IEP fails to provide sufficient supports, management needs, and goals to target Student’s primary area of special education needs. (Ex A 2)

Parent seeks relief that includes funding for Student’s unilateral placement (UP), at [REDACTED] (UP), which includes Prospective/direct funding for tuition and related services; or, in the alternative, tuition and related services reimbursement. (Ex A 3)

JURISDICTION

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

THE POSITION OF EACH PARTY

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

At Hearing, the Parent supported its position via uncontested Documentary Evidence. The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below: A 11-15-2022 Due Process Complaint with Receipt

Details Parent allegations and sought after relief.

B 08-17-2021 Ten Day Notice Letter w/ E-Receipt

Parent appropriately notifies the DOE of:

- Disagreement with the recent IEP meeting, of June 7, 2021; - Lack of a school location notice; - Intent to place Student at the UP; and - Intent to seek DOE funding for the Student placement, at the UP. Ex B 1)

C 2021-2022 Tuition Agreement

Student, 21-22, UP Tuition is set forth as a total of $[REDACTED].

This includes:

Tuition: $[REDACTED] Book and Locker Fee: $[REDACTED] Extracurricular Fee: $[REDACTED] (Ex C 1)

D 2021-2022 Related Services Agreement

Student Related Service, of Counseling, is provided at a rate of $[REDACTED] per session.

E 07-15-2022 Tuition Affidavit

Student 21-22 Tuition is set forth as: $[REDACTED], plus $[REDACTED], for Counseling services provided, for total of $[REDACTED]. F 2021-2022 Final Attendance Report Student is evidenced to have attended the UP, for the 21-22 school year.

G 2021-2022 Class Schedule

Student 21-22 class schedule includes: academics, counseling ,and some time devoted to non-secular activities (Bible Study/Jewish Laws and Customs).

H 2020 Tax Return

Parent adjusted gross income is evidenced to be $[REDACTED].

I Undated Program Description

General characteristics, of the UP, include:

- School for Girls is a special education program; - chartered by the New York State Education Department; - educates preteen and teenage girls with learning disabilities, attention difficulties and or psychosocial issues; - Students, who range in age from eleven to eighteen, are provided with an academic and extra-curricular program within their own cultural milieu; - The ultimate goals of UP’s intensive program are: to enable each student to achieve higher levels of performance in each academic area; - Individualized curriculum programs are tailored to the specific needs of each student commensurate with her potential to provide counseling and support in a warm, caring environment; - Staff are professional and dedicated to enhance and advance social skills; - Extra-curricular programs focus on skill building socialization, on varied creative therapeutic exercises and on guided interaction; - The program is comprised of five classes; - Class size ranges from 6-10 students with two teachers. The staff is comprised of special educators, an educational diagnostician, a student counselor and an art therapist; - The clinicians work in capacity as consultants to the teachers, related service providers and parents; - With small student to teacher ratio, UP provides highly individualized instruction to meet each student’s unique needs; - Report cards and individual assessment meetings are utilized to evaluate student’s performance and present annual goals and short term objectives, three times per annum; - teaching philosophy incorporates emphasis of direct instruction of basic skills as building blocks from the simple to the more complex; - Classes are given in the following subject areas; reading, writing, spelling, vocabulary, literature, mathematics, social studies, science, nutrition and health, current events, civics, economics, typing, computer lab, home economics, language, public speaking, Judaic studies, organizational, life and social skills; - Extracurricular programs include an active student government, weekend retreats, weekly clubs, annual trips, quarterly student newsletter, an annual creative writing journal, community outreach charity activities, and more; - UP program teaches our students to become active and independent learners; - In theory and practice, it is a program which maximizes the potential of each and every student; and - Curriculum varies depending on grade requirements.

J 02/16/2023 [REDACTED], Assistant Principal

Testimony provided includes:

- Witness experience and qualifications - Typical student to teacher ratio is 10 students to 2-3 teachers; - 1:1 instruction is provided as needed (Ex J 1); - UP staff take part in professional development and training (Ex J 1-2); - Student attended the UP for the 20-21 and 21-22 school years (Ex J 2); - UP team met and developed an appropriate Student program for the 21-22 school year; - Student challenges include: below grade level; struggles academically due to slow processing speeds and language delays; takes longer to retain information than many of her peers; memorization is difficult; social emotional difficulties, including lack of frustration tolerance and difficulty resolving conflicts with peers (Ex J 2); reading comprehension; making inferences; main idea (Ex J 3) - Student supports include: in-school counseling; small size of the school; support throughout the day; and a lot of attention and support, which allows Student to feel more comfortable in the4 classroom (Ex J 2); - For the 21-22 school year Student: Class had 5 students and 2 teachers; Students in the class had similar needs; Students in the class were at similar academic level and had similar challenges with processing and learning (Ex J 2) - Student Reading challenges included: reading comprehension; making inferences; main idea (Ex J 3); - Student Reading supports included: an additional assistant teacher during reading instruction; 1:1 Instruction with various reading programs; review of errors made during independent work; books read aloud to work on oral comprehension; and specific reading programs focused on Student’s specific reading comprehension challenges (Ex J 3); - Student made progress in Reading (Ex J 3); - Student Writing difficulties were addressed, with a focus on passing the English Regents; - Student Writing supports included various programs; 1:1 instruction; consistent repetition and reinforcement (Ex J 2-3); - Student is noted to have made progress in Writing (Ex J 4); - Student Math challenges included: comprehension of mathematical concepts; problem solving and computation (Ex J 4); - Student Math supports included: teacher created materials; vocabulary explicitly explained; and a focus on fundamental, important skills as Student needed more time to retain information: - Student is noted to have made progress in Math (Ex J 4); - Student received Counseling services, twice weekly and worked on frustration tolerance, emotional regulations, evaluating social situations, managing conflicts with peers, social skills, and coping mechanisms (Ex J 4); - Student is noted to have made progress via the Counseling services (Ex J 4); - Student received [REDACTED] instruction which accounted for approximately [REDACTED] of the school week (Ex J 5); - Student made clear progress during the 21-22 school year; and - Progress is attributed to the individualized supports delivered, by the UP, which enabled the Student to pass the Regents exams. (Ex J 5)

K 02/22/2023 [REDACTED], Parent

Testimony provided includes:

- Student IEP meeting took place, on 06/07/2021, and Parents expressed concerns with the recommendations made (Ex K 1); - Parent communicated concerns with the DOE (Ex K 1); - Student began the 21-22 school year, at the UP, because Parent felt the DOE program and placement were not appropriate (Ex K 2); - Parent signed contract with the UP, for Tuition and Related Services (Ex K 2); - Parents remain obligated for the payment of the Student’s, 21-22, UP Tuition; - Parents have not made any payment, to the UP, because tuition is a financial hardship; - The UP provided the program the Student needed, with a lot of support and attention, focused on teaching the reading and writing skills needed to pass the Regents; and - Student made very good progress and was happy in school. (Ex K 2)

FINDING OF FACTS AND DECISION

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

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

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

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at ^[130]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 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 evidenced neither the development of an appropriate IEP, nor placement, for commencement of the 21-22 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 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 G, H, I, J & K)

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

Parent is entitled to funding for the UP, 21-22, Tuition.

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

Parent provided appropriate Ten Day Notice. (Ex B)

Parent is obligated to pay for Student . 21-22, UP attendance. (Ex C & D)

Student, 21-22, UP Tuition is set forth as a total of $55,900.00, which includes:

Tuition: $[REDACTED] Book and Locker Fee: $[REDACTED] Extracurricular Fee: $[REDACTED] (Ex C 1)

Student attendance, at the UP, is also subject to the Related Services Agreement, which is utilized to implement Student Counseling, at a rate of $[REDACTED] per session. (Ex D) Student 21-22 Tuition is set forth as: $[REDACTED], plus $[REDACTED], for Counseling services provided, for total of $[REDACTED]. (Ex E) Testimony includes that the Student received [REDACTED] instruction, at the UPM, which accounted for approximately [REDACTED]% of the school week. (Ex J 5)

This results in a reduction in the fundable tuition amount as follows:

$[REDACTED] x . [REDACTED] = $[REDACTED]

Amount subject to DOE funding therefore is: $[REDACTED] plus $[REDACTED], for a total of $[REDACTED].

Student is evidenced to have attended the UP, for the 21-22 school year. (Ex F)

Parent provides evidence of limited income relative to being able to pay Student tuition, and await reimbursement. (Ex H)

Parents remain obligated for the payment of the Student’s, 21-22, UP Tuition. (Ex K 2)

Parents have not made any payment, to the UP, because tuition is a financial hardship. (Ex K 2)

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

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

Parent provides uncontroverted evidence relative to their financial capability. (Ex H & K 2)

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.

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

ORDER

1. The Department of Education (DOE) failed to offer the Student a FAPE for the 2021-2022 school year.

2. The DOE shall directly fund Student, 21-22,[REDACTED] (UP) Tuition, including related service of Counseling, in the amount of $[REDACTED].

3. 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 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 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