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CASE NUMBER: 592352 - NYC: 242972
FINDINGS OF FACT AND DECISION
Student’s Name?:[1] [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: # [REDACTED]
Hearing Requested by: [REDACTED] (“Parent 1”)
Request Date/Date Complaint Filed: 11/29/2022
Date(s) of Hearing: 03/02/2023, 03/21/2023, & 03/22/2023
Actual Record Closed Date: 06/12/2023
Date of Decision: 06/12/2023
Date of Distribution if Different than Decision Date: n/a Hearing Officer: Harry A. Christodoulou
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 2, 2023:
For the Student:
[REDACTED] (hereinafter referred to as “Parent 1’s representative”)
For the Department of Education:
[REDACTED] (hereinafter referred to as “District’s representative”)
[REDACTED] (hereinafter referred to as “DOE’s Witness”)
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 21, 2023:
For the Student:
Parent’s representative
[REDACTED] (hereinafter referred to as “Parent 2”)
[REDACTED] (hereinafter referred to as “Parent’s Witness”)
For the Department of Education:
District’s representative
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 22, 2023:
For the Student:
Parent’s representative
[REDACTED] (hereinafter referred to as “Parent 2”)
For the Department of Education:
District’s representative
BACKGROUND AND PROCEDURAL HISTORY
Student is a [REDACTED]-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). Student’s eligibility for special education supports and services is not in dispute.
On November 28, 20227, Parent 1, through Parent 1’s representative firm, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA (Ex. P-A). I was appointed on January 23, 2023, to preside over the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1) to determine the claims in the DPC concerning Student’s special education program.
It is asserted in the DPC that, based on numerous procedural and substantive grounds, the DOE failed to offer Student a free and appropriate public education (“FAPE”). Parent 1 sought, inter alia, a finding that the DOE denied Student a FAPE for the 2022-2023 school year (“SY”), an order that the DOE reimburse/directly fund Student’s placement at the Attending School (defined on page 35) for the 2022-2023 SY, that the DOE conduct a Functional Behavior Assessment (“FBA”) and Behavior Intervention Plan (“BIP”), that the DOE conduct Student’s reevaluation, that the DOE provide or fund Student’s mandated related services, and any further relief deemed just and proper (Ex. P-A-4, & P-A-5).
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA?[3] and its implementing regulations,* and the New York State Education Law?[5] and its implementing regulations.® Impartial Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act if delegated the authority by the Local Education Agency (LEA). The DOE delegated to the New York City Office of Administrative Trials and Hearings (“OATH”) the authority to adjudicate due process complaints under Section 504.[7] The final relief sought is subsumed under the IDEA and therefore Section 504 is not addressed separately in this decision.
320 U.S.C. § 1400 et seq. 434 C.F.R. § 300 et seq. > Educ. Law Art. 89 § 4404 et seq. © 8 NYCRR § Part 200.
7 NYC Exec. Order No. 20 lune 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504delegation-Signed.pdf.
PARTIES’ POSITIONS AND CASES PRESENTED
District’s representative made an opening statement substantiating how and on what basis the DOE affirmatively asserts that it offered Student a FAPE for the 2022-2023 SY, from having a duly constituted CSE team, holding a timely review of Student’s program where the team considered various evaluations and reports, to the program that was recommended, as well as providing prior written notice (“PWN”) and a school location letter (“SLL”). It was also asserted that Parent 1 would not be able to maintain the burden of proving the appropriateness of the unilateral placement and that the equities weigh in the DOE’s favor. The DOE therefore requests that all Parent 1’s relief be denied (T. P54-55).
The DOE, through the District’s representative, submitted fourteen documents in support of the DOE’s case (T. P20, P24). There were no formal objections to any of the documents being admitted at the main hearing (T. P20). District’s representative called one witness to testify at the IH, and reserved the right to call a rebuttal witness if Parent/s were called to testify (T. P56). After Parent 2 testified, District’s representative confirmed that the DOE would not be calling a rebuttal witness and rested the DOE’s case (T. P144).
Parent 1, through the Parent 1’s representative, submitted nine documents in support of the Parent 1’s case, which were admitted to the record (T. P24). There were no formal objections to any of the documents being admitted at the main hearing (T. P20). There was one affidavit in Parent 1’s disclosure (Ex. P-H), which was initially held back from being admitted as District’s representative had reserved the right to cross-examine the Affiant (defined on page 35), which right was not exercised, and therefore the affidavit was admitted (P. 25, P146, & P147).
Both parties submitted written closing briefs (Ex. IHO-II, & IHO-III). All exhibits that are admitted to the record are listed below (see Appendix B).
ISSUES IN DISPUTE
The DOE did not concede that it failed to provide Student with a FAPE for the SYs at issue (Prong I) and presented a case to prove that the DOE did offer Student a FAPE. Accordingly, whether Student was provided a FAPE for the SY at issue must be determined. It is asserted in the DPC that the Attending School (define on page
35) is an appropriate and necessary placement for Student (Prong II) (Ex. P-A-4); and the DOE relies upon equitable considerations to assert that the equities do not favor Parent 1 (Ex. IHO-II-13, IHO-II-14, & IHO-II-15). Accordingly, Prongs I, Il, and Ill must be determined.
PREVAILING PARTY
Parent 1 is the prevailing party, having found that Student was denied a FAPE for the 2022-2023 SY, that the Attending School was (and is) an appropriate placement, and that there are no equitable considerations barring Parent 1’s relief.
LEGAL FRAMEWORK
A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits®.[8]
If a procedural violation is 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’.[9]
The IDEA directs that, in general, an IH officer's decision must be made on substantive grounds based ona determination of whether the student received a FAPE?°.[10]
A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction"'’.[11] To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP’.[12] Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material"[13]
??.
920 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007]. 1090 U.S.C. § 1415[f] [3] [E] [i]. 1 Rowley, 458 U.S. at 203.
The IDEA does not automatically require the provision of school services during the summer months for all students with disabilities; rather, such services must be provided when they are a necessary element of a FAPE for the student.[14]
The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim.[15]
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement or direct funding for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement — which is applicable in this case.[16]
FINDINGS OF FACT AND DECISION
[1] Denial of a FAPE: The Supreme Court has found that “/a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.[17] ” The DOE submitted documentary evidence and called one witness to testify in an attempt comply with its Prong | burden and offer such an explanation. I have sought to determine if the program provided for the 2022-2023 SY was reasonably calculated to enable Student to make progress appropriate in light of Student’s circumstances, based on a preponderance of all the evidence on record. In making this determination, I am mindful that school districts are not required to “maximize” the potential of students with disabilities,[18] *® but must provide “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity ” ) . greater than mere ‘trivial advancement.”” (my emphasis[19]
III.
The IEP must have been “reasonably calculated to provide some ‘meaningful’ benefit.”*°[20] Moreover, any afterthe-fact evidence on record which was unavailable to the CSE should not be considered in the determination and cannot be used to assess the CSE's recommendations at the time they were made.[21] 74
DOE’s Witness testified (T. P27-P53), inter alia, as to: Witness’ job title, namely school psychologist; Witness’ educational background, credentials, and work experience; Witness’ duties and responsibilities, which currently includes conducting psychoeducational evaluations, classroom observations, case managing IEP and turning five meetings, conducting evaluations and assessments, such as FBAs, psychoeducational evaluations, socio-emotional testing, behavioral assessments, and adaptive living testing, as well as creating plans for students who come in that do not have placements; and Witness having a team that she works with, including a social worker, and a special education teacher.
Witness’ familiarity with Student, having previously ‘case managed’ and conducting many observations at the Prior School (defined on page 35), including psychoeducational evaluations in the school, and that although Witness did not personally get to meet Student, Witness has handled Student’s case, is very familiar with the Prior School, and did have telephone conference meetings with Parent 1.
Witness’ participation at the IEP meeting that took place on April 22, 2022, which was a reevaluation; how the team had an updated psychoeducational evaluation, which took place in-house by Witness’ colleague in January 2022 within the three-year mandated timeframe, and had requested from the Attending School updated progress reports in all areas of related services; how the team also incorporated all of the Parents’ and school’s concerns at the time of the meeting; how Witness did not receive any private evaluations from Parent 1.
One of the exhibits disclosed by the DOE is Student’s IEP that was developed for Student for the SY in issue (Ex. DOE-4) (hereinafter referred to as “The IEP”). The IEP was developed pursuant to an IEP that took place on April 4, 2022, and had as its projected implementation and projected annual review dates as July 6, 2022, and April 3, 2023, respectively. The disclosure also includes DOE’s PWN and SLL (Ex. DOE-12, & DOE-13, respectively). These documents are addressed to Parent and it is confirmed in the DPC that the DOE provided Parent 1 with both documents (Ex. P-A-3).
District’s representative detailed the relevant regulations and case authority setting out the standards to be applied in determining whether a FAPE had been provided to a student (Ex. IHO-II-3, IHO-II-4, & IHO-II-5), and addresses specific assertions raised by Parent 1 as to why there was a denial of a FAPE (Ex. IHO-II-5 through IHOI-11).
The CSE team was duly constituted
It is asserted in the DPC (Ex. DOE-1), inter alia, that it is not clear that the CSE team was properly composed.
The IDEA requires a CSE to include the following members: the parent(s); one regular education teacher of the student (if the student was, or may be, participating in the regular education environment); one special education teacher of the student or, where appropriate, not less than one special education provider of the student; a district representative; an individual capable of interpreting instructional implications of evaluation results; at the discretion of the parent or district, other persons having knowledge or special expertise regarding the student; and if appropriate, the student.”?,[22] While not explicitly required in the IDEA, State law and regulation also requires that a CSE include a school psychologist.[23] ”?
According to the Attendance Form, the IEP minutes on record (Ex. DOE-5-1, & DOE-6-1), and DOE’s Witness (T. P38-P39), Parent 2 attended the IEP meeting, together with DOE’s Witness who acted in two capacities, namely District Representative and School Psychologist; Soeech Therapist; Occupational Therapist, Classroom Teachers, the BCBA, and Educational Director (all are defined on page 35).
Based on the confirmed attendance of participants at the IEP meeting, I find that the assertion in the DPC that the CSE team might not have been properly composed (or it being unclear) is without merit (Ex. IHO-II-5).
The CSE had sufficient evaluative material from which to make an appropriate recommendation (and the recommendations made)
It is asserted in the DPC, inter alia, that:
2220 U.S.C. § 1414[d][1][B]; Educ. Law § 4402[b][1][a]; and 34 CFR 300.321[a]; 8 NYCRR 200.3[a][1].
U.S.C. § 1414[d][1][B].
“Under the IDEA, an IEP must contain a statement of the student’s present level of academic achievement and functional performance. This statement must contain specific, measurable, individualized information about the student’s needs as a result of his or her disability. In the student’s case, this type of specific, measurable information is lacking. This also raises the question of whether the CSE has met its obligation to administer the necessary evaluations that could form the basis for the development of an appropriate IEP for the student.
The Department of Education failed to appropriately evaluate this student in all areas of suspected disability. ...
In addition, there is no specific, measurable, individualized information in the IEP regarding what the student’s functioning and needs are in related service areas. This also raises the question of whether the CSE appropriately evaluated the student’s needs in these areas, as is its obligation.
The behavior goals do not address the Student’s specific maladaptive behaviors. The IEP team did not rely on any behavior data which is collected from a formal Functional Behavior Assessment” (Ex. P-A-3, & P-A-4).
A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation”;[24] however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary.22>, A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities.[26] ”°
Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP.2” In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.[28]
24 34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4].
25 34 CFR 300.303[b][1]-[2]; 8 NYCRR 200.4[b][4].
26 8 NYCRR 200.4[b][3].
2820 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6]
[x].
A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status.??[29] An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services' needs, whether or not commonly linked to the disability category in which the student has been classified.[30]
*°
The DOE disclosed a Consent for Additional Assessments (Ex. DOE-2), which documented that after a review of Student’s current educational and evaluation information, “it has been determined that additional assessments are required as part of a reevaluation”. It also documented that the attached PWN explains the proposed reevaluation and the assessment(s) that would be conducted (Ex. DOE-2-1). The PWN that was attached, if there was one, was not disclosed. It appears from the face of the document that Parent 2 signed the consent form on the same date it was created. The DOE also disclosed a psychoeducational evaluation dated January 21, 2022 (“the Psychoeducational”), being the same date as the Consent for Additional Assessments (Ex. DOE-14). It is recorded in The IEP that Student was referred for the Psychoeducational by Parent 1 as part of a reevaluation process (Ex. DOE-2-2).
The IEP documented that the “Assessment” used to develop The IEP included the Psychoeducational*',[31] an Education Progress Report dated February 2022, a Speech and Language (“S&L”) Report dated February 2022, and an Occupational Therapy (“OT”) Progress Report dated February 2022 (Ex. DOE-2-1, & DOE-2-2).
District’s representative asserts, inter alia, in the DOE’s Closing Brief (Ex. IHO-II-5 thru IHO-II-7) that:
“At the April 2022 meeting, the CSE reviewed an updated DOE Psychoeducational dated January 2022.
DOE Ex. 14, Tr. Pg., 32. According to school psychologist, [DOE’s Witness], the IEP team also reviewed progress reports in related services (OT and Speech) and academics. Based on this data, the team develop a comprehensive picture of the [S]tudent’s learning profile including both the [S]tudent’s strengths and deficits. [DOE’s Witness] testified that while the CSE attempted to administer testing on the student and was unsuccessful; the data, nonetheless, helped to inform the CSE.
29 20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6] [vii]. 39 34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018.
As per DOE Exhibit 8, [DOE’s Witness] testified that the school’s progress report was extensive covering all areas of need: receptive language, expressive language, speech production, articulation, feeding and academics. Tr. Pg. 36. Based off the progress reports, the team gleaned the following with respect to [Student]’s cognitive functioning: (1) [Student] was struggling with discriminate skills, being able to identify objects and things that belong to [Student]; and (2) [Student] was functioning ona very low level academically in ELA and math (pre-kindergarten) despite [Student’s] age denoting struggles academically and with cognition. Id. York City Dept. of Educ., 11-cv-00870 (SDNY, 11/9/2011); J.F. and L.V. v. New York City Dept. of Educ., 12-cv-02184 (SDNY, 11/27/2012).
With respect to the [S]tudent’s social functioning, the parent had reported improvement with socialization, as documented in the IEP. DOE Ex. 4-4.[32]
Parent’s representative asserts in the Parent’s Post Hearing Closing Statement (Ex. IHO-III-4, IHO-III-5, & IHOIIl-8) that:
“[DOE’s Witness] did claim that she felt that she had all the necessary information to make a valid IEP recommendation for [Student]. (Transcript Page 35). On cross-examination [DOE’s Witness] could not confirm that she had a doctor’s letter confirming that [Student] is a child with a diagnosis of autism. There was also no vision or hearing reports submitted to the CSE and no attempts by CSE to arrange evaluations for [Student] in these areas.
The IEP which was developed for the student in question [Student] is not likely to produce progress because no evaluations concerning [Student’s] vision and hearing functioning were administered. It was the responsibility of the New York City Department of Education to determine [Student’s] present levels of functioning in both hearing and vision and include this information and updated accurate goals concerning vision and hearing in [Student]’s IEP.
SY.
The issues that impact on [Student] in the classroom are [Student] has a visual impairment, [Student] has a double diagnosis of cortical visual impairment, which is a brain based visual impairment, as well as a hemanhiomas, right heminopia, which means [Student] cannot see on the right side of each eye. That will track the way [Student] is able to see out of [Student’s] eyes.”
It is noted in the IEP that, according to Parent, Student suffered a stroke at birth that affected Student’s hearing, that Student is deaf in Student’s right ear, and has hearing in Student’s left ear. In terms of vision, Student does not have peripheral vision (Ex. DOE-4-5). It is also documented as part of the Management Needs that Student needs Hearing Education Services and Vision Education Services (Ex. DOE-4-5). For hearing and vision the IEP recommended Hearing Education Services, individual, English, 2 times 30 minutes, Separate Location Provider’s Room, and Vision Education Services, individual, English, 1 times 30 minutes, Separate Location Provider’s Room (Ex. DOE-4-19).
Not only were no assessments done for vision and hearing, the IEP also does not adequately address Student’s disabilities in these areas, especially how teachers and providers in the classroom should be addressing Student’s learning challenges resulting therefrom.
It is documented in the S&L Progress Report that: Due to Student’s hearing impairment all instructors sit to Student’s left to allow for maximum potential in terms of hearing and communicating with others. It is also mentioned that Student’s vision impairment in the left quadrant of both eyes may hinder Student’s ability to scan all words on Student’s SGD, as well as images displayed in front of Student, as well as that all instructors (at the Prior School) make sure to appropriately place anything in front of Student to allow for accurate scanning and reduce placement bias (Ex. DOE-7-1).
Areas of concern demonstrated by Student included the inability to search to find a person who is talking, indicated by no turning of head to find the voice, inability to understand what the clinician wanted when Student extended Student’s hands and said, “Come here,” Student’s inability to interrupt the activity when the clinician called Student’s name evidenced by not stopping playtime or showing any sign of movement toward the clinician, inability to look at objects or people the caregiver points to, and inability to respond to an inhibitory word (e.g., No), and inability to understand a specific word or phrase without the use of gestural cues (Ex. DOE-7-3).
Student benefits from visual and verbal support when discriminating words on Student’s SGD due to Student’s visual impairments and natural head tilt. Student will state a word on Student’s SGD based on placement bias, so Student requires redirection to scan Student’s entire screen to state the word Student intended to. For instance, Student will state “salad” rather than “chicken fingers” because of the location of the placement of these words on the SGD. Student demonstrates stronger receptive language skills when Student is engaged or motivated. When completing a task Student is not motivated by, Student often does not look at the speaker or the activity in front of Student. Student will attempt to throw these items and won't adhere to directions. Student also resists keeping Student’s head up at the table while eating when not motivated to do so. Student does not usually discriminate between different voices (e.g., playful vs. firm). For instance, when Student is not complying with instruction and clinicians/instructors demonstrate a firm voice
Student does not usually react. Rather, Student will continue to attempt to throw items and demonstrate other behaviors such as laughter (Ex. DOE-7-4).
It is documented in the OT Progress Report that whilst Student’s visual impairment does not impede Student’s ability to reach for items on Student’s desk or in higher planes, Student’s difficulties in sensory processing and modulation across multiple areas can be seen throughout the day. When working on any task that requires holding an object, such as using a dot marker or throwing a bean bag (Ex. DOE-10-3, & DOE-10-4). During tabletop activities, Student requires physical assistance to place and keep Student’s right hand on Student’s desk and to use it to stabilize materials such as paper when doing a coloring or dot-marker task (Ex. DOE-10-4).
Even if the DOE were afforded the benefit of the doubt regarding the need to conduct a Vision and Hearing assessment, as opposed to merely relying upon the Prior School’s reports, I find that the IEP fails to provide adequate strategies, supports, redirection, and goals to adequately address Student’s needs in these areas in the classroom. It appears that the CSE team merely sought to replicate services provided by the Prior School, without any incorporating into the IEP any meaningful substance to provide teachers and providers in the classroom the information needed to adequately support Student’s learning. Not only did the DOE cater for Vision and Hearing Education Services outside of the classroom, but it did not even provide the same duration[33] ofthese services that Student was receiving from Prior School which had been shown to produce progress. It is documented in the S&L Progress Report that Student presents with a positive prognosis with therapy, and has already made notable improvements since the beginning of the school year in all areas (Ex. DOE-7-10).
Not only was The IEP lacking in terms of Hearing and Vision content including appropriate supports and services, but it also did not contain sufficient supports and services insofar as Student’s need for assistive technology (“AT”) was concerned.
The CSE team determined that Student did need an AT device and/or service, which was also recommended for use in Student’s home (Ex. DOE-6). In fact the one goal that did anticipate visual support would have had Student by nine months spontaneously tracking and requesting a functional object that was not in Student’s direct line of sight using Student’s AAC device (Ex. DOE-4-17). The IEP however only provided for a full time static display, speech generating device (“SGD”), individual service, daily, at school/home (Ex. DOE-20). As part of the team’s determination that Student would participate in an alternative assessment on a particular State or district-wide assessment of student achievement, the team determined that Student required “educational support systems such as but not limited to, assistive technology, personal care services, health/medical services, or behavioral intervention” (my emphasis) (Ex. DOE-4-23).
It is documented in the S&L Progress Report that Student is a nonverbal, intentional communicator who is currently using the SGD Nova Chat to communicate (Ex. DOE-7-1). It also documents that Student does not independently obtain Student’s device or use it to comment or engage in more than one conversation exchange at the time (Ex. DOE-7-10). Even if the DOE were afforded the benefit of the doubt regarding the need to conduct an AT assessment, as opposed to merely relying upon the Prior School’s reports*’,[34] The IEP did not provide adequate strategies, supports, redirection, and goals to adequately address Student’s needs in this area in the classroom.
Although the IEP catered for an SGD, there was no discussion according to Parent 2 at the IEP meeting as to what type of devices Student would utilize (T. P137). Parent 2 also testified that the Attending School trained the aide at home (a factor contributing to my finding regarding Prong II), and the aide knows exactly what to do with the pictures or screens on the device, and then they send it back to the school whenever there is another goal to be met or whenever they need instruction they add it on to the device, and it goes back and forth from home to school (T. P137). Despite the CSE team recommending the SGD device for use at school and home, Student was not assessed to determine the adequacy of the “SGD device”, what device would be best, what programs would be needed, etc., for the Proposed School placement (defined on page 35 below), together with the supports that would need to have been in place there, or whether Student and/or Parents (or Student’s aide) and/or teachers needed AT training and none was recommended in The IEP.
It is documented in the S&L Progress Report that Student pockets food due to Student’s head tilt which causes excess residue in Student’s left buccal cavity. Residue is also left on Student’s palate frequently. Strategies such as taking frequent sips of water between bites of food, as well as keeping Student’s head straight for the entirety of mealtime have been implemented to improve this skill by reducing the amount of residue post swallow. Student’s feeding must also be monitored to prevent overstuffing that could lead to aspiration. Student’s attempts to take larger bites of food than deemed appropriate and will eat at an excessively rapid pace if Student is not monitored (Ex. DOE-7-10). Whilst I note that a full time health paraprofessional for ambulation was recommended as an individual supplementary service, the CSE team did not provide any feeding therapy services in the IEP, let alone the 5 times per week, individual, for 45 minutes per session as was recommended (Ex. DOE-7-10). This recommendation was merely rejected despite the DOE having conducted no feeding evaluation of its own.
Not only do I find that the recommendations made and the program developed to be inadequate based upon the evaluative material before the CSE team, sufficient to provide Student with meaningful educational benefits, but I also find the only assessment that was conducted by the DOE, namely the Psychoeducational, defective ina material respect.
During cross-examination DOE’s Witness testified (T. P46-P49), inter alia, as to: How there was an attempt to administer the Wechsler Intelligence Scale for Children, explaining in detail as to what that would entail; how the report documented that the attempts at determining nonverbal cognitive functioning etc. were abandoned when Student did not interact with the testing materials appropriately; how “the psychologist said this is probably not going to work for this student, and | can’t test their 1Q based on standardized tests”; how Student exhibited little to no understanding of what was being asked of Student and therefore the evaluator noted thereafter shifting to interviewing Parent 2 via the Vineland Adaptive Behavior Scale; and how this was not a student who can be tested with a regular standardized test, and that’s why alternate assessments were recommended.
How Student is recommended for a SGD on Student’s IEP, but that DOE’s Witness did not know if Student brought it to the evaluation; how, after looking at the Psychoeducational, how DOE’s Witness did not know if Student had an SGD at the time of the evaluation and also did not know if Student currently used one; how parents are typically asked to bring the relevant SGD device with them if the student is using one to help communicate; and how DOE’s Witness initially assumed that the SGD wasn’t helpful, but after being asked by Parent 1’s representative where it states in the report that it wasn’t helpful or that Student had the SGD (and after looking at the report), conceded that she did not know.
How DOE’s Witness was also assuming based upon the psychologist being trained, but ultimately conceded that she did not know as she was not there in the room at the time when the testing was done, and significantly that if the SGD was there and if it was important, it would have been reported.
Based upon DOE’s Witness’ testimony and the contents of the Psychoeducational, I am unable to find that Student had access to and used either Student’s SGD or any other SGD at the time of the evaluation and the DOE did not prove otherwise. This would have been material to the testing that was done and without it, it throws into question the reliability of the testing results and the recommendations made by the CSE team.
It is documented in the S&L Progress Report that Student’s Diagnosis (defined on page 35) and that accommodations are needed due to vision and hearing impairments documented elsewhere in the report. It also documents that the standardized procedure was modified and therefor the results reported in the S&L Progress Report do not yield a norm referenced score (Ex. DOE-7-2). An example of such an accommodation was documented, for example, it is noted that Student’s performance revealed severe impairments in matching a spoken word with a given image or object but that Student’s visual impairment could have impacted the results of this assessment, and that the clinician was careful to display images in front of Student appropriately, however it could not be determined whether Student’s responses were valid or if Student was pointing to the image that was directly in front of Student. This was indicated by Student continuously pointing to the images in the same position on each page (positions 2 or 3). Evidently, it was reported, that the results of this assessment could be invalid. Without appropriate accommodations in place to ensure meaningful engagement by Student, the evaluator’s findings in the Psychoeducational could equally be invalid.
While the CSE is required to consider recent evaluative data in developing an IEP, so long as the IEP accurately reflects the student's needs, the IDEA does not require the CSE to exhaustively describe the student's needs by incorporating into the IEP every detail of the evaluative information available to j t.2°> Given however that the “Wechsler Intelligence Scale for Children — Fifth Edition (WISC-V): Subtests attempted and abandoned” as part of the tests administered in preparing the Psychoeducational (Ex. DOE-14-1), and that there DOE had not conducted a Hearing, a Vision, and/or a feeding evaluation, I am unable to find that The IEP accurately reflects Student’s needs.
FBA & BIP:
The purpose of an FBA is to isolate a target behavior and develop a hypothesis regarding the function of the target behavior. A target behavior is one that interferes with a student's ability to progress in the curriculum and to achieve the student's IEP[27] goals. Once the target behavior is identified and the hypothesis developed, a positive BIP can be prepared to address the target behavior with strategies and interventions, if necessary, or the target behavior can be addressed using a more informal approach”*®.
Aside from the specific circumstances in which either the IDEA or state law requires an FBA (or the one circumstances where a BIP is required), not applicable here, IEP teams have discretion whether to conduct an FBA (and generally gives the IEP team a discretion to determine when a BIP is necessary for a student to receive a FAPE). Because IEP teams have an obligation to provide FAPE to students with disabilities, they also must conduct an FBA if they determine that doing so is necessary to develop an appropriate IEP*’. A district may also deny a student a FAPE by developing an inappropriate BIP.?8
District’ representative asserts in the DOE’s Closing Brief that the “/EP further notes that the [S]tudent does not exhibit any behavior that would impede [Student] or [Student’s] classmates’ access to the curriculum. DOE Ex. 4-6. Contrary to the [PJarents’ assertion, afn] FBA/BIP was not warranted in this case, as the [S]tudent did not exhibit any behaviors necessitating this evaluation. Parent’s Ex. A-2. Therefore, the Hearing Officer should find that the CSE had sufficient evaluative data before them to make an appropriate program recommendation in light of [Student]’s documented needs” (Ex. IHO-II-7).
The record does not support the assertions and findings proposed. The IEP documented that Student would continue to decrease Student’s frequency of negative behaviors, that Student will present with less aggression towards others and reduce the frequency of self-injurious behaviors, and that Student will be taught to use Student’s words and not throw items (Ex. DOE-4-4). Parent 2’s comment that Student was learning, when Student was at the Prior School, to express Student’s feelings in other ways than scratching was also documented in The IEP (Ex. DOE-4-4). Despite these statements regarding Student’s behaviors recorded in The IEP, the CSE team determined that Student neither needed strategies, including positive behavioral interventions, supports, and other strategies to address behaviors that impeded Student’s learning or that of others, nor a BIP (Ex. DOE-4-6).
3° Broward County Sch. Bd., 110 LRP 38160 (SEA FL 05/07/10). 37 C.F. v. New York City Dep't of Educ., 62 IDELR 281 (2d Cir. 2014). See also J.C. v. New York City Dep't of Educ., 67 IDELR 109 (2d Cir. 2016, unpublished) where a district's decision to forgo an FBA when the student began to act out at school did not rise to the level of a denial of FAPE because the IEP adequately identified the behavioral impediments and implemented strategies to address the behavior.
It was documented in the IEP Meeting Minutes as part of the School’s Comments that the BCBA works on Student’s behaviors. They are working on decreasing objects being thrown and physical aggression. They are trying to reduce these negative behaviors by improving Student’s communication skills (Ex. DOE-6-3).
It was documented in the Prior School’s S&L Progress Report that Student will sometimes engage in behaviors when attempting to prompt Student during playtime and mealtime, such as resisting tactile prompts, laughing, attempting to scratch or hit (lightly); however, overall, Student benefits from prompting to keep Student’s head up and maintain appropriate posture to promote improvements in eye-contact (Ex. DOE-7-2). It also noted that Student usually rejects undesired propositions or items behaviorally by throwing items or by pushing items away (Ex. DOE-7-7), and that when completing a task that Student is not motivated by, Student will often not look at the speaker or the activity in front of Student, but rather attempt to throw these items and will not adhere to directions as easily. It was noted that Student also resists keeping Student’s head up at the table while eating when Student is not motivated to do so (Ex. DOE-7-9). The Prior School had a detailed S&L goal for Student dedicated to decreasing Student’s frequency of engaging in challenging behaviors (Ex. DOE-8-5).
The Prior School also had a Positive Behavior Support Plan that was updated on January 21, 2021 (Ex. DOE-9-1). It documents as part of an FBA the target behavior as ‘non-compliance’ and secondary behavior as ‘aggression’. It defined the behavior and provided a hypothesis therefor. It documented that “[flollow up data collected hypothesize the same function for both behaviors, while aggressive acts serve a secondary self-stimulatory behaviors. More recent observations and analyzed data indicate that these functions are still maintaining Student’s inattention/refusal behaviors and also serve an attention seeking function”. The plan also proposed alternative behavior to replace the challenging behaviors through Differential Reinforcement of Alternative behaviors, which provided a “treatment package” that included “embedded visuals schedules which increases [Student’s] ability to remain on task and awareness with expectations. Additionally, throughout the school day positive practice of ready to learn behaviors for [Student] is proactively supported, displaying overall foundational skills. [student] was explicitly taught to attend to instructions, providing continuous reinforcement throughout the school day in order to decrease target behaviors” ... “a variety of visuals, graduated guidance, and modeling,” .. “[f]requent sensory replacements are also provided to [Student] through the use of [Student’s] sensory diet. Planned ignoring for instances of target behaviors was used in order to redirect Student while using functional communication as a replacement skill through Student device to increase independence”, as well as “functional communication training”, “the inclusion of providing a variety of individualized sensory alternatives”, and “rules following behavior paired with emotional validation modeling with the use of [Student’s] AAC device using graduated guidance and modeling”.
Curiously, although the Positive Behavior Support Plan is dated January 21, 2021 (i.e., before the date of the IEP meeting) and was disclosed by the DOE, it was not documented as one of the reports relied upon by the CSE team to prepare The IEP.
When asked during cross-examination why there was no classroom observation conducted, DOE’s Witness testified that “we try to do updated evaluations every year, and those evaluations can be classroom observation, a psychoeducational, a functional behavioral assessment, social history update, vocational. There are lists of evaluations. We always like to do one of them. At this point in time Student was due for an psychoeducational, therefore not needing a classroom observation but behavioral observation from the time of the psychological evaluation are included in the report”. DOE’s Witness clarified that “[e]very year we try to do an updated evaluation, either a classroom observation, social history update or a psychoeducation. Psychoeducationals need to be conducted every three years, so [Student] was due for one this year” (T. P51, & P52).
It appears from DOE’s Witness’ testimony that because the required psychoeducational evaluation was due, that it was the one assessment the DOE chose to do, without making an independent determination to comply with its obligation to provide a FAPE to students with disabilities, whether it must also conduct an FBA. Given all the facts before the CSE team pointing to Student’s challenging behaviors, including environmental destructions, aggression, and self-injurious behaviors (Ex. DOE-8-5), that were interfering with Student’s ability to be available for learning, I find that the CSE team erred in not determining, and thus exercising its discretion to conduct an FBA, that it was warranted as part of the reevaluation, and thus necessary to develop an appropriate IEP for Student.
Whilst The IEP did have one goal that would have worked on Student’s negative behaviors (Ex. DOE-4-12), the program and the supports offered in The IEP as a whole would not have provided sufficient support and interventions to appropriately address Student’s behaviors given the severity thereof and real impact it was having on Student’s learning at that time. I am therefore unable to find that The IEP adequately identified the behavioral impediments and implemented strategies to address Student’s behaviors. On the given facts before the CSE, an FBA was warranted and yet the CSE team chose to only do the one assessment that was required at that time to assess Student, according to DE’s Witness.
Given my findings regarding the evaluative materials before the CSE team and the inadequacy of the related services to meet Student’s special education needs, I am unable to find that the CSE team’s recommended program was appropriate for Student for the 2022-2023 SY given the unreliability of the testing results conducted as part of the Psychoeducational.
If | compare the goals developed by the Prior School (not the Attending School, as those would not have been available at the time of the CSE meeting), as compared to the goals on The IEP (Ex. DOE-4, DOE-8, DOE-10.6, & DOE-11), the former goals are more detailed, comprehensive, and tailored to Student’s needs. This comparison gives credence to Parent 2’s assertions that the goals in The IEP were not developed with a student like Student in mind, namely a student with a brain-injury. Given my findings regarding the DOE’s failure to adequately evaluate and assess Student in all areas of suspected disability, I find that the goals were not developed with the CSE team having sufficient and appropriate evaluative information before it, particularly in regard to the following areas: Hearing, Vision, Feeding, and Behavior.
I am therefore unable to find that The IEP was reasonably calculated to enable Student to make progress appropriate in light of Student’s circumstances, based on a preponderance of all the evidence on record and that it offered Student a FAPE for 2022-2023 SY, and the DOE has not met its burden in that regard.
It is unnecessary to make a finding regarding the recommended placement, given my findings regarding the program that was developed for Student. Accordingly, Parent 1 has met the first criterion of the three-part test set out in the Burlington/Carter case for funding for the cost of the tuition for Student’s placement at the Attending School for the 2022-2023 SY.
Prong Il - Appropriateness of Parent 1’s Placement: Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student.”[39]
°°
The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.[40]
“° The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.
The standard to apply is whether “/the/ unilateral private placement... provides educational instruction specifically designed to meet the unique needs of a handicapped child.[41]
41 Gagliardo, 489 F.3d at 115.
The Judges in the Gagliardo case wrote that “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[42] (my emphases).
In both instances highlighted above, the focus is on the needs of the child, which are individual and unique, and that the placement must reasonably serve those needs to an extent that permits the child to benefit from the instruction. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private placement need not provide certified special education teachers or an IEP.
Evidence on Record:
Parent 1’s representative presented testimony by Parent’s Witness, and Parent 2, and submitted documentary evidence in support of the Parent 1’s position that the Attending School placement was (and is) an appropriate placement for the 2022-2023 SY.
Parent’s Witness testified (T. P72-P124), inter alia, as to:
Witness’ title, namely the Principal of the Attending School; Witness’ educational background, credentials, and work experience; Witness’ duties and responsibilities; what the school is, namely a private for children who either have traumatic brain injury or other disabilities that are due to brain-based injuries, for students ages five through twenty-one, further describing the general student population that the school serves, and how the school creates academic and related services programs to help support the students academically in their day; and how many students were enrolled for the current school year, namely one hundred and five.
How the school employs licensed or certified education teachers and paraprofessionals, who at a minimum are required to have a high school diploma although some have other degrees, and must be trained by the school, which trainings include, inter alia, first aid and CPR, HIPAA, student engagement, personal care, aide training, AT training, safe feeding, seizure training, abuse prevention, and safe training; how the school provides various related services to its students by related service providers that are all licensed in their areas, the typical student to staff ratio in the classrooms, namely 6:1+1 and also 8:1+1, where each classroom would have one teacher and each student would have their individualized paraprofessional who is with them throughout the day; and how the school does not employ consultants at all to work with students.
Witness’ familiarity with Student, who met Student during intake, where Witness observed Student in the classroom on a regular basis, reviewed all progress reports and assessments, and met with Student’s team regularly in order to discuss Student’s needs, skills, strengths, and how Student’s program could best be adapted for Student.
How Student first began school at the Attending School on July 11, 2022; how during the intake process the school conducts an assessment which is a team and collaborative effort, where various members of the admission’s team will be with the student, asking parents questions and doing “kind of mini assessment” on the student that goes across all academic and therapeutic disciplines; once completed, the admissions team meet in order to make a formal recommendation about the student for the program, and if the student is a good candidate, the team comes up with the student’s mandates and goals for the year; and if the student is accepted, an enrollment agreement is then signed by parents.
How Student was able to follow basic one step directions, but there were definitely some visual issues; Student had a device at the time and basically expressed oneself with body language, and was not consistently using the device; how when given a switch with a voice output, Student demonstrated interest in using the switch to say “that's the one | want”, it being pre-programmed with the phrase; how during the evaluation Student was noted to be able to walk but exhibited some uncoordinated and unsteady movements, had poor balance, poor postural control, and some motor planning; how at times when there was too much noise, Student reacted by flapping hands and swinging Student’s body; how Student really needed frequent direction at the time; Student being accepted into the Attending School because it was felt that Student would be an appropriate fit for the program and that Student had so much potential that the school would be able to meet due to its extensive amount of therapy offered to support students within the classroom.
How during the relevant SY Student’s teacher is Teacher (defined on page 35), who has a master’s degree in early childhood, special and general education, and is a NYS certified special and general education teacher, with over eight years’ experience as a teacher; how there are six paraprofessionals in Student’s class, one for each student; how for Student’s related services, AT is programmatically conducted for all students and is part of Student’s program; how Student also receives behavioral services programmatically throughout the day in the classroom and at school, vision services two times forty-five minutes, hearing three times sixty minutes, S&L and OT four times sixty minutes, and PT three times forty-five minutes per week; how services are offered both within and outside the classroom, depending on what the student is working on; how when services are offered as a pull-out service they would go to a private room or the gym, and the therapists work within the classroom as well in order to help Student generalize all of these skills, with the related services providers being encouraged to work within the classroom as much as possible; and how all of the team receive the lesson plans from the teacher at the beginning of the week, and are able to look over it and see how best they can support the students, working on their specific skills and goals within the classroom in order to help support the students in their academic curriculum.
How Student came to the Attending School with a high-tech SGD, a Samsung Galaxy tablet with Nova
Charts, which has a grid size of 42 and hidden cells not to overwhelm Student, enabling Student to choose what Student wants, and there is a voice output that says whatever Student presses; how Student needs a way to access and see it, so they have adapted a gooseneck mounting that connects the device to Student’s desk where Student sits; how they introduced two different switches to Student, a Jelly Bean switch and a Speck switch, which are secured to Student’s desk with Velcro so that Student cannot throw them off; how the switches are connected to voice output devices that Student’s therapists, teachers, or paraprofessional can record on; how one is used for something positive (e.g., | like that one) and the other for negative messages (e.g., | don’t like that one), providing Student with a simpler way to make basis choices during the day; and how Witness believes that these devices enhanced Student’s daily functioning in the school.
How Student has demonstrated so much progress with Student’s SGD since starting at the Attending School and displayed an increased interest in exploring and accessing the vocabulary independently; how Student uses the voice output communication aid during academic activities, which allows Student to comment with regular participation, make choices, let people know what Student is thinking, and participate in reciprocal communication exchanges; and how one of the voice output communication aids that Student uses is called Step-by-Step, which can be programmed with a series of encounters, allowing for Student to have a conversation, be a full participant, not just academically but socially.
How Witness has observed Student in the classroom over the year, typically daily; how Student’s several diagnoses affect Student’s ability to learn and participate, along with Student’s global development delay; how Student’s team work closely together to continually assess Student in order to determine how best to meet Student’s needs (with examples provided) — it being a collaborative and team effort to address all issues and make continuous changes as necessary; and how the school offers individual training in addition to parent-teacher conferences, which Parents have taken advantage of.
How Witness believes that the Attending School has provided Student with an appropriate special education because the SY is not over and Student has already made progress in all of the areas of Student’s program; how in academics, based upon what Witness has observed and from speaking to Student’s teacher and related services providers, and reading Student’s reports, Student is using Student’s AAC device in order to participate more in reading, is using the keyboard on Student’s AT device to learn how to choose letters to sign Student’s name, and recently began to sign*® Student’s name; how in Math learning, Student is reaching for shapes, using Student’s device to decide which shapes Student wants to use or talk about in class; and how Student is using Student's device to make requests that will help Student in class, which are going to help Student be more supportive and more engaged in the classroom.
How in each of Student’s therapies Student has made progress, in vision, using compensatory skills, in ambulating the classroom, in hearing sessions; how Student has demonstrated comprehension of some basic signs that are being used with Student, use of the device in general, activating the device independently, and intentionally demonstrating understanding of some basic words on the device, as well as learning how to navigate to secondary pages on the device and use the device functionally and be more engaged; how Student is working on self-care and pre-vocational skills and has made progress in that; how Student has progress in PT learning how to step over obstacles, pedaling with an adaptive tricycle, working on building up core strength, walking on stairs safely; how as a key to helping Student in Student’s progress, which Witness thinks has made such a big difference for Student in Student’s progress, are the behavior services that are provided to Student; how Student started the year agitated and sometimes demonstrating behaviors, but with a really thorough behavior plan, which it was noted that Student was “reduced for physical aggression”, and with the entire team using the plan, which includes feeding skills, to minimize Student’s behaviors in general.
43 | understood Witness to mean through the use of sign language.
Parent’s Witness testified during cross-examination and redirect examination, inter alia, that: Student’s behaviors, which include reaching out, demonstrating some aggressive behavior such as scratching or slapping at somebody, or throwing or mouthing items, are primarily used as a way to avoid a task or task demands that have been placed upon Student; because of Student’s disabilities and Student’s inability to necessarily regulate Student’s own behavior, as well as Student’s inability to speak, Student has been receiving ABA support services to provide functional alternatives, and using the AAC device; the school has a full-time BCBA who works with Student, and Student’s head-teacher and the entire team are given the behavior plan, who meet regularly with the BCBA to follow the plan; that only ten students out of the one hundred and five enrolled students require the assistance of the school’s BCBA and behavior technician;
Student is seen programmatically during the day and during the week, so the schedule changes based upon need; and Student has made great progress with the behavior plan, and Student’s physical aggression has been reduced significantly, lasting a few seconds at most.
The most academic instruction Student can be receiving in primary core subject matters is three hours per day; during the period “social skills/art and music” there are a few things that are offered in the school; they have a certified music therapist who works with the students on their specific skills using music therapy and working on their goals, that might be communication goals, social goals, working on AT, the music therapist will work on whatever lessons are being worked on within Student’s sessions; for art lessons, which will either be the teacher running the art lesson, or the art teacher, will always be related to one of the other core curriculum topics, working with students on engagement, and on accessibility; there are set instructional lessons based on interaction with peers and social engagement; for transitional class the school has a mock apartment set up like a studio apartment to use and learn basic (life) skills, which includes a lot of community outings, and community members coming to the students as well, to address vocational skills.
For the SY at issue Student has only been working on four academic goals for the year and had yet to master any of the goals; for goal number three (Ex-P-F-2), when asked if that goal is yet to be addressed in the classroom, it was asserted that Student was learning prerequisite skills for that goal, and that for the school’s students who are extremely challenged and have significant disabilities, progress is measure ina very different way; that they look at engagement, interaction, use of devices in order to interact, the student’s ability to perform the goals, and that sometimes they will “back it up a little bit in order to address some prerequisite skills that the student may need before actually working on the goal so that we will have process of continuous assessment”.
Parent 2 testified (T. P132-P143), inter alia, as to: Student having demonstrated “tremendous progress that we have never seen before” during the relevant SY, given that it is a school specialized for a brain-injured child and everything is geared towards that type of child, including identifying Student’s parents and siblings from pictures, better navigation of stairs by oneself, eat independently, being able to get up and get food by oneself, pulling underwear and trousers up and down during toileting, using Student’s device to communicate, addressing Student’s seizure disorder and medicine, and that “we’re just seeing progress every single day”; and how the whole team knows what Student needs and how they all work collaboratively together.
I find that the Student’s program at the Attending School is specifically designed to cater to a class or category of students, namely those with highly specialized needs resulting from some form of brain injuring and/or disability, who struggle to function in a general education setting, requiring a one-to-one paraprofessional support and a small class size/environment, individualized programming and curricula that caters for the particular student’s pace and ability to learn. The entire program, including the learning approaches and the numerous supports provided are designed to meet the needs of this class or category of student.
I find that Student’s educational and behavioral needs, were (and are being) met given the level of education, supports, and services provided by the Attending School, as well as how the school specially tailors the program to the Student’s specific learning and physical challenges (e.g., the sequencing provided for Student based on Student’s calendar, given Student’s visual impairment, being a tactile version; all of the books being made accessible for students, so for Student who wants to hold the book Student will be provided Student’s own copy, where other students might have a braille version; for independent reading students have the opportunity to choose a different book than whatever has been shared with the class, and the teacher, paraprofessionals, and therapists work with the students individually; Student has access to digital books that read out loud to Student; Student has access to digital books that have to do with topics of Student’s choosing and topics that motivate Student; etc.).
The testimony of Parent’s Witness, as well as the school’s progress report (Ex. P-F) provide more examples of how Student’s teachers and providers specifically tailored the program for Student. This evidence was not disputed through any testimony, let alone any expert testimony contradicting the testimony of Parent’s Witness, and supports Parents’ and Parent’s Witness’ assertion that the Attending School was (and is) an appropriate placement for Student.
The testimony of the Parent 2, Parents’ Witness, and Parent 1’s documentary evidence (Ex. P-B, P-E through P-G) establishes that the Attending School was (and is) appropriate and has been providing Student with educational instruction that was specifically designed to meet Student’s unique special education needs, supported by such services that were (and are) necessary to permit Student to benefit from instruction, for the 2022-2023 SY.
I do not find as asserted by the DOE that the “very little academic instruction at the School renders [the Attending School] an inappropriate placement” (Ex. IHO-II-13). Having been classified by the DOE as a student with Multiple Disabilities, and having recognized that Student “presents with weaknesses in areas of cognitive as well as social emotional, adaptive living and communications skills that preclude [Student] from participating in the NYS assessments (Ex. DOE-4-27), it cannot reasonably be expected of Student to receive up to 27.5 hours of instruction that would be mandated for non-disabled typically functioning students, especially where the DOE’s own IEP developed for Student did not even provide for that number hours of academic instruction (Ex. DOE-4-18, & DOE-4-19).
It has been held that the IEP need not bring the child to grade-level achievement, but it must aspire to provide more than de minimis educational progress.[44] Just as parents cannot hold the DOE accountable and expect the DOE to guarantee that the IEP developed will result in a student with learning disabilities achieve certain grade-level progress compared to the student’s typically developed peers, by the same token, the DOE cannot hold such a student to the same level or standard of academic instruction required per week to be provided with an appropriate educational program. To hold otherwise would render meaningless the words “educational instruction specifically designed to meet the unique needs of the student’ (my emphasis) from the given standard.
I also find that, based on the Student’s attendance at the Attending School for the 2022-2023 SY, as testified to by Parent’s Witness, and Parent 2, and is reflected in the Attending School’s progress report (Ex. P-F), Student made been making, and will likely continue to make, progress.
Accordingly, Parent 1 has met the second criterion of the three-part test set out in the Burlington/Carter case for funding for the cost of the tuition for Student’s placement at the Attending School for the 2022-2023 SY.
“4 N.B., 711 F. App'x at 32; "What the statute guarantees is an appropriate education, not one that provides everything that might be thought desirable by loving parents." Walczak, 142 F.3d at 132 (internal quotation marks omitted). See also Fragnito ex rel. L.F. v Board of Ed. Of the Suffern Cent. Sch. Distr. 2020 CS 510452 [S.D.N.Y. July. 21, 2020] Prong Ill - Equitable Factors: Equitable considerations are relevant to fashioning relief under the IDEA.[45]
The IDEA also provides that reimbursement/funding may be reduced or denied when parents fail to challenge 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.[46]
The IDEA allows that reimbursement/funding may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing 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.[47]
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.[48]
Although a reduction in reimbursement/funding is discretionary, courts have upheld the denial of reimbursement/funding in cases where it was shown that parents failed to comply with this statutory provision’.[49]
The hearing record reflects that Parent 1, through Parent 1’s representative, notified the CSE by correspondence dated June 17, 2022 of Parent 1’s intention to enroll Student at the Attending School and seek public funding for the 2022-2023 SY (Ex. P-C).
46 20 U.S.C. § 1412[a][10][C] [iii]; 34 CFR 300.148[d]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 192 Fed. App'x 62, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at 69 n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]. 47 20 U.S.C. § 1412[a][10][C] [iii] [I]; see 34 CFR 300.148[d][1]. 48 Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004].
I find that in this letter Parent 1 offered sufficient information to put the DOE on notice about Parent 1’s concerns regarding the CSE’s failure to make an appropriate program recommendation and informed of Parent 1’s intentions, giving the DOE an opportunity to cure any deficiencies, which is the intent underlying the ten-day notice requirement.[50]
°°
Contrary to the DOE’s assertions, I did not find any factors applicable that would have warranted a reduction of the claim for tuition funding. It was asserted that the equities do not favor the parent because the parent had no intention of enrolling the child in the public school. The first and second reasons advanced in support thereof, namely Student has always attended a private school since kindergarten and that Parent 2 admitted to only considering the Attending School as a placement for Student is contradicted by the CSE team’s own minutes of the IEP meeting, where it was documented by the team that while Parent 2 would like Student to remain at the Prior School, he was currently seeking a public school placement (Ex. DOE-6-2).
I also do not agree that Parent 2 admitted to only considering the Attending School as a placement for Student. The question put to Parent 2 was “when you were looking at schools for the 22-23 school year did you look into any other schools aside from [Attending School]?” (my emphasis) Parent 2 answered “No, honestly, because we felt that the other schools weren't, you know, according to the IEP, weren't giving us really what, like | mentioned, because [Student]'s brain-injured and they weren't, they weren't specialized in that, so, and |, | know [Student] is a brain-injured child and, you know, we, we need to maximizeTM* what [Student] can and [Student] cannot do” (T. P140). Accordingly, contrary to what was asserted Parents did feel that “the other schools” weren't giving them what they needed and for that reason “were not looked at”, but must have been “considered” for Parents to have arrived at that opinion. Parent 2’s answer should also be understood in the content of his complete testimony.
The question put asked “when you were looking at schools” (my emphasis). There was no specific mention of a DOE proposed placement. Parent 2 had already testified earlier when asked why he moved Student to the Attending School that it was because the Attending School specialized in brain-injured children and that it was the suitable school out of all the schools that Student was in previously.
Accordingly, having found a school that was suitable, Parents did not look for additional schools. There was no evidence that the Proposed School was or was not one of the schools that Parents “looked at”, and this was not established by the DOE*.[52]
Even assuming that Parents did not consider the Proposed School (which I do not find has been established on the record by the DOE), and which was not expressly put to Parent 2, I do not find that that in and of itself a sufficient basis to warrant a Prong Ill denial or deduction given my findings regarding Prong |. Given the inappropriate program developed, it would be nonsensical to then fault Parents for failing to consider the proposed school placement where the inappropriate program developed would have been implemented for Student.
It was also asserted that because Parents signed the 2022-2023 school year contract with the Attending School on June 17, 2022, being the same day that they notified the CSE that they were seeking to unilaterally place Student at the Attending School, the CSE was prevented from curing any alleged defect in the notice prior to the unilateral placement. Based on these three factors, it is asserted that parents had no intention whatsoever of enrolling Student in the public school for the 2022-2023 school year.
Although it is apparent from the record that Parents signed a contract enrolling Student in the Attending School prior to the start of the 2021-2022 SY, on the same day as providing the CSE the ten-day notice, namely on May 5, 2021 (Ex. P-K), the Second Circuit has explained that, so long as parents cooperate with the CSE, “their pursuit of a private placement [i]s not a basis for denying their [request for] tuition reimbursement, even assuming ... that the parents never intended to keep [the student] in public school.[53] °°
I find that the timing as to when the ten-day notice was sent to the CSE to have been of no consequence to Parent 1’s claims. The enrollment contract had a clause permitting Parents to exit without financial penalty if the Student was enrolled in the public (or state-approved non-public) school offered by the school district on or before October 15, 2022 (Ex. P-I-2). Accordingly, I do not find that by signing the enrollment contract, Parents had no intention of enrolling Student in the public school or prevented the CSE from curing any defects.
It was asserted in the DPC that Parent co-operated with CSE (Ex. P-A-4) and the DOE did not prove otherwise.
3 C.L., 744 F.3d at 840. Amounts Claimed:
Parent’s Witness confirmed during her testimony that Parent 1 or Parent 2 signed a contract with the school that obligates them to pay tuition (T. P85). This was also confirmed by Parent 2 during his testimony (T. P138). Affiant (defined on page 35), the Director of Operations at the Attending School, confirmed, as of July 14, 2022, the total contracted annual tuition rate of $194,080.00 owing to the Attending School for the 2022-2023 SY for Student’s enrolment from July 11, 2021 through June 30, 2022 (i.e., the extended SY), and that no payments had been received (Ex. P-H-1). This evidence is consistent with the contents of the Enrolment Contract (Ex. P-I-1). Parents’ obligation to pay is also evidenced in the Enrollment Contract (Ex. P-I-1, & P-I-2).
Parent 1 did not produce evidence with respect to whether she had the financial resources to "front" the costs of the servicesTM and therefore failed to demonstrate an inability to pay. There was no evidence in the hearing record regarding either Parents’ financial resources, such as a copy of a recent tax return or evidence regarding Parents' assets, liabilities, income, or expenses’,[55] and no testimony in that regard whatsoever. Recently the District Court addressed the issue of direct payment versus reimbursement. The Honorable Judge wrote that “where it is undisputed that the DOE is responsible for payment, and the DOE does not contest the reasonableness of the cost of tuition, it would be nonsensical to draw a distinction on equitable grounds between requiring the DOE to pay the school directly and forcing the parents to make an initial payment in the same amount that the DOE is then required to reimburse”.[56] °° Based upon a similar analysis that the Court adopted in that case, I find that retrospective direct payment is an appropriate remedy in this case given: Parent 1’s established contractual obligation (addressed above) itself constituting an ‘injury in fact' that is 'redressable' by the direct tuition payment Parent 1 seeks; that the DOE is responsible for payment (my findings in this decision refers); and that the DOE did not contest the reasonableness of the cost of the tuition, merely the DOE’s liability (Ex. IHO-III).
Parent 1 has therefore met the third criterion of the three-part test set out in the Burlington/Carter case for direct funding of the cost of the tuition for Student’s placement at the Attending School for the 2022-2023 SY.
Remaining Relief:
>4 Application of a Student with a Disability, Appeal No. 12-036; Application of a Student with a Disability, Appeal No. 12-004; Application of the Dep't of Educ., Appeal No. 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041. °° Application ofa Student with a Disability, Appeal No. 23-052. °© Ferreira v. New York City Dep’t of Educ., 2023 WL 2499261 (S.D.N.Y. March 14, 2023).
As part of the proposed relief in the DPC, Parent 1 has requested an order: i) for the DOE to reevaluate Student, including conducting an FBA and BIP; and ii) to provide Student with the related services recommended on the last agreed upon IEP and/or reimburse Parent 1 and the school for the cost of the provision of the mandated related services (Ex. P-A-4, & P-A-5). Given my finding on Prong I, the former relief is being ordered. The latter relief is already catered for as part of the award for tuition reimbursement, given that Parent’s Witness confirmed that the cost of the tuition includes the cost of the related services (T. P111; Ex. P-I-). To order the DOE to further provide Student with the related services recommended on the last agreed upon IEP would be punitive, especially given my finding regarding Prong Il.
ORDER:
Based upon the above Findings of Fact and Decision, it is hereby:
1. ORDERED that, the DOE shall directly fund the cost of Student’s placement at the Attending School for the 2022-2023 school year by making payment to the Attending School in the sum of $194,080.00 (One Hundred and Ninety-Four Thousand, and Eighty Dollars), minus any payments already made by the DOE for the Student’s tuition at the Attending School for the 2022-2023 school year under or in terms of Pendency (if applicable).
2. FURTHER ORDERED that, the DOE shall, within 21 days of the date of this Order, commence a reevaluation of the Student?[57] , and shall ensure that it appropriately assesses Student in all areas related to the suspected disabilities, which shall include Hearing, Vision, and Feeding,[58] and use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about Student, including information provided by Parents, that may assist in determining, among other things the content of Student's IEP°?,[59] relying on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.TM
3. FURTHER ORDERED that, as part of the reevaluation to be conducted in accordance with #2 of this Order, the DOE shall conduct, or at the DOE’s election fund, an FBA and a BIP.
SO ORDERED.
>” 34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4].
8 8 NYCRR 200.4[b][3]. °°
6° 20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6]
[x].
DATED: June 12, 2023
H.A.C. (Signed Electronically)
Impartial Hearing Officer
Harry A. Christodoulou
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 htto://www.sro.nysed.gov.
APPENDIX A — REDACTION IDENTIFICATION PAGE
[REDACTED]
APPENDIX B — DOCUMENTATION ENTERED INTO THE RECORD
PARENT’S EXHIBITS
P-A. Impartial Hearing Request 11/28/2022 6 pages
P-B. Program Description Undated 10 pages
P-C. Ten Day Notice 06/17/2022 2 pages
P-D. Class Schedule 2022-2023 2 pages
P-E. Prospective Student Intake Evaluation 05/13/2022 5 pages
P-F. Quarterly Progress Report 2022-2023 6 pages
P-G. Educational Annual Assessment 11/21/2022 42 pages
P-H. School Affidavit P-| Enrollment Contract 06/17/2022 5 07/14/2022 1 page
DOE’S EXHIBITS
DOE-1 Request for Reevaluation 01/21/2022 2
DOE-2 Consent for Additional Assessments 01/21/2022 1
DOE-3 Notice of IEP Meeting 03/14/2022 2
DOE-4 IEP 04/04/2022 28
DOE-5 IEP Attendance Page 04/04/2022 1 DOE-6 IEP Minutes 04/04/2022 3 DOE-7 Speech and Language Evaluation Report 02/23/2022 11 DOE-8 Speech and Language Goals Undated 5 DOE-9 Behavior Support Plan 01/21/2021 4 DOE-10 Occupational Therapy Evaluation 11/__/2021 6 DOE-11 Occupational Therapy Goals 21/__/2021 7 DOE-12 Prior Written Notice 06/12/2022 5 DOE-13 School Location Letter 06/12/2022 3 DOE-14 Psychoeducational Evaluation 01/21/2022 4
IHO’S EXHIBITS
I. | Impartial Hearing Request - Corrected 11/28/2023 5 District’s representative’s Closing Brief for the DOE 05/08/2023 15 pages
II. Parent’s representative’s Post-Hearing Closing Statement 05/08/2023 12 pages
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] The DPC was filed on November 28, 2022 at 11:20p.m. and is therefore reflected in the Impartial Hearing System as “requested on” November 29, 2022.
[3] 20 U.S.C. § 1400 et seq.
[4] 34 C.F.R. § 300 et seq.
[5] Educ. Law Art. 89 § 4404 et seq.
[6] 8 NYCRR § Part 200.
[7] NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504- delegation-Signed.pdf.
[8] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[9] 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].
[10] 20 U.S.C. § 1415[f][3][E][i].
[11] Rowley, 458 U.S. at 203.
[12] Houston Indep. Sch. Dist., 200 F.3d at 349; Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]
[13] A.P., 370 Fed. App'x at 205; Van Duyn, 502 F.3d at 822; Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D.D.C. 2007].
[14] See Antignano v. Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11 [E.D.N.Y. Jan. 4, 2010].
[15] School Committee of the Town of Burlington v. Department of Ed., Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Bd. of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].
[16] NYS Educ. Law § 4404(1)(c). The burden was confirmed by the parties’ representatives at a prior SC (T. P7), although there was disagreement as to which party bears the onus regarding Prong
[17] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[18] Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Central School Dist., 346 F.3d 377, 379 [2d Cir. 1998]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998].
[19] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[20] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[21] R.E., 694 F.3d at 186; C.L.K. v. Arlington Sch. Dist., 2013 WL 6818376, at *13 [S.D.N.Y. Dec. 23, 2013].
[22] 20 U.S.C. § 1414[d][1][B]; Educ. Law § 4402[b][1][a]; and 34 CFR 300.321[a]; 8 NYCRR 200.3[a][1].
[23] Educ. Law § 4402[b][1][a][iv]; 8 NYCRR 200.3[a][1]; see 20
[24] 34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4].
[25] 34 CFR 300.303[b][1]-[2]; 8 NYCRR 200.4[b][4].
[26] 8 NYCRR 200.4[b][3].
[27] 20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007].
[28] 20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x].
[29] 20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii].
[30] 34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018.
[31] Whilst the IEP documented that the psychoeducational evaluation dated January 21, 2022 (plus the three other reports) were relied upon, the PWN disclosed by the DOE noted that the only assessment used was the Psychoeducational Assessment dated February 11, 2014 (Ex. DOE-12-2) (my emphases).
[32] Whilst the IEP does document this improvement, as well inter alia improvement in areas of communication, S&L, and progress in areas of navigating Student’s household (Ex. DOE-4-3), this must been seen in the context of the environment Student was in at that time, namely the Prior School, with the services and supports it was providing Student during the previous
[33] The Prior school offered 45 minutes per session whereas the DOE only offered 30 minutes per session (compare DOE-4-19 with DOE-14-1). The CSE team was aware of the duration of these services offered by the Prior School, as it was noted in the Psychoeducational relied upon by the CSE team to develop the IEP (i.e., it was a different environment to the proposed school placement for the SY in issue).
[34] See the section headed “Augmentative and Alternative Communication (AAC)” in the S&L Progress Report (Ex. DOE-7-6 through DOE-7-9).
[35] 20 U.S.C. § 1414[d][3][A]; M.Z., 2013 WL 1314992, at *9; D.B. v. New York City Dep't of Educ., 2011 WL 4916435, at *7-*9 [S.D.N.Y. Oct. 12, 2011].
[38] See C.F. v. New York City Dep't of Educ., 62 IDELR 281 (2d Cir. 2014), where the lack of an FBA led to the development of an inappropriate BIP and caused the district to offer an inappropriate placement.
[39] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007].
[40] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006].
[41] Gagliardo, 489 F.3d at 115.
[42] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[44] N.B., 711 F. App'x at 32; "What the statute guarantees is an appropriate education, not one that provides everything that might be thought desirable by loving parents." Walczak, 142 F.3d at 132 (internal quotation marks omitted). See also Fragnito ex rel. L.F. v Board of Ed. Of the Suffern Cent. Sch. Distr. 2020 CS 510452 [S.D.N.Y. July. 21, 2020] The hearing record reflects that Parent 1, through Parent 1’s representative, notified the CSE by correspondence dated June 17, 2022 of Parent 1’s intention to enroll Student at the Attending School and seek public funding for the 2022-2023 SY (Ex. P-C).
[45] Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 [2d Cir., 2014]; 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".
[46] 20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 192 Fed. App'x 62, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at 69 n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001].
[47] 20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].
[48] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004].
[49] 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. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007].
[50] Greenland Sch. Dist., 358 F.3d at 160.
[51] Much was made of Parent 2’s use of the word “maximize”, which was used in reference to what Parents wanted to get out of the Attending School for Student - not to be confused with the DOE’s obligation under Prong I which does not require it to “maximize the potential of students with disabilities”.
[52] It is asserted in Parent 1’s Post-Hearing Closing Statement that Parent 2 visited the recommended placement (Ex. IHO-III10). This was however not addressed at all as part of Parent 2’s testimony.
[53] C.L., 744 F.3d at 840.
[54] Application of a Student with a Disability, Appeal No. 12-036; Application of a Student with a Disability, Appeal No. 12- 004; Application of the Dep't of Educ., Appeal No. 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041.
[55] Application of a Student with a Disability, Appeal No. 23-052.
[56] Ferreira v. New York City Dep’t of Educ., 2023 WL 2499261 (S.D.N.Y. March 14, 2023).
[57] 34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4].
[58] 8 NYCRR 200.4[b][3].
[59] 2720 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007].
[60] 20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x].