NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 593716 – NYC: 243994
Impartial Hearing Officer: Nicholas Bancroft
Date of Decision: 04/28/2023
BACKGROUND
The Parent, through counsel, filed a Due Process Complaint (“DPC”) on December 19, 2022. In the DPC, the Parent alleges the Department of Education (“DOE”) failed to offer the student a free appropriate public education (“FAPE”) for the 2022-2023 school year. [1]
Parent alleges the DOE failed to adequately address Student’s educational needs and failed to provide Student with an appropriate program and placement for the 2022-2023 school year, resulting in a denial of FAPE.[2] By way of relief, Parent seeks an award of tuition reimbursement and direct funding of the remainder of tuition for Student’s attendance during the 2022-2023 school year at Private School, appropriate transportation to and from Private School, reimbursement for transportation costs paid for by Parent, reimbursement for the costs of a Psychological Evaluation, Occupational Therapy Evaluation, and prospective funding for a Vision Therapy evaluation.[3] Furthermore, Parent alleges that the equities support their claim for tuition reimbursement and direct tuition funding for the school years at issue. 4 The District, in their response to the DPC, denies each and every allegation contained in the DPC, except to admit that: i. IEP meetings for Student were held on December 17, 2021 and November 2, 2022.
ii. Student was classified as a child with Other Health Impairment.
iii. The IEP team recommended an educational program of general education with special education support services (“SETSS”).
iv. The IEP team relied on the following information in making its decision:
social history, psychoeducational evaluation, classroom observations, and private evaluations supplied by the Parent. v. The team considered a general education program with related services only but rejected this option because it did not provide sufficient support for the student’s needs with respect to managing anxiety. vi. On November [4], 2022, a Prior Written Notice (Notice of Recommendation) was issued to the parent with a placement at High School. [5] In light of the foregoing and as more fully discussed below, I find that a) the DOE failed to meet its burden that it offered Student FAPE for the 2022-2023 school year, the b) Private School offers Student with specially designed instruction sufficient to meet Student’s needs and c) the equities support the Parent’s requested relief.
PROCEDURAL HISTORY
I was appointed on January 31, 2023. I wrote to the parties that same date scheduling a settlement & pre-hearing conference (“PHC”). On February 7, 2023, the parties appeared for a WebEx Settlement & PHC.[6] The parties had no objection to my appointment as the presiding hearing officer.[7] There were no discussions between the parties prior to the PHC and no resolution meeting was held.[8] The parties requested an extension of the compliance date, which I granted.[9] The case was scheduled for another PHC on February 22, 2023.
On February 22, 2023, the parties appeared for the second PHC. The parties had not reached a settlement agreement and a hearing date was scheduled for March 23, 2023. At the PHC, we discussed the issues to be decided, the remedies, witnesses, and evidentiary disclosures. I issued a PHC Summary and Order outlining the discussion at the PHC. [10]
On March 23, 2023, both parties appeared for a virtual hearing. A second day of testimony was held on March 31, 2023.[11] The District submitted and I admitted District’s Exhibits 1-11 without objection by the Parent.[12] The District called two witnesses. The Parent submitted and I admitted Exhibits A-DD without objection by the District.[13] The Parent called three witnesses who testified via affidavit and appeared for cross-examination. The exhibits are listed below. Both parties chose to give oral openings and submitted written closing briefs.
FINDINGS OF FACT
After a full review of the record generated at the hearing, I make the following findings of fact and determinations.
The Student is a REDACTED year old diagnosed with anxiety and autism spectrum disorder (“ASD”) with a disability classification of Other Health Impairment who entered high school at the beginning of the 2022-2023 school year.[14] Student attended Public Middle School the prior school year where he was in an integrated co-teaching (“ICT”) classroom containing around 30 students pursuant to the recommendations in his December 2021 IEP.[15] The Student’s anxiety manifested itself throughout his time at Public Middle School.[16] The Student experienced stress and panic attacks before school every morning and that feeling would rise throughout the school day leading the Student to often return home from school in tears. [17]
Half-way through the 2021-2022 school year, the Student could no longer commute to school unchaperoned due to their anxiety. 18 Public Middle School’s Counselor would have to meet the Student outside of school prior to the start of the day to escort them into the building.[19] Without this escort, the Student would not enter the building.[20] During the school day, the Student would become overwhelmed in their classroom and would have to complete their schoolwork in the School Counselor’s office.[21] Notwithstanding the above, the Student excelled academically with a cumulative grade average of 99.55% between 2019 and 2021. [22]
The anxiety got to a point where the Parents were told by the Student’s psychiatrist that the Student was experiencing suicidal ideations.[23] On March 30, 2022, the Parents reached out to the School Psychologist to request an evaluation for the Student in order for him to be screened for autism.[24] The Student had previously been evaluated by the DOE in December of 2021. [25] The School Psychologist agreed to request a neuropsychological evaluation through the DOE. [26] On May [18], 2022, the School Psychologist informed the Parents there were no agencies through the DOE available to conduct the evaluation.[27] School Psychologist provided a list of private providers with the provision that the DOE would reimburse for the evaluation.[28] The Parents responded on June 9, 2022 informing School Psychologist they had scheduled an evaluation with Psychologist who was not on the list of providers, but were still seeking reimbursement for the evaluation.[29] School Psychologist responded that the Parents could give an AA2 form to any approved provider and the provider would let the Parents know if they accepted that payment form.[30] The Parents paid $3,000 for the evaluation.[31] They have not been reimbursed. [32]
Psychologist evaluated Student in June 2022.[33] Based on the Psychologist’s observations, the Student was diagnosed with Autism Spectrum Disorder and Generalized Anxiety Disorder. [34] The Psychologist opined that this diagnosis makes the school environment overwhelming for the Student.[35] The Student is easily overwhelmed by visual and auditory stimuli affecting their ability to participate in classroom routines and instruction.[36] Psychologist recommended the Student be placed in a small classroom (between 8-12 students) in a small therapeutic school among peers diagnosed with social-emotional and/or neurodevelopmental challenges and with a staff trained in either mental health or social emotional functioning. [37]
Psychologist thought an ICT classroom was not appropriate for the Student and stressed that a large number of students sharing a classroom negatively impacts the Student’s ability to participate in learning.[38] Furthermore, Psychologist opined that a general education classroom with SETSS would be “disastrous” for the Student.[39] The Psychologist expressed “extreme concern” regarding the CSE’s program recommendation’s potential effects on the Student’s social-emotional well-being. [40]
On August 22, 2022, the Parents requested an IEP meeting.[41] On September 1, 2022, the Parent’s sent a 10-day notice via e-mail to the DOE of their intention to enroll the Student at Private School. [42]
The IEP meeting was held on November 2, 2022.[43] Present at the meeting were Parents, Psychologist, Public Middle School Counselor, and Assistant Head of Private School.[44] At the IEP meeting, the members of the IEP team considered the following evaluations: psychological evaluation from Psychologist [45], letter from Medical Doctor [46], and occupational therapy evaluation from Occupational Therapist [47]. The IEP recommended a general education classroom with 5 periods of SETSS per week.[48] Additionally, the IEP recommended 1 period per week of individual counseling, 1 period per week of group counseling and 2 periods per week of individual occupational therapy.[49] The IEP recommended special transportation accommodations, specifically, transportation from the closest safe curb location to school.[50] This was later amended to transportation from the closest safe curb location to school with a route with fewer students and climate control.[51] The transportation recommendation acknowledges the Student’s issues regarding large groups of students.
The Parents and Psychologist voiced their concerns with the placement recommendation.[52] Their concerns were that a general education classroom setting would be damaging psychologically, socially, and emotionally.[53] The parents believed this setting would provide the Student with even less support than the Student’s prior ICT classroom. [54]
On November 4, 2022, the Parents wrote to the CSE to express their concerns with the IEP program recommendation.[55] That same day, the Parents received a school placement recommendation from the District.[56] The Parents contacted Public High School and were initially told that the school would not be appropriate for Student as they do not have SETSS. [57] Public High School followed up with the Parents to confirm that SETSS could in actuality be provided to Student.[58] The Parents visited the school and met with the Principal and Assistant Principal.[59] Public High School has around 400 students and the general education classroom has a maximum capacity of 32 students. [60]
On December 7, 2022, the Parent’s notified the CSE via email to reiterate their concerns with the IEP itself and the recommended placement.[61] The Parents wrote that they believed they had no choice but to continue with the Student’s enrollment at Private School. [62]
Private School is an independent school offering a highly individualized education program with a structured and nurturing learning environment designed to address students’ learning needs and social-emotional growth.[63] Private School offers a college preparatory environment, enabling it to target and accommodate a wide variety of special educational needs.[64] Private School has a total of 42 students in grades 7-12 while maintaining an 8:1 student to teacher ratio.[65] Private School specializes in serving students with a history of depression, anxiety, school refusal, attention deficit hyperactivity disorder, Pragmatic Communication Disorder and those who may have histories of low self-esteem or poor academic success. [66] Private School provides a therapeutic environment by facilitating frequent access to on-demand and scheduled counseling services throughout the school day. [67]
The Student mirrored some of their prior behaviors upon entering Private School.[68] The Student was excessively anxious about entering the school building and suffered from separation anxiety from his parent, clinging to his mother’s leg.[69] However, after an individualized assessment Private School developed a plan to help the Student succeed and feel comfortable. [70] The Student’s largest class has 8 students and 2 instructors.[71] The Student is receiving 1x per week individual counseling and 1x per week group counseling.[72] These supports have allowed the Student to make significant progress.[73] The Student now enters and navigates Private School with ease.[74] The Student is excelling academically at Private School. [75]
The Parents have noticed a drastic change in Student’s overall well-being since being at Private School.[76] The Student is “thriving” at Private School.[77] The Student is comfortable at Private School and has gained confidence in advocating for himself.[78] The Student no longer has breakdowns every day and does not cry before school or into the evening. [79]
Private School tuition is $56,700.[80] The Parent bears ultimate responsibility for the costs of tuition. [81]
CONCLUSIONS OF LAW
Burden
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 for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. [82]
Prong I
The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE").[83] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”).[84] A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits.[85] In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” [86]
This case presents a novel but not unprecedented issue as it relates to Prong 1. Here, the Student was excelling academically prior to the Parent’s unilateral placement decision. However, prior to the placement at Private School, the student was suffering emotionally and socially due to the manifestation of their anxiety and ASD in an ICT classroom setting. The Student would struggle to enter school in the morning, could not stay in the classroom, would return home in tears, and contemplated ending their life. As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden.[87] A review of the record establishes that the weight of the evidence supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer FAPE for the 2022-2023 school year.
While the DOE submitted multiple pieces of documentary evidence into the record and called two witnesses who testified credibly, a review of the evidence offers insufficient explanation as to how the CSE made its program recommendation. The CSE disregarded the recommendations included in the Private Psychological Evaluation as well as the condemnation of the recommendation of a general education program with SETSS by the Student’s Psychologist and Parents. Setting aside the Private Psychological Evaluation and the input of the Psychologist at the IEP meeting, it appears from the record the CSE ignored their own observations and knowledge of Student in making their recommendations.[88] The Student’s teachers and counselors at Public School were themselves aware of the issues the Student was confronting at Public School in a large classroom setting. Nevertheless, the CSE disregarded this knowledge and recommended a general education classroom of up to 30 students. The weight of the evidence supports the conclusion that the Student requires a small class size in a therapeutic setting in order to make appropriate progress.
The District asserts in their closing brief that although the Private Evaluation was considered and discussed at the November 2022 IEP meeting, the IEP team was not bound by its recommendation as it had access to several sources of data in creating its recommendations. [89] Furthermore, the District argues private evaluations do not present a complete picture of the Student and do not take into account the nuances of available educational settings.[90] School Psychologist testified, in sum and substance, a private evaluator is seeing the Student in a one-to-one light and in a different setting, whereas in school, there is the whole picture of how the student is performing throughout the day.[91] That assertion may be so in some cases. However, in this case, Psychologist observed the Student in school before compiling their evaluation and making their recommendations.
In short, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating an IEP which recommended a large general education classroom despite Student’s severe anxiety and suicidal ideation stemming from a similar program, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”.[92] In Endrew F., the Supreme Court emphasized that what is appropriate depends on the child's circumstances and explained that the instruction offered must be specially designed to meet a child's unique needs through an IEP. Although this Student has excelled academically-- an IEP must be judged as to its appropriateness at the time that it is written, not with respect to subsequently obtained information about the student. [93] Furthermore, while a student’s academic performance can be a useful barometer of progress, it is not the be all end all. [94]
Therefore, I find the DOE failed to offer the Student FAPE for the 2022-2023 school year.
Prong II
A private school placement must be "proper under the Act."[95] This means that the private school must offer an educational program which met the student's special education needs. [96] Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate."[97] Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.' [98]
Parents need not show that the placement provides every special service necessary to maximize the student's potential.[99] When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits."[100] A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. [101]
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. [102]
Private School offers a highly individualized education program and structured, nurturing learning environment designed to address students’ learning needs and social-emotional growth. Private School offers a college preparatory curriculum, but the school’s intensive services lend to a more therapeutic environment, enabling it to target and accommodate a wide variety of special educational needs.[103] Private School has a total of 42 students in grades 7-12.[104] Private School offers a therapeutic environment by facilitating frequent access to on-demand and scheduled counseling services throughout the school day. [105]
This structure has allowed the Student to make significant progress. The Student enters Private School confidently and navigates the school without issue. The Student continues to excel academically. Lastly, Parents have noticed a dramatic improvement in the Student’s social and emotional state. The Student no longer dreads the school day, no longer has breakdowns during the school day, and no longer returns home from school emotionally upset.
I find that Parent has met their burden in proving that the private program offered an educational program which met Student’s need under Prong II of the Burlington/Carter standard.
In reviewing the hearing record, the weight of the evidence establishes that Student’s individual special education needs were addressed by the private school and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." [106]
Equities
Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant."[107] In making that equitable determination, a hearing officer may consider many factors, including, among other things, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. [108]
Here, Parent provided the necessary Ten-Days’ Notice of their concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year. Therein, Parent detailed specific concerns.[109] Parent furthermore, gave the DOE notice of their intention to unilaterally place the Student at the Private School. [110]
By way of relief, Parent seeks reimbursement for their private school tuition costs and to have the balance of unpaid tuition sent directly to the Private School. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA.[111] Having reviewed the tuition contract and the parent’s tax return I find that the unilateral tuition costs far exceed the Parent’ income.[112] Equity demands that the DOE fund Student’s Private School tuition in this instance.
I find no issue with the reasonableness of the costs, including tuition, associated with the Private School. Student attended the Private School during the years at issue. Moreover, I find that the weight of the evidence establishes that Parent cooperated with the DOE and its CSE’s efforts to develop an IEP and recommend a program and placement for the 2022-2023 school year. Overall and after considering the record at hearing, I find that the equities support Parent’s claim for tuition reimbursement and direct funding.
Independent Educational Evaluations (“IEEs”)
The IDEA as well as state and federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation.[113] In Shaffer v. Weast, the Supreme Court explained the role an IEE plays in parental participation and the IDEA’s regulatory scheme as follows: “[an IEE] ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” [114]
If a parent requests an IEE, the school district must provide the parent with information about where they can obtain an IEE.[115] A parent’s right to an IEE at public expense may not be conditioned on the school district’s ability to first conduct its own assessment before granting the parent’s request for an independent IEE. [116]
A parent is entitled to an IEE when the district does not conduct a sufficiently comprehensive evaluation or fails to test the student in an area of need.[117] In D.S., the court stated that, “[n]othing in the statute or regulations suggests that a parent cannot challenge an evaluation on the ground that it was too limited. To the contrary, because the IDEA requires an evaluation to be comprehensive, one would expect that a parent is free to disagree with an evaluation based on its deficient scope.”
Offering to provide the Parent some, but not all, of the assessments requested does not constitute action to ensure the IEE is provided at public expense, as the right to a publicly funded IEE entitles the Parent to “all of the independent assessments necessary to formulate that evaluation.”[118] The Parent was under no obligation to accept the DOE’s offer to fund only some of the assessments, and the DOE could not insist that it be allowed to conduct those assessments first.
Here, as summarized above, the Parent reached out to the District requesting a neuropsychological evaluation to have the Student evaluated for autism. The District responded diligently; however, it could not locate an IEE provider in an appropriate amount of time. The Parent sought their own IEE, which was completed. The District did not object to the evaluation at the time of the request; however, the District objects to funding the evaluation now. I find, contrary to the District’s assertion, that the Student had not yet been evaluated for autism. Furthermore, I find the District’s implied consent in their email exchange with the Parent regarding the evaluation as well as their failure to initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria fatal to their ability to refuse to fund the obtained evaluations.
The Parent is therefore entitled to reimbursement in the amount of $3,000 for the neuropsychological evaluation. The Parent has requested reimbursement in the amount of $800 for an occupational therapy evaluation. The record is somewhat devoid of evidence regarding the cost of that evaluation, but for the request in Parent’s closing brief. However, the evaluation was included by the District in their disclosure packet and was relied on at the IEP meeting. I find that reimbursement for this evaluation is necessary and order reimbursement upon proof of payment. Furthermore, both the occupational therapy evaluation and neuropsychological evaluation recommend the Student receive a vision therapy evaluation. I find a vision therapy evaluation necessary and order the CSE to assist the parents in conducting and funding a vision therapy evaluation.
Transportation
The IDEA specifically includes transportation, as well as any modifications or accommodations needed to assist a student to benefit from his or her special education, in its definition of related services.[119] Under New York law and regulations, special education is defined as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.”[120] The “language and spirit of the IDEA” supports providing transportation to students with a disability classification as a related service, and transportation is an integral part of the DOE’s obligation to provide a student with a FAPE. [121]
Here, the IEP includes provisions for transportation. However, there were issues with the transportation provided by the DOE and the Parent’s spent $579.60 driving the Student to school themselves.[122] I am ordering reimbursement of $579.60 to the Parent for these transportation deficiencies. The DOE shall ensure the Student receives appropriate transportation pursuant to the IEP going forward.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
(1) Parent’s claim for tuition for the Student at Private School is GRANTED for the 2022-2023 school year as follows:
(a) The District shall reimburse the Parent in the amount of $43,775 for monies already paid toward Private School tuition for the 2022-2023 school year.
(b) The District shall directly fund to Private School the balance of the Student’s tuition for the 2022-2023 school year in an amount not to exceed
$12,925.
(2) Parent’s claim for reimbursement for IEEs is GRANTED for the 2022-2023 school year as follows:
(a) The District shall reimburse the Parent in the amount of $3,000 for the neuropsychological evaluation conducted by Psychologist.
(b) The District shall reimburse the Parent in the amount of $800.00 for the occupational therapy evaluation conducted by Occupational Therapist within 30 days of submission of a signed, notarized bill encompassing the costs of said evaluation.
(c) The District shall directly fund a vision therapy evaluation with the Provider of the Parent’s choosing at that Provider’s standard market rate.
(3) Parent’s claim for reimbursement for transportation expenses is GRANTED in the amount of $579.60.
(4) The District shall provide transportation from the closest safe curb location to Private School on a climate-controlled vehicle with fewer students.
Dated: April 28, 2023
Nicholas Bancroft
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DISTRICT EVIDENCE
1. Individualized Education Plan (IEP) 12/17/2021 December 2021 17 pages DOE
2. Prior Written Notice 12/17/2021 December 2021 4 pages DOE
3. DOE Psychoeducational Assessment 12/16/2021 6 pages DOE
4. Classroom Observations 12/06/2021 1 page DOE
5. Individualized Education Program (IEP) 11/02/2020 November 2022 20 pages DOE
6. Prior Written Notice 11/04/2022 November 2022 4 pages DOE
7. School Location Letter 11/04/2022 2 pages DOE
8. Private Psychological Evaluation 07/01/2022 23 pages DOE
9. Letter from Medical Doctor 10/12/2022 2 pages DOE
10. Occupational Therapy Evaluation 08/23/2022 7 pages DOE
11. Student’s Public Middle School Transcript 2020/2021 1 page DOE
12. District’s Closing Brief 04/17/2023 14 pages DOE
PARENT EVIDENCE
A. Emails with REDACTED re: Authorization and Funding for Evaluation Various 2 pages
B. Prior Written Notice and Signed Consent for Additional Assessments 03/31/2022 9 pages
C. Letter to CSE + REDACTED Psychological Evaluation Report 08/22/2022 25 pages
D. Ten-Day Notice with CSE Confirmations 08/23/2022 5 pages
E. Notice of IEP Meeting on 11/2/22 09/06/2022 2 pages
F. Emails with REDACTED 09/14/2022 3 pages
G. Email to CSE re: IEP Participants and Documents for Upcoming IEP Meeting 10/12/2022 34 pages
H. Email to CSE re: HIPAA and Medical Accommodations Form 10/24/2022 10 pages
I. Individualized IEP by CSE 11/02/2022 21 pages
J. Email to CSE re: IEP Concerns 11/04/2022 2 pages
K. Prior Written Notice and Public Placement Recommendation 11/04/2022 6 pages
L. Emails with REDACTED and CSE re: Public Placement Recommendation Various 5 pages
M. Signed waiver to Amend IEP re: Transportation accommodations 11/25/2022 2 pages
N. Letter to CSE re: Public Placement 12/07/2022 3 pages
O. Emails with OPT re: DOE Transportation Various 2 pages
P. REDACTED Tuition Enrollment Contract 2022-2023 1 page
Q. REDACTED Tuition Affidavit 2022-2023 1 page
R. The REDACTED Program Description 2022-2023 2 pages
S. Class Schedule 2022-2023 1 page
T. Attendance 2022-2023 1 page
U. Academic Report Cards (Q1, Q2/S1) 2022-2023 5 pages
V. Literacy Support Progress Report 01/27/2023 2 pages
W. Counseling Progress Report 01/31/2023 1 page
X. Counseling Session Notes (MS889) 2021-2022 2 pages
Y. Federal Tax Return 2021 2 pages
Z. REDACTED Psychological Evaluation Invoice August 2022 1 page
BB. AA. REDACTED Curriculum Vitae February 4 2023 Affidavit of REDACTED 03/14/2023 11 pages
CC. Affidavit of REDACTED 03/15/2023 13 pages
DD. Affidavit of REDACTED 03/15/2023 6 pages
EE. Parent’s Closing Brief JOINT EXHIBITS 04/17/2023 10 pages
I. Due Process Complaint 12/19/2022 13 pages
IHO EXHIBITS
i. District’s Due Process Response 02/17/2023 2 pages IHO
ii. Pre-Hearing Conference Summary and Order 02/22/2023 4 pages IHO
iii. Pre-Hearing Conference Transcript 02/07/2023 February 7, 2023 14 pages IHO
iv. Pre-Hearing Conference Transcript 02/22/2023 February 22, 2023 14 pages IHO
v. Due Process Hearing Day 1 Transcript 03/23/2023 91 pages IHO
vi. Due Process Hearing Day 2 Transcript APPENDIX 03/31/2023 26 pages IHO
Redacted Information Term Used In FOFD
REDACTED Student
REDACTED Mother of Child/Parent(s)
REDACTED Father of Child/Parent(s)
REDACTED Parent Attorney/Representative
REDACTED District Attorney/Representative
REDACTED Public Middle School
REDACTED Public Middle School’s
Counselor/School Counselor
REDACTED Assistant Principal of School
REDACTED School Psychologist
REDACTED Public High School
REDACTED Private School
REDACTED Assistant Head of Private
School
REDACTED Psychologist
REDACTED Occupational Therapist
REDACTED Medical Doctor
Footnotes
[1] Exhibit JE-I.
[2] Id.
[3] Id.; Exhibit IHO-v.
[4] Id.
[5] Exhibit IHO-i. The District did not include this response in their disclosure packet. I have admitted it as an IHO exhibit.
[6] This IHO was not present for the settlement portion of the conference and it was not on the record.
[7] Exhibit IHO-iii at p. 5.
[8] Id. at p. 6.
[9] Id. at p. 9.
[10] Exhibit IHO-ii.
[11] In an effort to streamline the testimony and accommodate the respective parties’ schedules, the cases were heard out of order. There was no objection by the parties. Exhibit IHO-v at p. 23.
[12] Id. at p. 17.
[13] Id. at p. 19.
[14] Exhibit P-BB at p. 2; Exhibit D-5.
[15] Exhibit P-BB at p. 2.; Exhibit D-1.
[16] Id.
[17] Id.
[18] Id.
[19] Id. at p. 3.
[20] Id.
[21] Id.
[22] Exhibit D-11.
[23] Id.
[24] Exhibit P-A.
[25] Exhibit D-3.
[26] Exhibit P-A.
[27] Id. at p. 2.
[28] Id.
[29] Id.; Dr. Tobing-Puente testified via affidavit and appeared for cross-examination. I found her testimony credible based on my opportunity to observe the witness as well as her experiences and qualifications. See Exhibit P-AA.
[30] Id.
[31] Exhibit P-Z.
[32] Exhibit P-BB at p. 4.
[33] Exhibit P-DD at p. 2.
[34] Exhibit P-C at p. 19.
[35] Exhibit P-DD at p. 4.
[36] Id. at p. 5.
[37] Id.
[38] Id.
[39] Id.
[40] Id. at 6.
[41] Exhibit P-C.
[42] Exhibit P-D.
[43] Exhibit P-BB at p. 4;
[44] Exhibit D-1 at p. 16.
[45] Exhibit D-8.
[46] Exhibit D-9.
[47] Exhibit D-10;
[48] Exhibit P-I at p. 13.
[49] Id.
[50] Id. at p. 18.
[51] Exhibit P-M.
[52] Id. at p. 20.
[53] Id.
[54] Exhibit P-BB at p. 5.
[55] Exhibit P-J.
[56] Exhibit P-K.
[57] Exhibit P-L.
[58] Id. at p. 5.
[59] Exhibit P-BB at p. 6.
[60] Exhibit IHO-v at p. 60.
[61] Exhibit P-N.
[62] Id. at p. 3.
[63] Exhibit P-R; Exhibit P-CC.
[64] Id. at p. 2.
[65] Id. at p. 3.
[66] Id.
[67] Id.
[68] Id. at p. 7.
[69] Id.
[70] Id.
[71] Id. at p. 8-9.
[72] Id. at p. 11.
[73] Id. at p. 12.
[74] Id.
[75] Exhibit P-U.
[76] Exhibit P-BB at p. 9.
[77] Exhibit IHO-v at p. 40.
[78] Exhibit P-BB at p. 9
[79] Id.
[80] Exhibit P-Q.
[81] Exhibit P-CC at p. 13.
[82] NYS Educ. Law § 4404(1)(c).
[83] 20 U.S.C. § 1400 (d)(1)(A).
[84] 34 C.F.R. § 300.13).
[85] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[86] Endrew F. v. Douglas County School District RE–1, 580 U.S. 386 (2017).
[87] (1) Was the district’s program legally adequate? (2) Was the parent’s proposed placement appropriate? (3) Would it be equitable and fair to require the district to pay? Burlington School Committee, et al. v. Massachusetts Department of Education et. al., 471 U.S. 359 (1985); Florence County School District Four, et al. v. Shannon Carter, 510 U.S. 7 (1993).
[88] Exhibit D-3 at p. 2.
[89] Exhibit D-12 at p. 6.
[90] Id.
[91] Exhibit IHO-vi at p. 106.
[92] Endrew F. v. Douglas County School District RE–1, 580 U.S. 386 (2017).
[93] Roland M. and Miriam M. v. The Concord School Committee, et al., 910 F.2d 983 (1st Cir. 1990).
[94] "We do not hold today that every ... child who is advancing from grade to grade in a regular school system is automatically receiving FAPE.” Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982); “Each state must ensure that FAPE is available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 CFR 300.101(c)(1).
[95] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985).
[96] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998).
[97] Gagliardo, 489 F.3d at 112.
[98] Id., quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).
[99] Frank G., 459 F.3d at 364-65.
[100] Id. at 364; see Gagliardo, 489 F.3d at 115.
[101] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).
[102] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
[103] Exhibit P-CC at p. 2.
[104] Id. at p. 3.
[105] Id.
[106] Frank G., 459 F.3d at 364.
[107] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47 (2009).
[108] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[109] Exhibit P-D.
[110] Id.
[111] See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011).
[112] Exhibit P-Q; Exhibit P-R; Exhibit P-Y.
[113] 20 U.S.C. § 1415 (b)(1); 34 C.F.R. § 300.502(b); 8 NYCRR § 200.5(g)(1); D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d Cir. 2020) (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted).
[114] Shaffer v. Weast, 546 U.S. 49, 60-61 (2005).
[115] 8 NYCRR § 200.5(g)(1)(i).
[116] Letter to Carroll, 68 IDELR 279 (OSEP 2016).
[117] D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020).
[118] Jones-Herrion and Herrion ex rel. K.H. v. District of Columbia, No. CV 18-2828, 2019 WL 5086693 at *4, 75 IDELR 92 (D.D.C. Oct. 10, 2019) (emphasis supplied).
[119] 20 U.S.C. § 1401[26]; 34 CFR 300.34[a], [c][16].
[120] NYS Educ. Law §§ 4401(1) (emphasis added); 4402(4)(a); see also Educ. Law § 4401(2); 8 NYCRR § 200.1(ww).
[121] See Union Sch. Dist. v. Smith, 15 F.3d 1519, 1528 (9th Cir 1994); Ne. Cent. Sch. Dist. v. Sobol, 79 N.Y.2d 598, 608 (1992).
[122] Exhibit P-BB at p. 10.