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CASE NUMBER: 594872– NYC: 244806
FINDINGS OF FACT AND DECISION
Student’s Name: REDACTED (“Student”)
Date of Birth: REDACTED
School District: REDACTED
Hearing Requested by: REDACTED (“Parents”)
Date of Filing: January 11, 2023
Dates of Hearing: June 9, 2023
June 14, 2023
June 21, 2023
Record Close Date: July 14, 2023
Date of Decision: July 25, 2023
Time Sensitive Yes
Impartial Hearing Officer: Robin Levin, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 9, 2023
For the Student:
REDACTED (“Parents’ Attorney”)
REDACTED (“Mother”)
REDACTED, Psy.D. (“Neuropsychologist”)
REDACTED (“Head of REDACTED”)
For the Department of Education:
REDACTED (“DOE Attorney”)
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 14, 2023
For the Student:
REDACTED (“Parents’ Attorney”)
REDACTED (“Mother”)
REDACTED (“Teacher at REDACTED”)
For the Department of Education:
REDACTED (“DOE Attorney”)
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 21, 2023
For the Student:
REDACTED (“Parents’ Attorney”)
REDACTED (“Mother”)
For the Department of Education:
REDACTED (“DOE Attorney”)
INTRODUCTION
This is a decision rendered after a due process hearing (“DPH” or “hearing”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, Educ. Law Article 89 §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq. 1 This case concerns Student, a REDACTED, who is classified by the New York City Department of Education (“DOE” or “District”) as a student with a disability, Other Health Impairment. 2 On January 11, 2023, the Parents, through their attorney, filed a Due Process Complaint (“DPC”) against the DOE.[3] In the DPC, the Parents allege that the DOE failed to offer the Student a Free Appropriate Public Education (“FAPE”) for the 2022-2023 school year.[4] Therefore, the Parents unilaterally placed the Student in a private school (“Private School”) for the 2022-2023 school year. [5]
In the DPC, the Parents allege that the Committee on Special Education (“CSE”) convened on June 14, 2022 to develop an Individualized Education Program (“IEP”) for the Student for the 2022-2023 school year, but the IEP created was not appropriate for the Student.[6] The CSE recommended an Integrated Co-Teaching (“ICT”) classroom setting with Special Education Teacher Support Services (“SETSS”) three times per week for English Language Arts (“ELA”) and counseling services at Public School [2].[7] The Parents disagreed with the program and placement and requested that the CSE reconvene taking into consideration the findings of a recent neuropsychological evaluation of the Student.[8] The CSE reconvened on November 18, 2022 and recommended the same program for the Student.[9] The DOE recommended that the Student return to Public School [1], a school he previously attended for a brief time during the beginning of the 2021- 2022 school year, where his IEP would be implemented.[10] The Parents disagreed with the program and placement and allege that both the program and placement offered by the DOE were inappropriate for the Student.[11] The Parents contends that the Private School is an appropriate placement for the Student. 12
By way of relief, the Parents seek an award of tuition reimbursement for the Student’s attendance at the Private School for the 2022-2023 school year.[13] The Parents allege that the equities support their claim for tuition reimbursement for the school year at issue since the Parents have fully cooperated with the CSE and properly gave the CSE written notice of their intent to unilaterally enroll the Student at the Private School. [14]
As discussed below, I find that the DOE denied the Student a FAPE for the 2022-2023 school year. I find that the Private School is appropriate and offers the Student specially designed instruction sufficient to meet the Student’s needs. In addition, I find that the equities support the Parents’ request for tuition reimbursement for the 2022-2023 school year. In addition, I find that the Student is entitled to appropriate special education transportation to and from the Private School.
PROCEDURAL HISTORY
On February 9, 2023, I was appointed as the Impartial Hearing Officer (“IHO”). On February 24, 2023, the parties appeared virtually for a pre-hearing conference (“PHC”). At the PHC, the DOE Attorney requested additional time to determine whether the case can be recommended for settlement. The Parents’ Attorney joined in that request, and the parties jointly requested a 30-day extension, which was granted.[15] The first hearing date was scheduled for April 12, 2023 in case the matter was not recommended for settlement. 16 A continued PHC was held on March [16], 2023. At that time, the DOE Attorney indicated the matter was recommended for settlement, so the hearing previously scheduled for April 12, 2023 was changed to a status conference (“SC”) instead. 17 On April [12], 2023, both parties appeared for a SC. The parties jointly requested an extension of the compliance date for settlement purposes, which I granted.[18] A second SC occurred on May [17], 2023. At that time, the DOE Attorney indicated that the case was still on a settlement track, so the parties requested an extension of the compliance date, which I granted. [19] However, since the school year was coming to an end soon, Parents’ Attorney requested to set a hearing date before the end of school year to prevent an issue with witness availability over the summer months in case the matter ultimately did not settle. 20 A hearing date was scheduled for June 9, 2023. 21
A virtual DPH was held on June 9, 2023, June 14, 2023, and June 21, 2023. 22 It was a closed hearing. On June 9, 2023, the Student’s mother was present (“Parent 1”) and represented by Parents’ Attorney. The DOE Attorney was also present. The DOE Attorney entered 11 exhibits into the hearing record over the objection of Parents’ Attorney. 23 The DOE Attorney declined to call any witnesses at the hearing and indicated that “the Department of Education is not putting on a prong 1 case.” 24 The DOE rested on the documentary evidence submitted into the hearing record. The Parents entered 30 exhibits into the hearing record without objection, including affidavit testimony from the neuropsychologist. 25 The neuropsychologist testified live for cross-examination and the Head of Lower Academic Support Program at the Private School testified live for direct examination and cross-examination. 26 The parties jointly requested to extend the compliance date, which I granted. 27
On June 14, 2023, the DPH continued. Parent 1 was present and represented by Parents’ Attorney. The DOE Attorney was also present. Parents’ Attorney called Parents’ third witness to testify, the Student’s Academic Support Program Teacher at the Private School. 28 The DOE Attorney cross-examined the Academic Support Program Teacher at the Private School, and the hearing was adjourned to June 21, 2023. 29 On June 21, 2023, the DPH continued. Parent 1 was present and represented by Parents’ Attorney. The DOE Attorney was also present. Parent 1 testified live for both direct and cross-examination. 30 The Parents rested, and the record was closed on July 14, 2023, upon receipt of the parties’ closing briefs. 31
The DOE took the position that although the DOE did not put on a prong 1 case at the hearing, the Parents failed to meet their burden in showing the appropriateness of the unilateral placement at the Private School. 32 In addition, the DOE asserted that any relief granted should be limited to the claims contained in the DPC and therefore, the Parents are not entitled to 20 SC 5/17/2023 Tr. 5. 21 SC 5/17/2023 Tr. 7-9. 22 See DPH 6/9/2023 Tr.; DPH 6/14/2023 Tr.; DPH 6/21/2023 Tr. 23 Initially, the DOE Attorney sought to enter 14 Exhibits into the hearing record. Parents’ Attorney objected to all 14 Exhibits coming into the hearing record. The DOE Attorney withdrew her request to enter Exhibits 1 and 14 into the record. In addition, I sustained Parents’ Attorney’s objection to Exhibit 4 coming into evidence as I do not believe it is relevant to the instant matter. However, I allowed Exhibits 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, and 13 into the hearing record over Parents’ Attorney’s objection. (See DPH 6/9/2023 Tr. 22). 24 DPH 6/9/2023 Tr. 23. 25 DPH 6/9/2023 Tr. 20. 26 DPH 6/9/2023 Tr. 30-36; DPH 6/9/2023 Tr. 38-65. 27 DPH 6/9/2023 Tr. 68-69; See Order of Extension 4. 28 DPH 6/14/2023 Tr. 7-22. 29 DPH 6/14/2023 Tr. 22-27; DPH 6/14/2023 Tr. 28. 30 DPH 6/21/2023 Tr. 6-30; DPH 6/21/2023 Tr. 30-35. 31 The parties’ closing briefs are included in the hearing record as IHO Ex. I (DOE) and IHO Ex. II (Parents). 32 IHO Ex. I. reimbursement for the neuropsychological evaluation.[33] The DOE also argued that notwithstanding the fact that reimbursing the Parents for the neuropsychological evaluation is beyond the scope of the DPC, the Parents are not entitled to reimbursement because the Parents did not show that they properly disagreed with the DOE’s evaluations which is required by law.[34]
The Parents took the position that the DOE denied the Student a FAPE for the 2022-2023 school year, the unilateral placement at the Private School was appropriate for the Student, and that the equities support an award of tuition reimbursement.[35] In addition, the Parents argue that even though reimbursement for the neuropsychological evaluation is not requested in the DPC, the DPC contains a “catch-all provision” asking the IHO to order any remedy deemed appropriate based on the hearing record.[36] Furthermore, the Parents argue that they did properly disagree with the DOE’s evaluations, or lack thereof, and under the law, they are entitled to reimbursement for the neuropsychological evaluation they privately obtained for the Student. [37]
FINDINGS OF FACT
After a full review of the hearing record, I make the following findings of fact and determinations. Overall, I find all exhibits admitted into the hearing record to be relevant and representative of the facts for which they were offered. As for the witnesses, I find no reason to doubt the veracity of their testimonies and therefore, I find all the witnesses credible. I base the following on the record generated at the hearing.
The Student is currently thirteen years old and was in the seventh grade at the Private School for the 2022-2023 school year.[38] The Student is bilingual, an athlete, a competitive swimmer, and enjoys riding his bicycle, skiing, attending church on Sundays, and doing community service as an active member of his community.[39] Moreover, the Student has been identified as a student with a disability by the DOE’s CSE and given the classification of Other Health Impairment.[40] The Student is diagnosed with Attention-Deficit/Hyperactivity Disorder (“ADHD”), combined presentation, and Specific Learning Disorder with impairment in reading (“Dyslexia”) and impairment in written expression (“Dysgraphia”). [41]
The Student’s disabilities impact him in school. Prior to moving from Texas to New York City with his family near the end of fifth grade, the Student had a history of receiving special education supports in Texas.[42] The Student “has struggled with attention and executive functioning throughout elementary school; [and] he also has a history of difficulties related to reading and writing.”[43] The Student was previously diagnosed with ADHD while living in Texas.[44] In May of 2021, before the Student began attending a NYC DOE public elementary school, Parent 1 emailed the DOE regarding the Student’s IEP and special education needs.[45] In September of 2021, Parent 1 emailed the DOE requesting the CSE to convene and review the Student’s evaluations, conduct an Assistive Technology (“AT”) evaluation, review the Student’s academic goals and create goals to address the Student’s executive functioning weaknesses, review the Student’s accommodations for testing, review the Student’s behavior supports, and create goals for counseling. [46]
For the 2021-2022 school year, the Student began sixth grade in an ICT classroom at Public School 1 mandated by his then-current IEP.[47] Parent 1 testified that at Public School 1, the Student was constantly subjected to bullying, harassment, and physical violence by other students, which affected his desire to attend school and created an unsafe environment for him.[48] The Student was also struggling academically in the ICT classroom and “failed to make appropriate progress.” [49] Ultimately, the Parents requested an immediate safety transfer for the Student. [50]
Thereafter, the Student was transferred to Public School 2 where he continued to struggle, feeling alienated, bullied, harassed by the other students and unsupported academically as well.[51] The Parents had “ongoing concerns regarding the Student’s “attention, executive functioning, reading, writing, and social emotional functioning.”[52] The Parents provided Public School 2 with the Student’s IEP and school personnel told the Parents the Student would be placed in an ICT classroom as mandated.[53] However, by the end of the year the 2021-2022 school year, the Parents were informed by Public School 2’s principal that the Student’s classroom only had one teacher, and therefore, was not an ICT classroom that the Student’s IEP mandated.[54] Throughout the 2021-2022 school year, Parent 1 consistently expressed her concerns regarding the Student’s academic needs, social emotional functioning, and executive functioning deficits. [55]
Parent 1 testified that she had no choice but to arrange for the Student to undergo an independent neuropsychological examination, which occurred on February 1, February 7, February 14, and March 8, 2022.[56] The neuropsychologist testified that prior to evaluating the Student, he reviewed all relevant documents related to his educational history, including the Student’s previous IEPs and his IEP at the time of the evaluation.[57] Furthermore, the neuropsychologist reviewed reports from the Parents and the Student’s teachers.[58] As a result of the neuropsychological evaluation, the Student was diagnosed with ADHD, Dyslexia, and Dysgraphia.[59] The neuropsychological evaluation report indicates that the Student “requires a small, structured, inclusive and supportive class and school program that provides smaller class sizes (less than 20 students), access to typical peers, and a challenging general education curriculum.”[60] Moreover, the neuropsychologist found that the Student requires a program that includes “daily opportunities to meet individually or in small groups with teachers who specialize in working with children with attention deficit disorder and executive functioning disorders by appropriately pacing material to meet individual learning styles, as well as to address his difficulties with reading, writing, and executive functioning.”[61] The neuropsychologist determined that the Student’s ADHD makes it very difficult for him to consistently partake in instruction, and that if his placement is in a large classroom setting, his ADHD would only be exacerbated by the many distractors.[62] The Student also presented with severe reading and writing difficulties, as his specific learning disorder weakened his abilities to decode and recognize words out of context and delayed his spelling and writing skills.[63]
On May 24, 2022, Parent 1 requested for the CSE to convene to develop an IEP for the 2022-2023 school year, considering the findings and recommendations of the neuropsychologist.[64] The CSE held two IEP meetings for the 2022-2023 school year.[65] First, the CSE convened on June 14, 2022.[66] Prior to this meeting, Parent 1 provided the CSE with the Student’s neuropsychological evaluation, although the evaluation report was not yet completed in its entirety.[67] Parent 1 requested that the CSE incorporate the neuropsychologist’s findings and recommendations for an evidenced-based program with explicit models, feedback, scaffolding, reinforcement, and cumulative review to address the Student’s executive functioning and attention deficits.[68] Parent 1 expressed that throughout the last school year, the Student did not receive sufficient academic and executive functioning support.[69] In addition, Parent 1 requested that the CSE develop targeted counseling goals to address the Student’s social-emotional challenges and provide him with a more specialized classroom setting, since the Parents and the neuropsychological had found that an ICT classroom setting was not providing adequate support to the Student. [70]
At the conclusion of the June 14, 2022 IEP meeting, the CSE recommended the same ICT classroom with 3x SETSS for ELA and counseling services.[71] The Parents disagreed with this program, expressing to the CSE that this program had already been shown to be deficient in meeting the Student’s needs during the previous school year. In addition, Parent 1 testified that she requested for Public School 2 to create a functional behavioral assessment for the Student, but Public School 2 refused.[72] Parent 1 also requested an executive functioning intervention plan for the Student since the Parents believed the program at Public School 2 consistently failed to address the Student’s executive functioning deficits.[73] Furthermore, the Parents disagreed with the Student’s June 14, 2022 IEP because it failed to include assistive technology, despite the Parents’ requests to evaluate the Student for AT. [74]
The Parents wrote to the CSE several times with their concerns regarding the recommended program.[75] On August 5, 2022, Parent 1 sent a letter to the CSE expressing her concerns with the June 14, 2022 IEP and the Student’s placement at Public School 2.[76] In the letter, Parent 1 requested that the CSE reconvene an IEP meeting and for the CSE to address the Student’s executive functioning deficits and how Public School 2 has been unable provide the Student with the individualized support he needs.[77] On August 8, 2022, Parent 1 sent the CSE the completed neuropsychological evaluation report and asked the CSE to consider the neuropsychologist’s findings and recommendations.[78] Parent 1 continued to express her desire to reconvene the IEP team throughout August of 2022. [79]
Thereafter, on August 22, 2022, the Parents sent a letter to the DOE (“Ten-Day Notice”), again expressing their concerns with the Student’s June 14, 2022 IEP and with the Student’s placement at Public School 2.[80] The Ten-Day Notice informed the DOE about the Parents’ intention to enroll the Student at the Private School and seek reimbursement for the 2022-2023 school year if the DOE failed to address the Parents’ concerns and offer the Student a FAPE. [81]
On the same day, the Parents signed a contract enrolling the Student in the Private School and in the Private School’s Academic Support Program.[82] The total cost of the tuition including fees for registration, Parents Association, technology, materials, and day trips was $84,500.00. [83] In addition to the total cost of the tuition, the Parents enrolled in an eight-payment tuition financing plan, costing an additional $700.00.[84] The Parents have paid the entire cost of the Student’s tuition for the 2022-2023 school year in full including fees totaling $85,454.10. [85]
After enrolling the Student in the Private School, the Parents continued to pursue an IEP reconvene meeting for the Student and the CSE ultimately reconvened on November 18, 2022. [86] At this IEP meeting, Parent 1 was joined by the Head of Lower Academic Support Program at the Private School who oversaw the Student’s program at the Private School and helped create a program that would address the Student’s deficits in writing, attention, and executive functioning.[87] The Head of Lower Academic Support Program at the Private School shared with the CSE the recommendations and observations that her and the Student’s teachers noticed about the Student’s academic, emotional, and behavioral functioning levels and needs.[88] The Head of Lower Academic Support Program at the Private School explained to the CSE at the IEP meeting that when she assessed the Student at the beginning of the 2022-2023 school year, the Student had difficulty reading, made miscues, often skipped words and lines, and his writing was disorganized.[89] Furthermore, she found that the Student “has some really weak executive functioning” which caused him to not submit his work on time. [90]
At the conclusion of the November 18, 2022 IEP meeting, the CSE recommended the same ICT classroom with group SETSS three times per week for ELA, group SETSS two times per week for executive functioning, and counseling services.[91] The Head of Lower Academic Support Program at the Private School expressed concern with the CSE’s recommendation for the same ICT classroom with SETSS.[92] She explained to the CSE that an ICT classroom is too big for the Student and would make it difficult for the Student to pay attention in class.[93] Additionally, she testified that group SETSS is also not appropriate because the Student will get distracted in a group setting.[94] Moreover, the neuropsychologist testified that “an ICT classroom has proven to be too large for [the Student] based on his performance [previously]… and would not provide him with the support he needs throughout the school day to remediate his ELA delays and monitor his effort and attention.” [95]
Despite the recommendations of both the neuropsychologist and the Head of Lower Academic Support Program at the Private School, the CSE recommended the ICT program with SETSS and counseling services, and the DOE sent the Parents Prior Written Notice (“PWN”) on December 1, 2022.[96] Along with the PWN, the DOE sent the Parents a School Location Letter recommending that the Student return to Public School 1 for the remainder of the 2022-2023 school year where his IEP would be implemented. [97]
The Parents notified the CSE of their disagreement with the Student’s November 18, 2022 IEP and the recommended school placement in a letter sent on December 21, 2022.[98] In the letter, the Parents expressed disappointment in the CSE for recommending the same public school placement for the Student in which the Parents had to secure a safety transfer from due to the severity of the bullying the Student experienced while attending Public School 1 at the beginning of the 2021-2022 school year.[99] Despite the Parents’ familiarity with the inappropriateness of the program at Public School 1, the Parents spoke over the phone with the assistant principal at Public School 1 to discuss the placement and whether the Student would be safe at the school.[100] Upon speaking with the assistant principal, the Parents still remained concerned about the inappropriateness of the ICT classroom at Public School 1 and whether the students who bullied and harassed the Student previously were still attending the school. [101]
Thereafter, the Parents decided to keep the Student unilaterally placed at the Private School for the 2022-2023 school year. The Private School “is authorized by the International Baccalaureate, accredited by the Council of International Schools and the Middle States Association of Colleges and Secondary Schools, and registered with the New York State Department of Education.”[102] The Private School “encourages students to accept differences, inspire and lead our community, and vigorously pursue excellence in all endeavors.”[103] The Private School creates an academic profile for each student which includes testing and classroom accommodations, and suggestions for classroom management to meet the students’ needs.[104] The Private School uses students’ neuropsychological evaluations, observations from teachers in the classroom, the parents’ observations, and the students’ goals to help meet the academic needs of the students to be successful at the Private School.[105] Many of the teachers at the Private School “have a special ed background, a literacy background, a reading specialist background… in the realm of reading and learning disabilities.”[106] The Private School also provides professional development courses and staff trainings to the teachers. [107]
During the 2022-2023 school year, the Student was in the seventh grade at the Private School and the Student’s class schedule consisted of 7 academic periods, including History/Social Studies, Design or Academic Support Program, Spanish, Science, Physical Education/Health, PreAlgebra, and English.[108] The Academic Support Program at the Private School “is designed to help students with learning differences succeed in the rigorous [Private School] curriculum.” [109] The main goal of the Academic Support Program “is to provide the structure and expertise of trained educators to maximize every student’s academic potential.”[110] For the 2022-2023 school year, the Student was paired with an Academic Support Program teacher to address specific curricular needs.[111] The Student was paired with Academic Support Program Teacher at the Private School who is certified in Wilson Reading Systems Level One and in Orton-Gillingham.[112] Academic Support Program Teacher at the Private School testified that she works one-on-one with the Student to support his academic and executive functioning needs. [113]
During the Academic Support Program sessions, the Student has individualized instruction to assist with homework, assignments, organization, or anything the Student needs help with to support his academic progress and executing functioning.[114] Academic Support Program Teacher at the Private School testified that the Student “has executive functioning difficulties, attentional difficulties, reading difficulties and also writing difficulties and [she is] able to provide him support in all of those areas.[115] Over a six-day cycle, the Student meets with the Academic Support Program Teacher at the Private School three times for 45 minutes for individualized instruction. [116] After each session, the Academic Support Program Teacher at the Private School provides the Student’s Parents with a written description of the Student’s needs and progress made that particular day. [117]
For the 2022-2023 school year, the Student successfully made the Private School’s honor roll, earning an average score above ninety percent in all of his classes.[118] Parent 1 testified that she has seen significant improvement in the Student’s organizational skills and believes the Private School is not only addressing his learning disabilities in reading and writing, but also is effectively addressing the Student’s executive functioning deficits.[119] In addition, the Private School allows the Student to use assistive technology to type his assignments instead of hand-writing, which is not something the CSE included in the Student’s IEP despite the Parents’ request. [120]
CONCLUSIONS OF LAW AND ANALYSIS
Tuition Reimbursement
This case concerns the Parents’ request that the DOE reimburse them for the cost of the Student’s tuition at the Private School for the 2022-2023 school year. When a parent believes that a school district has failed to provide a student with a FAPE, a parent may unilaterally enroll the child in a private school and seek tuition payment from the school district by filing a due process complaint.[121] The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” [122]
A district must pay for the cost of a student’s tuition at a private school if the three “prongs” of the Burlington/Carter test are met: (1) the district denied the student a FAPE; (2) the private school unilateral placement is appropriate; and (3) the equities favor an order of tuition reimbursement or funding.[123] In due process hearings under the IDEA in New York, school districts have the burden of proof, including the burden of production and burden of persuasion. However, there is an exception in that a parent seeking tuition reimbursement or funding for a unilateral parental placement has the burden of persuasion and burden of production regarding the appropriateness of such placement. [124]
Prong 1
The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.[125] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.[126] A school district has offered a student a FAPE when it complies with the procedural requirements set forth in the IDEA, and the IEP is reasonably calculated to enable the student to receive educational benefits.[127] Under the IDEA, students with disabilities are entitled to be educated in the least restrictive environment that meets their unique needs. [128]
Parents may allege procedural and/or substantive FAPE violations. For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” [129]
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.”[130] The District must offer “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’”[131] A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.[132] The IEP must be reviewed at least annually, and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year.[133] The IEP should: (1) accurately reflect the results of evaluations to identify the student's needs, 134 (2) provide for the utilization of sufficient special education programs or services,[135] and then (3) the IEP must be properly and timely implemented.[136] Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. [137]
In this case, the Parents alleged that the DOE denied the Student a FAPE for the 2022-2023 school year. The Parents alleged that the Student’s June 14, 2022 IEP and recommended placement where not appropriate for the Student, and that although the CSE did reconvene on November 18, 2022, the IEP created at that time was substantively the same at the June 14, 2022 program, except for the addition of group SETSS two times per week for executive functioning.[138] The Parents alleged that in both IEP meetings, the CSE failed to consider the findings and recommendations of the Student’s neuropsychological evaluation and instead, recommended an ICT classroom for the Student despite the neuropsychologist’s determination that this setting was too large to meet the Student’s unique needs. [139]
134
34 C.F.R. § 300.320(a)(1); 8 N.Y.C.R.R. 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008).
As to Prong 1 of the Burlington/Carter standard, the DOE failed to meet its burden at the hearing. The DOE Attorney indicated on the record in the DOE’s opening statement and in its closing brief that the DOE was not putting on prong 1 case and thus, was not going to attempt to meet its burden of showing the Student was provided a FAPE for the 2022-2023 school year. While the DOE submitted documentary evidence into the hearing record, a review of same offers no explanation as to how the CSE made its recommendation, how the IEP appropriately describes the Student, or whether the IEP is meaningfully calculated to confer educational benefit. In short, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating the June 14, 2022 IEP and the November 18, 2022 IEP, 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”.[140] The DOE did not present any evidence for the purpose of establishing that it provided the Student a FAPE and because the documentary evidence provided without supporting testimony, could not rebut the Parent’s allegations, I must find that the DOE failed to offer the Student a FAPE for the 2022-2023 school year.
Moreover, regardless of whether the DOE attempted to show at the hearing that the DOE provided a FAPE to the Student, a review of the evidence admitted into the hearing record supports a finding that the DOE did not provide the Student with a FAPE for the 2022-2023 school year. The two IEPs developed for the Student and the public school placements recommended by the CSE were inappropriate for the Student and could not meet the Student’s unique needs. The record shows that the ICT classroom recommended for the Student in both IEPs is too large and cannot provide the Student with the individualized instruction the Student needs. Primarily, the neuropsychologist testified credibly that “an ICT classroom has proven to be too large for [the Student] based on his performance [previously]… and would not provide him with the support he needs throughout the school day to remediate his ELA delays and monitor his effort and attention.”[141] Furthermore, the group SETSS mandated in the Student’s IEPs are also inappropriate to meet his needs. The Head of Lower Academic Support Program at the Private School testified credibly that, based on her assessment of the Student, group SETSS is not appropriate because the Student will get distracted in a group setting.[142] Therefore, I find that the programs mandated by both the June 14, 2022 IEP and the November 18, 2022 IEP are inappropriate for the Student and therefore, the DOE failed to offer the Student a FAPE for the 2022-2023 school year.
Furthermore, I find that it was extremely inappropriate for the DOE to recommend that the Student return to Public School 1 commencing in December of 2022, considering that the evidence shows that the Parents had to secure a safety transfer for the Student to be immediately removed from this school due to bullying, harassment, and violence he was experiencing from other students in the beginning of the previous school year.[143] Therefore, I find that both the programs and the placements offered to the Student for the 2022-2023 school year were inappropriate.
Prong 2
A unilateral private school placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.”[144] Parents need not show that the unilateral placement is perfect or that it meets all state educational standards.[145] Instead, parents must “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.”[146] In addition, parents seeking reimbursement or tuition funding “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”[147] While there are some exceptions, “’the same considerations and criteria that apply in determining whether the [DOE’s] placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” [148]
A unilateral placement is appropriate if it provides instruction specially designed to meet the unique needs of a student.[149] The determination of whether the unilateral placement serves a student’s individual needs and is reasonable calculated to enable a student to receive educational benefits does not depend only on one factor. Instead, courts assessing the appropriateness of a unilateral placement must consider the totality of the circumstances, including but not only, academic progress demonstrated through grades, test scores, progress reports, and regular advancement. [150]
The DOE alleged in its closing brief that the Parents’ unilateral placement is not appropriate. I disagree. A private school placement must be “proper under the Act.”[151] This means that the Private School must offer an educational program which meets the student’s special education needs.[152] I find that the Private School meets the Frank G. standard and provides the Student educational instruction that is designed to meet the Student’s unique needs and enable the Student to make progress. Primarily, the Private School is appropriate because it provides the Student with individualized attention and instruction with similarly functioning peers. This “comes within the IDEA definition of ‘special education,’ namely, ‘specially designed instruction . . . to meet the unique needs of a child.’”[153] The hearing record shows that the Private School developed an individualized academic profile for the Student which includes testing and classroom accommodations, and suggestions for classroom management to meet the Student’s needs.[154] The Private School used the Student’s neuropsychological evaluation, observations from teachers in the classroom, the Parents’ observations, and the Student’s own goals to help meet the academic needs of the Student and allow him to be successful at the Private School. [155]
Furthermore, the record demonstrates that the Academic Support Program at the Private School adapts instruction specifically “to help students with learning differences succeed in the rigorous [Private School] curriculum.”[156] The main goal of the Academic Support Program “is to provide the structure and expertise of trained educators to maximize every student’s academic potential.”[157] For the 2022-2023 school year, the Student was paired with an Academic Support Program teacher to address specific curricular needs.[158] When a teacher or program at a unilateral placement adapts instruction specifically to meet a student’s unique needs, these factors weigh in favor of the appropriateness of a parent’s unilateral placement. [159]
Furthermore, the Private School is appropriate for the Student because it provides the Student with the 1:1 Academic Support Program sessions three days per six-day cycle, which helps the Student access a meaningful education. The Student worked with the Academic Support Program Teacher at the Private School to address his executive functioning difficulties, attentional difficulties, reading difficulties and also writing difficulties.[160] In addition, the Academic Support Program Teacher at the Private School provides individualized instruction to the Student, assisting with homework, assignments, organization, or anything the Student needs help with to support his academic progress and executing functioning.[161] Overall, the record makes clear that there are many examples showing that the Private School is individualizing instruction for the Student, and these examples further support a finding that the Private School is appropriate under Prong 2.
Additionally, the Private School is appropriate because it provides the Student with instruction from trained teachers. The law in this circuit is that “a private placement need not provide certified special education teachers…for the disabled student,” but in this case, the Private School nevertheless ensures that its teachers have the training and specialization necessary to teach the Student based on his needs.[162] The evidence shows that many of the teachers at the Private School “have a special ed background, a literacy background, a reading specialist background… in the realm of reading and learning disabilities.”[163] The Private School also provides professional development courses and staff trainings to the teachers.[164] Therefore, the teachers have sufficient training to teach the Student based on his unique needs and learning profile.
In addition, the Private School is appropriate because the Student is making progress at the school. Significant educational progress can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement.[165] While a student’s progress at the private placement is not by itself sufficient to determine whether a placement is appropriate, that progress is a relevant factor in assessing the appropriateness of the placement.[166] In this case, the Student has made significant progress academically. The Student’s report card shows that he made the honor roll by “maintaining an average of over ninety percent” in all of his classes during Trimester 2.[167] In addition, Parent 1 testified credibly that she has seen improvement in the Student’s organizational skills and believes the Private School is adequately addressing the Student’s executive functioning deficits. [168]
Overall, the hearing record establishes that the Student’s unique special education needs have been met by the Private School. The instruction offered at the Private School was “reasonably calculated to enable the child to receive educational benefits.”[169] I find the DOE’s arguments concerning the appropriateness of the Parent’s unilateral placement without merit, and I find that the Parents have met their burden in proving that the Private School offered an educational program which met the Student’s needs under Prong 2 of the Burlington/Carter standard.
Prong 3
Under Burlington/Carter, if the parents are financially obligated to pay for the contracted tuition costs and have met their prong 2 burden, the contract must be fully reimbursed or directly funded by the district unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced.[170] The courts have “broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”[171] 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."[172] “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [DOE] throughout the process to ensure their child receive[s] a FAPE.”[173] Specifically, equitable considerations include the parents’ participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the District. [174]
In addition, a hearing officer may consider many additional factors, including whether a parent’s unilateral withdrawal of the child from the public school was justified, whether the parent should have sought need-based scholarships or other financial aid from the private school, whether there was any fraud or collusion in generating, or inflating, the tuition to be charged to the school district, and whether the arrangement with the school was fraudulent or collusive in any other respect. [175]
I find that the equities favor the Parents’ claims. Here, not only did the Parents fully cooperate with the CSE, but the evidence also shows that Parent 1 remained in constant direct communication with the DOE expressing her concerns regarding the Student’s programs and his needs not being met by the programs and placements. In addition, Parent 1 fully participated in the IEP process. The Parents’ cooperation and participation weighs in favor of the Parents’ request for a tuition award under Prong 3 of the Burlington/Carter standard.[176] Here, Parent 1 participated in the June 14, 2022 and the November 18, 2022 IEP meetings.[177] Additionally, Parent 1 shared the Student’s neuropsychological evaluation report with the CSE,[178] and Parent 1 made sure that the Head of Lower Academic Support Program at the Private School attended the November 18, 2022 IEP meeting. [179]
Furthermore, on August 22, 2022, the Parents provided the necessary Ten-Day Notice of their concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year and their intent to unilaterally place the Student in the Private School.[180] In the notice letter, the Parents list their concerns regarding the June 14, 2022 IEP.[181] In addition, the Parents notified the DOE of their concerns regarding the November 18, 2022 IEP.[182] Parent 1 routinely expressed her concerns in writing from May of 2021 to December of 2022. [183]
As discussed previously, the Parents signed an Enrollment Contract with the Private School for the Student to attend the school for the 2022-2023 school year.[184] According to the contract, the cost of the tuition for the 2022-2023 school year is $84,500.00.[185] In addition to the tuition, the Parents paid fees associated with a payment plan allowing the Parents to pay the tuition in eight installments.[186] According to the Private School’s Tuition Affidavit, the entire amount of the tuition and fees $85,454.10 has been paid in full.[187] I find no issue with the reasonableness of the cost of tuition for the Private School. The Student’s attendance record for the 2022-2023 school year shows that the Student attended the Private School regularly with only a reasonable number of absences.[188] Overall and after considering the hearing record, I find that the equities support the Parents’ claim for tuition reimbursement.
Additional Relief Requested
Transportation
The IDEA requires that a school district must provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’ even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport.”[189] Transportation may be deemed necessary “if in its absence a disabled child in private school would be denied ‘a genuine opportunity for equitable participation in [a special education program]’, . . . or special education program benefits “comparable in quality, scope, and opportunity for participation . . . [to those provided for] students enrolled in public schools.’” [190]
In addition, New York State Education Law defines special education 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.”[191] The requested transportation must also be “reasonable when all of the facts are considered.”[192] In a guidance document, the State Education Department has indicated that the CSE should consider and document a student’s mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, that the IEP “must include specific transportation recommendations to address each of the student’s needs, as appropriate,” and that when determining a student’s special transportation needs, such as the need for door-to-door transportation, it must document them.[193] Other relevant considerations may include the student’s age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. [194]
The Parents have requested an Order directing the DOE to provide appropriate special education transportation services for the Student to and from the Private School.[195] I find that transportation services are appropriate and that the Student is entitled to such. I find that Student is entitled to specialized transportation to access and benefit from their special education program. Although the 2022-2023 school year has ended, I am ordering the DOE to provide appropriate transportation for the Student as a declaration of his entitlement to such.
Reimbursement for the Neuropsychological Evaluation
In this matter, I must determine a threshold issue of whether the Parents may seek reimbursement for the neuropsychological evaluation for the first time at the hearing without the claim being specifically asserted in the DPC. Here, the Parents seek reimbursement in the amount of $6,300.00 for the neuropsychological evaluation conducted in February and March of 2022. [196] It is undisputed that this claim and the remedy sought is not specifically included in the Parents’ DPC. At the hearing and in their closing brief, the Parents argued that the IHO has broad discretion in ordering this relief, despite it not being specifically requested in the DPC, because the “hearing officer has the authority to grant any relief that she deems necessary to ensure that a child receive the FAPE to which he or she is entitled.”[197] At the hearing, Parents’ Attorney indicated that at the time filing the complaint, the request for reimbursement for the neuropsychological evaluation was not requested but it is something the Parents would like the IHO to consider, and the Parents did include in the DPC a request for the IHO to order anything that the IHO finds to be equitable and just.[198] Conversely, the DOE argued at the hearing and in its closing brief that the request for reimbursement for the neuropsychological evaluation should be denied because it is inadequately asserted in the Parents’ DPC.[199] The DOE Attorney objected “to any expansion of the hearing beyond the pleadings contained in the four corners of the due process complaint”[200] and argues that “while an IHO may generally have broad authority to fashion appropriate equitable relief, the party requesting an impartial hearing is required to identify the range of issues to be addressed at the hearing in the first instance.”[201] In addition, both parties argued their respective positions on the merits of this request in case I determine that the request is properly before me. [202]
A review of the case law on the threshold issue of whether I can consider reimbursing the Parents for the private neuropsychological evaluation despite it not being specifically asserted in the DPC shows that doing so is beyond my authority under the law. The law is clear that catch-all phrases are insufficient to preserve a claim that is not specifically asserted in a DPC.[203] Catch-all allegations do not preserve specific claims not asserted because the broad allegations fail to inform the DOE of a specific problem to be remedied.[204] Similarly, courts have stated that a reservation of rights contained in a DPC does not preserve additional arguments not raised in the DPC, and issues at a hearing are generally confined to the problems raised in the DPC since reading a DPC over-broadly hinders a school district’s ability to prepare for a hearing and may improperly expand the district’s burden of proof.[205] In addition, this applies to requests for relief as well, as the courts have previously held that a request for relief not included in the DPC cannot be considered absent an amended DPC or on consent of the school district. [206]
Here, the DOE Attorney did not consent and instead, she objected “to any expansion of the hearing beyond the pleadings contained in the four corners of the due process complaint.”[207] In addition, the Parents did not seek to amend their DPC in this matter. Therefore, I find that I do not have the authority to consider granting the Parents’ request for reimbursement for the neuropsychological evaluation, and for that reason, I will not make any determinations on whether the hearing record supports the relief on its merits.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
1. ORDERED that Parents’ claim for reimbursement for the student's unilateral placement at the Private School is GRANTED for the 2022-2023 school year. The New York City Department of Education shall reimburse the Parents in the amount of $85,454.10 within 15 days of the date of this Order. The DOE shall not require any documentation that is not already in the hearing record to issue reimbursement to the Parents.
2. ORDERED that the Department of Education shall provide to the Student, throughout the 2022-2023 school year, appropriate round-trip special education transportation between the Student’s residence and the Private School with pickup and drop off from the closest safe curb location. The DOE shall fund appropriate transportation consistent with this Order for any time the DOE fails to provide such transportation.
SO ORDERED.
DATED: July 25, 2023 Robin Levin, Esq.
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.
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Due Process Complaint 1/10/2023 12 pages
B. Parent Emails with DOE re: Requests for IEP Meeting Various 6 pages
C. Parent Email to DOE re: Request for Safety Transfer Various 6 pages
D. Parent Email to DOE re: Ongoing Safety Concerns 3/17/2022 1 page
E. Parent Email to DOE re: Request to Reconvene IEP Parent Email to DOE re: Proposed Executive 1/27/2022 2 pages
F. Functioning Plan Parent Email to DOE re: Neuropsychological Evaluation 3/15/2022 4 pages
G. Draft and Request to Reconvene IEP Parent Letter to CSE re: Summary Concerns to Address 2021-2022 25 pages
H. 6/21/2022 5 pages
at. IEP Meeting Parent Email to CSE re: Response to June 2022 IEP June 2022
I. Draft 6/24/2022 2 pages
J. Individualized Education Plan by CSE 6/14/2022 23 pages
K. Prior Written Notice 6/28/2022 9 pages
L. Letter to CSE re: June 2022 IEP Concerns Email to CSE re: REDACTED Neuropsychological 8/05/2022 4 pages
M. Evaluation Report and Request to Reconvene Parent Emails to DOE re: Follow Up Request on 8/08/2022 22 pages
N. Reconvene Various 6 pages
O. Ten Day Notice with CSE Confirmation 8/22/2022 4 pages
P. Parent Email to CSE re: Request for IEP Copy 12/02/2022 1 page
Q. Individualized Education Plan by CSE 11/18/2022 20 pages
R. Prior Written Notice and School Location Letter 12/01/2022 6 pages
S. Parent Emails with Recommended Public Placement Letter to CSE re: November 2022 and Public Placement Various 3 pages
T. Concerns 12/22/2022 4 pages
U. REDACTED Enrollment Contract 2022-2023 5 pages
V. REDACTED Description 2022-2023 2 pages
W. Student Tuition Affidavit 2022-2023 1 page
X. Student Schedule 2022-2023 1 page
Y. Student Attendance 2022-2023 1 page
Z. Student Report Card Trimester 2 2022-2023 12 pages
AA. Student Progress Report Trimester 2 2022-2023 3 pages
BB. Parent – REDACTED Communications February 2022-2023 51 pages
CC. REDACTED Neuropsychological Evaluation Invoice 2022 1 page
DD. Affidavit of REDACTED 5/31/2023 5 pages
DOE EXHIBITS
2. DOE Psychoeducational Evaluation 07/29/2021 6 pages DOE
3. REDACTED Certification 06/02/2023 2 pages DOE
5. BRIEF-2 Report, Parent 10/14/2020 59 pages DOE
6. BRIEF-2 Report, Teacher 9/29/2020 54 pages DOE
7. BRIEF-2 Report, Self-Report 10/14/2020 37 pages DOE
8. WISC-V 10/27/2020 2 pages DOE
9. Sensory Processing Measure- Second Edition 7/19/2021 9 pages DOE
10. Kaufman Test of Education Achievement- 3 10/14/2020 6 pages DOE
11. NEPSY II Second Edition 10/14/2020 2 pages DOE
12. Executive Functioning Testing 10/14/2020 2 pages DOE
13. Woodcock Johnson IV 10/14/2020 1 page DOE
IHO EXHIBITS
I. Department of Education- Closing Brief 7/14/2023 11 pages
II. Parents- Closing Brief 7/13/2023 14 pages
Footnotes
[1] Exhibits will be referred to as “Ex.” followed by lettered designations for Parents’ Exhibits, numbered designations for DOE’s Exhibits, and uppercase roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parents’ Exhibit A, page 1, will be referred to as (Ex. A-1). Transcripts will be referred to as “Tr.” followed by the page number(s) within the transcript and the type of conference or hearing and/or dates as needed.
[2] Ex. J-1; Ex. Q-1.
[3] Ex. A.
[4] Id.
[5] Ex. A-10.
[6] Ex. A-5.
[7] Id.
[8] Ex. A-7.
[9] Id.
[10] Ex. A-8-9.
[11] Ex. A-8-10.
[12] Ex. A-10.
[13] Id.
[14] Ex. A-10; Ex. A-7.
[15] PHC 2/26/2023 Tr. 12-13; See Order of Extension 1.
[16] PHC 2/26/2023 Tr. 13-14.
[17] PHC 3/16/2023 Tr. 5-6.
[18] SC 4/12/2023 Tr. 6-7; See Order of Extension 2.
[19] SC 5/17/2023 Tr. 5-6; See Order of Extension 3.
[33] Id.
[34] Id.
[35] IHO Ex. II.
[36] Id.
[37] Id.
[38] Ex. A-1; DPH 6/21/2023 Tr. 7.
[39] DPH 6/21/2023 Tr. 7; Ex. M-2.
[40] Ex. J-1; Ex. Q-1.
[41] Ex. M-15.
[42] Ex. M-13-14.
[43] Id.
[44] Ex. M-3.
[45] Ex. B-1-2.
[46] Ex. B-4-5.
[47] DPH 6/21/2023 Tr. 7.
[48] Id.
[49] DPH 6/21/2023 Tr. 8; Ex. M-3.
[50] DPH 6/21/2023 Tr. 11; Ex. C-3-6.
[51] DPH 6/21/2023 Tr. 8-11.
[52] Ex. M-3.
[53] DPH 6/21/2023 Tr. 9.
[54] Id.
[55] Ex. C; Ex. D; Ex. E; Ex. F.
[56] DPH 6/21/2023 Tr. 9-12; Ex. M.
[57] Ex. DD-2-3.
[58] Id.
[59] Ex. M-15. Ex. DD-4.
[60] Id.
[61] Ex. M-15.
[62] Ex. DD-4.
[63] Id.
[64] Ex. G-2.
[65] Ex. J; Ex. Q.
[66] Ex. J.
[67] DPH 6/21/2023 Tr. 12; Ex. M; Ex. DD-2.
[68] DPH 6/21/2023 Tr. 17; Ex. T.
[69] DPH 6/21/2023 Tr. 15-16; Ex. A-5.
[70] DPH 6/21/2023 Tr. 20-21; Ex. DD-5.
[71] Ex. J-17.
[72] DPH 6/21/2023 Tr. 17.
[73] Ex. A-6; Ex. L; Ex. F.
[74] Ex. A-6; Ex. I-1; Ex. A-6; Ex. L; Ex. O.
[75] Ex. H; Ex. I; Ex. L; Ex. M; Ex. N; Ex. O.
[76] Ex. L.
[77] Id.
[78] Ex. M-1.
[79] Ex. N.
[80] Ex. O.
[81] Id.
[82] Ex. U.
[83] Ex. U-4.
[84] Id.
[85] Ex. W.
[86] Ex. Q.
[87] Ex. Q-20; DPH 6/9/2023 Tr. 39.
[88] DPH 6/9/2023 Tr. 55.
[89] DPH 6/9/2023 Tr. 47.
[90] DPH 6/9/2023 Tr. 47-48.
[91] Ex. Q-12.
[92] DPH 6/9/2023 Tr. 56.
[93] Id.
[94] Id.
[95] Ex. DD-5.
[96] Ex. R. 1-4.
[97] Ex. R-5.
[98] Ex. T.
[99] Ex. T-2.
[100] Ex. T-2; Ex. S; DPH 6/21/2023 Tr. 26-27.
[101] Id.
[102] Ex. Z-1.
[103] Id.
[104] DPH 6/14/2023 Tr. 7-9.
[105] Id.
[106] DPH 6/9/2023 Tr. 42.
[107] Id.
[108] Ex. X.
[109] Ex. V-1.
[110] Id.
[111] Id.
[112] DPH 6/14/2023 Tr. 7.
[113] DPH 6/14/2023 Tr. 7-8.
[114] DPH 6/14/2023 Tr. 10-11.
[115] DPH 6/14/2023 Tr. 12-13.
[116] Id.
[117] Ex. BB; DPH 6/21/2023 Tr. 21.
[118] Ex. Z-12.
[119] DPH 6/21/2023 Tr. 21-22.
[120] DPH 6/21/2023 Tr. 22-23.
[121] Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 376 (2d Cir. 2014) (quoting Reyes ex rel. R.P. v. New York City Dep’t of Educ., 760 F.3d 211, 215 (2d Cir. 2014)).
[122] 20 U.S.C. § 1415(b)(6)(A).
[123] Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-15 (1993).
[124] NY Educ. Law § 4404(1)(c)).
[125] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[126] 34 C.F.R. §300.13.
[127] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[128] Oberti v. Board of Educ., 995 F.2d 1204 (3rd Cir. 1993).
[129] 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2).
[130] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[131] Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998).
[132] Endrew F.,137 S.Ct. 988, 999.
[133] 34 C.F.R. §300.324(b)(1)(i); 8 N.Y.C.R.R. §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010).
[135] 34 C.F.R. § 300.320(a)(4); 8 N.Y.C.R.R. 200.4(d)(2)(v); Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[136] See 8 N.Y.C.R.R. 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[137] J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).
[138] Ex. A.
[139] Id.
[140] Endrew F., 137 S.Ct. at 1002.
[141] Ex. DD-5.
[142] DPH 6/9/2023 Tr. 56.
[143] DPH 6/21/2023 Tr. 11; Ex. C-3-6.
[144] Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007).
[145] Frank G., 459 F.3d at 364-65; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).
[146] Frank G., 459 F.3d 356, 364; Gagliardo, 489 F.3d 105, 112.
[147] Gagliardo, 489 F.3d at 112.
[148] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364.
[149] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 C.F.R 300.39(a)(1); 8 N.Y.C.R.R. 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).
[150] Frank G., 459 F.3d at 364; See Gagliardo, 489 F.3d at 112.
[151] Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370.
[152] Gagliardo, 489 F.3d 105, 112,115; Walczak142 F.3d 119.
[153] Frank G., 459 F.3d at 365 (citing 20 U.S.C. § 1401(29)).
[154] DPH 6/14/2023 Tr. 7-9.
[155] Id.
[156] Ex. V-1.
[157] Id.
[158] Id.
[159] Frank G., 459 F.3d at 365-66.
[160] DPH 6/14/2023 Tr. 12-13.
[161] DPH 6/14/2023 Tr. 10-11.
[162] Frank G., 459 F.3d at 364.
[163] DPH 6/9/2023 Tr. 42.
[164] Id.
[165] Frank G., 459 F.3d at 365 (citing Knable, 238 F.3d at 768).
[166] Weaver v. Millbrook Cent. Sch. Dist., 812 F. Supp. 2d 514, 523 (S.D.N.Y. 2011).
[167] Ex. Z-12.
[168] DPH 6/21/2023 Tr. 21-22.
[169] Frank G., 459 F.3d at 364.
[170] See Carter, 510 U.S. at 16.
[171] J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011).
[172] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47 (2009).
[173] Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007).
[174] D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 (S.D.N.Y. 2011).
[175] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[176] M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 254 (2d Cir. 2012).
[177] Ex. J-22; Ex. Q-20.
[178] Ex. G; Ex. M.
[179] Ex. Q-20.
[180] 34 C.F.R. § 300.148(d)(1)(ii); Ex. O.
[181] Ex. O.
[182] Ex. T.
[183] Ex. B; Ex. C; Ex. D; Ex. E; Ex. F; Ex. G; Ex. H; Ex. I; Ex. L; Ex. M; Ex. N; Ex. O; Ex. P; Ex. S; Ex. T.
[184] Ex. U.
[185] Ex. U-4.
[186] Id.
[187] Ex. W.
[188] Ex. Y.
[189] Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir 1997) (citations omitted).
[190] Id. at 1375 (internal citations omitted).
[191] NYS Educ. Law §§ 4401(1); 4402(4)(a); See also NYS Educ. Law § 4401(2); 8 NYCRR § 200.1(ww).
[192] Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 (5th Cir. 1986).
[193] “Special Transportation for Students with Disabilities,” VESID Mem. [Mar. 2005], available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf).
[194] See Donald B., 117 F.3d at 1375.
[195] IHO Ex. II-13.
[196] IHO Ex. II-13-14.
[197] IHO Ex. II-11.
[198] DPH 6/9/2023 Tr. 11.
[199] IHO Ex. I-5.
[200] DPH 6/9/2023 Tr. 23.
[201] Id.
[202] IHO Ex. I-7-10; IHO Ex. II-12.
[203] T.G. ex rel. R.P. v. New York City Dept. of Educ., 973 F. Supp. 2d 320, 337 (S.D.N.Y. 2013); Phillips v. Banks and New York City Dept. of Educ., 2023 WL 2002108, at *6 (S.D.N.Y. 2023).
[204] Id.
[205] B.P. and A.P. ex rel. D.P. v. New York City Dept. of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); N.K. ex rel. J.D. v. New York City Dept. of Educ., 2016 WL 590234, at *5 (S.D.N.Y. 2016).
[206] M.R. ex rel. S.T. v. South Orangetown Cent. Sch. Dist., 2011 WL 6307563, at *13 (S.D.N.Y. 2011); A.M. ex rel. Y.N. v New York City Dept. of Educ., 964 F. Supp. 2d 270, 283 (S.D.N.Y. 2013).
[207] DPH 6/9/2023 Tr. 23.