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CASE NUMBER: 594929 - NYC: 244835
NYSED #594929 - NYC #244835
FINDINGS OF FACT AND DECISION
Case Number: 244835
Student’s Name: REDACTED (Student)
School District: N.Y.C. Dept. of Ed., District REDACTED
Service District REDACTED
Impartial Hearing Officer: Kevin T. McGrath, Esq.
Date of Filing: 01/12/2023
Hearing Requested by: REDACTED (Parents)
Dates of Hearing: 05/17/2023
06/12/2023
Record Close Date: 06/26/2023
Date of Decision: 06/26/2023
NAMES AND TITLES OF PERSONS WHO APPEARED
Names and Titles of Persons Who Appeared on May 17, 2023: For the Department of Education (DOE): REDACTED, Esq., Agency Attorney
For the Student:
REDACTED., Law Office of REDACTED
REDACTED – Parent and witness
REDACTED – Parent
Names and Titles of Persons Who Appeared on June 12, 2023: For the Department of Education (DOE): REDACTED, Esq., Agency Attorney
For the Student:
REDACTED Esq., Law Office of REDACTED
REDACTED – Parent
REDACTED – Parent
REDACTED – witness
INTRODUCTION
Parents, through counsel, filed a Due Process Complaint (DPC) on January 12, 2023. In the DPC, Parents alleges that the Department of Education (DOE) failed to offer Student a free
[1] appropriate public education (FAPE) for the 2022-2023 school year. [2]
Parents seek an award reimbursing them for the tuition paid for Student’s attendance at Private School, a private program not approved by the Commissioner of Education for the education of students with disabilities, for the 2022-2023 school year. The DPC asserts the DOE failed to provide the Student with a FAPE for the 2022-2023 school year when its Committee on Special Education (CSE): (1) failed to recommend a program calculated to confer an educational benefit on Student; (2) made a recommendation based on predetermined programs without considering Student’s individual needs; (3) refused to consider class size modifications within a regular education program, including as a potential reasonable accommodation; (4) did not discuss Student’s goals during the individualized educational plan (IEP) meeting; (5) recommended an integrated coteaching (ICT) program contrary to the opinions of the professionals who have direct knowledge of Student’s needs; (6) recommended programs which do not offer adequate or appropriate instruction, supports, supervision or services to meet Student's unique needs in order to make educational progress; (7) recommended a student to teacher ratio which is too large for Student to benefit educationally; (8) failed to follow the continuum of services as per IDEA; (9) failed to timely assess and/or otherwise meaningfully consider what, if any, educational methodologies and approaches are “reasonably calculated” to promote Student’s meaningful educational progress; (10) was only willing to consider placement in an ICT program during the IEP meeting; (11) failed to meaningfully consider Student’s private evaluations and the recommendations of professionals when creating the IEP; (12) failed to timely develop an IEP tailored to Student’s individual and unique needs; (13) failed to timely and meaningfully develop goals and objectives at the IEP meeting, with the participation of Student’s parents; (14) failed to provide goals and objectives that are appropriately tailored and individualized to Student; (15) failed to offer adequate levels and frequencies of related services; (16) failed to provide the requisite consistency in programming and supports; (17) failed to meaningfully include Parents in the development of the IEP and selection process of a school; and (18) agreed that Student requires intensive, individualized support and a smaller class size, but did not recommend a program that addresses these needs. [3]
As detailed below, I find: (a) the DOE failed to meet its burden and failed to offer Student a FAPE for the 2022-203 school year; (b) Private School offers Student specially designed instruction sufficient to meet Student’s needs; and (c) the equities support Parents’ requested relief.
PROCEDURAL HISTORY
I was appointed as the impartial hearing officer on February 9, 2023. The DOE did not hold a resolution meeting or file a due process response concerning this action. A Prehearing Conference was held on February 16, 2023, and a Prehearing Conference Summary and Order was issued the same day. Status Conferences were held on March 15, 2023, and April 20, 2023, with Status [4]
Conference Summaries and Orders issued and served on the parties on those dates. 5
A merits hearing was held before me on May 17, 2023 and June 12, 2023. At the May 17, 2023 hearing, DOE Representative produced nine (9) exhibits, and all were admitted into the record. [6] Also, at the May 17, 2023 hearing, Parents’ Representative presented nine (9) exhibits, and all were admitted into the record.[7] After opening statements, the DOE Representative rested their case without presenting testimony from witnesses. Parent #1 8 provided testimony on behalf of the Student and was cross-examined. The matter was then continued to another date.
The merits hearing continued on June 12, 2023 where Private School Representative [9] provided testimony on behalf of the Student, and the parties made closing statements.[10] Three orders of extension were granted in the action.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.[5] et seq.
8 Only Parent #1 provided an affidavit and testimony evidence. There was no suggestion in the record of a disagreement between the two parents regarding the facts, observations, conclusions, and opinions provided by Parent #1. Therefore, the decision uses the plural “parents” and assumes Parent #2 agrees with the facts, observations, conclusions, and opinions expressed by Parent #1.
FINDINGS OF FACT
After thoroughly reviewing the record, I make the following findings of fact and determinations.
Student is REDACTED years old for the 2022-2023 school year and attended the Private School on a 10-month school year basis. The Student’s eligibility for special education supports and services is not disputed based on the CSE designation and uncontested finding that the Student presents with “speech or language impairment.”[11] Specifically, Student has been diagnosed as having attention deficit disorder (ADHD); executive dysfunction disorder, with a visual special deficit and cognitive disorder; and a specific learning disorder, with impairments in math and reading. [12]
Under prior IEPs, Student has been receiving special education services between kindergarten and the eighth grade. Student had been educated in a general education setting with integrated coteaching services (ICT) and receiving related services, such as speech-language therapy and counseling services.[13] Parent #1 attended the March 30, 2022 IEP meeting (2022 IEP) and participated in the development of the 2022 IEP. The 2022 IEP meeting was planning for Student’s [14] transition to 9th grade, at a high school, for the 2022-2023 school year.
In preparation for the 2022 IEP meeting, Student was re-evaluated by Neuropsychologist in October 2021.[15] The report[16] prepared by Neuropsychologist concluded that Student has many academic strengths, but the testing identified Student has: (1) attention and executive functioning challenges which impacted on Student’s organization and sequencing skills, caused difficulty managing unstructured tasks, and slowed production pace - which impacts his efficiency on timed tasks; and 2) a visual-spatial processing weakness, which pervasively affects learning in reading fluency, math, and other symbol-based courses. Neuropsychologist opined that Student may have [17] difficulty managing increased academic demands, especially when presented with open-ended tasks or when directions are not clearly stated.[18] They opined that Student requires a small, full-time special education setting where they will receive targeted, research-based interventions implemented throughout the day and reinforcement throughout all curriculum areas. [19]
Neuropsychologist also attended the 2022 IEP meeting and a copy of the 2021 Neuropsychological Report was provided to the IEP team for consideration.[20] Ultimately, the 2022 IEP recommended that Student continue in an ICT setting and receive speech-language therapy.[21] At the 2022 IEP meeting, Parent #1 expressed their concerns that ICT was not an appropriate placement because Student has already been educated in the ICT setting but was struggling academically and testing below grade level. Parent #1 claims that DOE School Psychologist agreed 22 Student would benefit from a smaller class setting but that the DOE was unable to provide an alternative to ICT. 23 According to Parent #1, the DOE School Psychologist also stated that Student would need to essentially fail in the ninth-grade ICT setting before Central Based Support Team would be involved to recommend a non-public school placement. [24]
Parent #1 did not receive a copy of the 2022 IEP for nearly one year until they appeared for the March 2023 IEP meeting.[25] On August [23], 2022, Parent #1 sent the DOE a “Ten-Day Notice” of their intent to unilaterally enroll Student at Private School. [26]
Private School The Private School is a K-12 college preparatory program for students with learning disabilities.[27] Private School Representative is an art teacher and the “CSE Coordinator” at Private School. They have worked at this school for four (4) years and have 13 years of experience working with students and adults with disabilities.[28] They possess a Master’s Degree in Education and a Bachelor’s Degree in Art. Private School Representative’s responsibilities include teaching classes [29] in the visual arts, coordinating with the CSE committees regarding the students, appearing at the 2022 IEP meeting on behalf of the school, and working with students and the counseling team to coordinate students’ needs and services. [30]
The typical student at Private School was described as having average to high intelligence but with a learning disability (most classified as speech-language impairment or other health impairment). The school aligns its academic instruction with the Common Core curriculum but does make modifications to the curriculum. All head teachers have master’s degrees.[31] Specifically, Student’s ELA teacher has a Master’s in Special Education and Teaching, while the math teacher [32] has a Master’s in Mathematics.[33] The school employs three full-time speech-language therapists, who push into classes or run separate study hall classes, and occupational therapy is provided by consultants when needed. [34]
22 These allegations, opinions, and statements claimed by Parent #1 were contained in the DPC and repeated during Parent’s testimony. The DOE failed to present any witnesses to challenge the veracity of the allegations, either in the case-in-chief or rebuttal. Accordingly, while the allegations are hearsay, they will be strongly weighted in favor of being accurate.
Private School Representative is familiar with Student’s special education needs from their own classroom observations of Student; as well as coordinating with Parents, other teachers, and service providers. Student has an individualized education plan to address their executive function
35 36 diagnoses and ADHD. The education plan is also individualized for the different classes based on Student’s needs, especially with Student’s need for extra time to process, sort and organize when presented with new information. 37 Student’s largest class placement has nine (9) students and one teacher, with all students having similar abilities and educational needs. 38 Accommodations are made to support Student’s unique learning needs, including allowing extra time on tests and having instructions read aloud, repeated, and discussed.
The Student is progressing in all areas (i.e., academic, behavioral, communication, and socioemotional), during the 2022-2023 school year, according to Parent #1 and Private School Representative. Parent #1 observed that during the 2022-2023 school year Student (a) has an 39 increase in confidence and ability to succeed; (b) feels confident and engaged in reading and writing lessons; (c) has become willing to read in front of others without hesitation; (d) has improved their reading ability and progressed to more challenging books; and (e) has improved when identifying social cues, resulting in progress in social situations and making more meaningful friendships. 40 Private School reported Student progress in(a) reading so that he is fluently reading with appropriate expression and use of punctuation; (b) comprehension of text; (c) independently writing responses and answering explicit questions about text; (d) the ability to write multi-paragraph research essays; (e) independently solving algebraic equations; (f) a willingness to attempt more challenging math problems; and (g) completing and turning in homework. 41
Parents executed an enrollment contract in March 2022 with Private School for the 2022-2023 school year.[42] Tuition at Private School is $76,101.00.[43] Parents paid the tuition for 2022-2023 in full. The enrollment contract contains a provision allowing for the release from the agreement if [44]
Parents accept an appropriate public school placement.[45] Parent #1 acknowledges they remain responsible for the total amount of the tuition regardless of the outcome of a due process hearing.
Credibility
Upon considering the evidence, including all admitted documents and the testimonies of the witnesses, I determine the following. In accepting the documents, I found them all relevant and representative of the facts for which they were offered. The weight I afforded them will be reflected in the analysis. As for the witnesses, I found no reason to doubt the veracity of their statements or the earnestness of their relevant opinions, and therefore find all the witnesses and their testimonies credible. The relative weight I afford them will likewise be reflected in the analysis. It is hereby noted that although the DOE cross-examined Parents’ witnesses, said cross-examination did not serve to rebut the relevant testimony in question.
35
The witness did not provide any direct instruction to Student in the 2022-2023 school year. 36
June 12 Transcript. 37
Id. 38
Id. 39
Id. 40
Tr. at 26-28. 41
Ex F.
CONCLUSIONS OF LAW AND ANALYSIS
I hold that the DOE made procedural and substantive violations, which sufficiently establish a denial of FAPE for Student; Private School was an appropriate placement for Student; and the equities in the action favor Parents.
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 satisfied: (1) the DOE denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition.[47] In New York, 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 a 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. [48]
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.[49] When the local education district complies with the procedural requirements outlined in the IDEA, and when the IEP developed through those procedures is reasonably calculated to enable the student to receive educational benefits, a FAPE has been established.[50] 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.”[51] 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.”
Prong I
As detailed herein, the DOE did not establish under Prong I that FAPE was provided to the Student for the the 2022/2023 school year.
In support of its case in chief, the DOE offered nine (9) exhibits at the hearing but did not present witness testimony. At the hearing, the DOE’s Representative argued that their evidence demonstrated that Student was provided a FAPE for the 2022-2023 school year and that the DOE offered placement in a program that would allow the Student to make progress. Nonetheless, the [53] absence of any testimony from a member of the 2022 IEP team limits the impact of the DOE Representative’s arguments because the documents alone, and without any clarifying information, do not sufficiently establish that the 2022 IEP was tailored to meet Student's academic and other needs.
The DOE is not required to show that it attempted to “maximize” the potential of students with disabilities under Prong 1.[54] However, the IEP, among other requirements, must establish annual goals designed to meet the student's needs resulting from the student's disability, and must provide appropriate special education and services.[55] “Appropriateness” means that the IEP accurately reflects the results of evaluations to identify the student's needs,[56] offers sufficient special education services, [57] [58] and is properly implemented. To demonstrate a FAPE, the DOE must offer “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student an opportunity greater than mere ‘trivial advancement.”[59] In addition, the IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” [60]
Procedural violations in the formation of an IEP do not automatically entitle a parent to reimbursement but may if “they ‘impeded the child's right to a [FAPE],’ [or] ‘significantly impeded the parents' opportunity to participate in the decision-making process,’ or ‘caused a deprivation of educational benefits’."[61] The cumulative effect of multiple procedural violations may constitute a denial of FAPE, even if the violations considered individually do not.
The U.S. Court of Appeals, Second Circuit has clearly held there is no statutory provision or regulation that requires an IEP be produced at the time parents demand, "[i]nstead, school districts must only ensure that a child's IEP is in effect by the beginning of the school year and that the parents are provided a copy."[63] However, even when a school district failed to timely provide a copy of the IEP to the parents, a school district may nonetheless have fulfilled its IDEA procedural obligations where the parents had the "opportunity to participate in the decision-making process." [64] Even if parents received an IEP after the first day of school, there is no denial of FAPE where the parents were able to meaningfully participate in the CSE meeting where the relevant program information was discussed. Here, the record clearly shows that the parents were able to meaningfully participate in the 2022 IEP meeting. However, without a copy of the 2022 IEP, Parent’s ability to participate in Student’s education was diminished. This alone did not result in the denial of FAPE.
Parents also argue that the DOE denied Student a FAPE from the failure to provide a timely school placement location for the 2022-2023 school year. Under the IDEA, the local education agency is required to provide the "frequency, location, and duration" of the "services" to be provided. [65] Despite the reference to "location" in Section 300.320(a)(7), the Second Circuit has held that it is not a per se procedural violation for the IEP to omit the name of the specific school, with such information to follow.[66] Still, the school designation cannot come so late that it impedes the parents' ability to participate meaningfully in the school selection process.[67] For instance, a procedural violation occurred where the equivalent of a school location letter was sent "on June 15 for a school year beginning on July 6,” "on June 18 for a school year beginning on July 5," and on “June 18
68 [69] for a school year beginning on July 2.”[70] “[T]he crux of the right to meaningfully participate in the school selection process is the right to ‘evaluate the school assignment,’ i.e., the right to acquire relevant and timely information as to the proposed school.” [71]
In this action, the Parents are correct that the combination of DOE's actions impeded their rights. The DOE did not timely send the IEP or provide a school placement letter for the 2022-20223 school year. The DOE has not presented any evidence or testimony to dispute these allegations. Particularly salient here, as in the F.B. case, was the need for the Parents to identify and evaluate the particular classroom, teacher, and resources that would be provided to Student.[72] In sum, "the IEP could not be meaningfully evaluated independent of the proposed placement's ability to implement it." In failing to provide a school placement letter or to provide Parents with information [73] about the actual classroom and curriculum to which Student would be assigned, the DOE impeded the Parents' ability to participate meaningfully in the school selection process.
The U.S. Court of Appeals, Second Circuit, has held that a parent can challenge the placement location if the placement school is "facially deficient" and "cannot satisfy the IEP's requirements." [74]
Accordingly, the absence of a placement location demonstrates that the DOE failed to provide a location that has space for Student and could comply with the 2022 IEP requirements.
Taken together, a) the failure to provide the 2022 IEP, b) the failure to provide a school placement letter, and c) the failure to establish a location was provide that could comply with the 2022 IEP requirement were significant procedural violations "displaying a pattern of indifference to the procedural requirements of the IDEA"[75] The Parents' right to participate is not merely the right to speak, especially where, as here, the record is devoid of evidence that the CSE meaningfully considered the Parents' proposed placement.
The testimony and documentary evidence also demonstrates the creation and recommendations of the 2022 IEP denied FAPE for the Student. The DOE proposes placing Student in an ICT setting for instruction in academic subjects. The DOE fails to establish that this student would be able to maintain academic progress in the larger group setting and make academic progress as the curriculum became harder in high school, especially considering the reported academic struggles during the sixth, seventh, and eighth grades, detailed by Parent #1.
68
Id., citing FB v. N.Y. City Dept. of Educ., 132 F. Supp. 3d 522, 541-43 (SDNY 2015).
The 2022 IEP only mentions the consideration of an alternative placement of SETSS services or placement in a 12:1 community school setting. Moreover, the uncontested testimony establishes that the DOE School Psychologist agreed that Student required a smaller class setting but that the DOE did not have a smaller class option available at that time. Additionally, the uncontested testimony establishes that DOE School Psychologist stated that Student would need to fail in the 9th grade before another smaller class size setting could be provided. At the 2022 IEP meeting, Parents objected to ICT as being too large or the Student previously not making progress in an ICT setting. Accordingly, the 2022 IEP and recommendations were not tailored to Student’s individual needs and abilities, demonstrating a denial of FAPE.
I conclude that the weight of the evidence in the records indicates that the procedural and substantive violations resulted in a deprivation of educational benefits to the Student. Accordingly, based on the above, I hold the DOE failed to provide the Student with a FAPE for the 2022-2023 school year.
Prong II
As detailed herein, Parents sufficiently established that Private School was a proper placement for the Student.
A private school placement must be “proper under the Act.”[76] This means the Private School must offer an educational program that meets students’ special education needs.[77] A parent seeking tuition reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” When determining whether a unilateral placement
[78] is appropriate, the issue turns to whether the placement is “reasonably calculated to enable the child to receive educational benefits.”[79] A private placement is appropriate if it provides instruction designed to meet a student’s unique needs.[80] A parent needs only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a student with a disability, supported by such services as are necessary to permit the child to benefit from instruction.
Taken as a whole, the testimony and documentary evidence show the Private School meets the Frank G. standard and “provides educational instruction specially designed to meet the unique needs” of the Student that will enable them to make progress. The evidence demonstrates the Private School is an appropriate placement because they: (1) specialize in serving students with difficulties in the acquisition of reading and writing skills and special education needs[82] and have hired teachers specially trained to do so; (2) provide the Student with a student-to-teacher ratio of no more than [83]
9:1 for academic instructions[84] (3) individualizes instruction for the Student in education instruction; [85] and (4) the Student is making objectively established progress. [86]
The Private School provides services in compliance with the needs of the student. Specifically, Private School Representative and Parents have demonstrated that the Student is making educational progress. Further, the DOE Representative’s cross-examination did not establish any evidence to dispute the claims Student was making progress.
As a result of the above, I hold that Parents have met their burden in proving that Private School offered an educational program that met Student’s needs under Prong II of the Burlington/Carter standard.
Prong III
As detailed herein, the equities favor the Parent regarding the unilateral placement of the Student at the Private School.
The DOE Representative argued, essentially, that the equities did not favor the Parent because the Parent did not meaningfully participate in the IEP process and would not accept a placement other than at the Private School. On this evidence, the DOE Representative argued that Student did not require tuition reimbursement to the Private School.
Under the third Burlington/Carter prong, courts consider “equitable factors” relevant to an order of tuition. “[A] major consideration in deciding whether the third factor is satisfied is whether [87] the Parents have cooperated with the [DOE] throughout the process to ensure their child receive[s] a FAPE.”[88] Specifically, equitable considerations include a parent’s participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the DOE. [89]
In this matter, Parents attended the 2022 IEP meetings. They engaged in a dialogue about Student’s education plan and their concerns about the 2022 IEP (specifically regarding the ICT setting not providing sufficient support) and provided a copy of the 2022 Neurologist Report.[90] The testimony establishes that Parents engaged in further discussions with Public School Psychologist after the 2022 IEP meeting.[91] Parents provided timely “Ten-Day Notice” of their concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year.[92] Parents detailed specific concerns regarding the Student’s special education in the “Ten-Day Notice.”[93] Furthermore, Parents notified the DOE of their intention to place the Student at Private School unilaterally. [94]
The Parents seek reimbursement for their Private School tuition costs. This is an available remedy under the IDEA.[95] The Parents signed a contract with Private School for the 2022-2023 school year.[96] Parents would remain liable for all tuition if a claim under IDEA were unsuccessful.[97] I find no issue with the reasonableness of the costs associated with Private School, including tuition. Based on the uncontested testimony of Parent #1, I find no issue with the timing of the contract execution, the decision to engage in admission evaluations at Private School, or the use of a down payment to reserve a space at a potential school in March of 2022. Moreover, I find that the weight of the evidence establishes that Parents cooperated with the DOE and the CSE’s efforts to develop an IEP and recommendation by providing attending the 2022 IEP meeting, having representatives from Private School attend the 2022 IEP meeting; providing Private School progress updates, and engaging in multiple reasonable, but unproductive, attempts to investigate the DOE’s recommended placement location.
Overall, and after considering the record, I hold that the equities sufficiently support Parents’ claim for tuition reimbursement and order the DOE to fully fund Student’s tuition to Private School for the 2022-2023 school year.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY
ORDERED THAT:
(1) The DOE denied Student a FAPE for the 2022-2023 school year, and
(2) Parents’ claim for tuition reimbursement for Student’s unilateral placement at the Private School is GRANTED for the 2022-2023 school year. The DOE shall reimburse Parents for Student’s tuition at the Private School for the 2022-2023 school year in an amount not to exceed $75,730.00 within 30 days of receipt of the invoice from the Private School or Parents.
SO ORDERED.
Kevin T. McGrath Dated: June 26, 2023 Kevin T. McGrath, Esq. (signed electronically) Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the Parents 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 A – REDACTION IDENTIFICATION PAGE
Redacted Information Term Used In FOFD
REDACTED Student
REDACTED Date of Birth
REDACTED Student’s I.D. Number (OSIS)
REDACTED Parent #1
REDACTED Parent #2
REDACTED DOE Representative
REDACTED Parents Representative
REDACTED Private School
REDACTED Private School Representative
REDACTED Public School #1
REDACTED Neuropsychologist
REDACTED DOE School Psychologist
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
DISTRICT EXHIBITS
1. Individualized Education Program 3/30/2022 March 2022 21 pages District
2. Prior Written Notice Package 4/28/2022 4 pages District
3. Teacher Progress Report – Math 3/4/2022 3 pages District
4. Teacher Progress Report – ELA 3/16/2020 2 pages District
5. Teacher Progress Report – Science 3/16/2022 2 pages District
6. Teacher Progress Report – Social Studies 3/07/2022 3 pages District
7. DOE Speech and Language Referral 09/17/2021 1 page District
8. Notice of Special Education Recovery 12/20/2021 3 pages District
9. Due Process Complaint 01/11/2023 8 pages District
PARENTS EXHIBITS
A. Hearing Request 1/11/2023 7 pages
B. Neuropsycholgical Assessment 10/22/2021 21 pages
C. Ten Day Notice 8/23/2023 3 pages
D. Ten Day Notice Confirmation 8/23/2023 1 page
E. REDACTED Tuition Affidavit 1/10/2023 1 page
F. REDACTED School Semester 1 Report January 2023 3 pages
G. REDACTED School Class Schedule 2022-2023 2 pages
H. REDACTED School Upper School Phasing Document Un-dated 6 pages
I. REDACTED School Program Description Un-dated 2 pages
IHO EXHIBITS
I. Pre-Hearing Conference Summary and Order 2/16/2023 1 page IHO
II. Conference Hearing Summary and Order 3/15/2023 1 page IHO
III. Conference Hearing Summary and Order 4/20/2023 4 pages IHO
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Ex. A.
[3] Id.
[4] IHO Ex. I.
[5] IHO Ex. II and III.
[6] See Appendix B to this Order.
[7] Id.
[9] The FOFD is being completed without a copy of the hearing transcript from the June 12, 2023. As such, the FOFD will cite to the transcript pages from the May 17, 2023 hearing but will not cite to a specific page for any testimony from the June 12, 2023 hearing. The citation of “June 12 Transcript” will be used for reference to testimony from June 12, 2023.
[10] During closing statements, DOE Representative made some claims regarding the failure of the DOE to issue a placement location letter, which the record may not have supported. The parties were allowed to submit post-closing statements on the issue; however, DOE Representative sent a correspondence withdrawing their claim. See IHO Ex. IV.
[11] Id.
[12] Ex. B-13.
[13] Tr. at 18-19.
[14] Tr. at 19.
[15] Student was evaluated in December 2015 by another evaluator and in September 20219 by Neuropsychologist. Ex. B at pg. 4-5.
[16] Ex. B. The report will hereinafter be referred to as the “2021 Neuropsychological Report.”
[17] Ex. B at pg 14-15
[18] Ex. B at pg 14.
[19] Ex. B. at pg 16.
[20] Tr. at 19-20.
[21] Ex 1-14. 2022 IEP recommends therapy of one [1] 40-minute session per week in a 4-person group setting in a general education classroom [1x40 class group] and one [1] 40-minute session per week in a 4-person group setting in a separate therapy classroom [1x40 separate group].
[23] Tr. at 22-23.
[24] Tr. at 23.
[25] Tr. at 25. This allegation was raised in the DPC and remains uncontested by the DOE. The allegation is accepted as true because the DOE did not submit any documents or testimony to demonstrate the 2022 IEP was timely provided to Parents.
[26] Ex. C.
[27] June 12 Transcript
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Witness admitted the math teacher did not have a degree in education and was unsure if the witness has a NYS license in education. However, the lack of a teaching degree does not render the teacher unqualified for a private school setting. Id.
[33] Id.
[34] Id.
[42] June 12 Transcript.
[43] Ex. E.
[44] Id.
[45] June 12 Transcript.
[46] Ex. K at ¶19.
[47] See Sch. Comm. of Burlington v. Dept. of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7, 12-15 (1993).
[48] NY Educ. Law § 4404(1)(c).
[49] See 34 C.F.R. § 300.13.
[50] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 US 176, 206-207 (1982).
[51] Endrew F. v. Douglas County Sch. Dist. RE-1, 580 US 386 (2017).
[52] 20 U.S.C. § 1415(b)(6)(A).
[53] June 12 Transcript.
[54] Rowley, 458 US at 189, 199; Grim v Rhinebeck Cent. Sch. Dist., 346 F3d at 377, 379; Walczak v. Florida Union Free Sch. Dist., 142 F3d 119, 132 (2d Cir. 1998) (an “appropriate” education is “not one that provides everything that might be thought desirable by loving parents”).
[55] See generally, 34 CFR § 300.320(a) and 8 NYCRR § 200.4(d)(2).
[56] See 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. Dept. of Educ., 2008 WL 2736027, at 6 (SDNY July 3, 2008), establishes annual goals related to those needs.
[57] See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dept. of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dept. 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.
[58] See 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087
[59] Cerra v. Pawling Cent. Sch. Dist., 427 F3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F3d at 130.
[60] Mrs. B. v. Milford Bd. of Educ., 103 F3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 US at 192.
[61] R.E. v. N.Y.C. Dept. of Educ., 694 F3d 167 (2012), citing 20 U.S.C. § 1415(f)(3)(E)(ii).
[62] See Werner v. Clarkstown Cent. Sch. Dist., 363 F Supp 2d 656, 659 (SDNY 2005).
[63] E.L. v Bdford Cent. Sch. Dist., 2022 US Dist LEXIS 153538, at *43-44 (SDNY Aug. 25, 2022) citing Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 193 (2d Cir. 2015) (finding a school district "fulfilled its legal obligations by providing the IEP before the first day of school"); see 34 C.F.R. § 300.342(a) ("At the beginning of each school year, each public agency shall have an IEP in effect for each child with a disability within its jurisdiction.").
[64] N.K. v. New York City Dept. of Educ., 961 F. Supp. 2d 577, 586 (SDNY 2013); see also Cerra, 427 F.3d at 193 (holding the school district fulfilled its procedural obligations because the parents "had numerous opportunities to participate in meetings with respect to the identification, evaluation, and educational placement of the child").
[65] 34 C.F.R. § 300.320(a)(7).
[66] V.A. v City of NY, 2022 US Dist LEXIS 84556, at 14-15 (EDNY 2022); T.Y. ex rel. T.Y. v. NYC Dept. of Educ., 584 F.3d 412, 419-20 (2d Cir. 2009); C.F., 746 F.3d at 79.
[67] S.Y. v. N.Y.C. Dept. of Educ., 210 F. Supp. 3d 556, 574-75 (SDNY 2016).
[69] Id.
[70] Id.
[71] FB v. NYC Dept. of Educ., 132 F. Supp. 3d at 541-42, quoting V.S. ex rel. D.S. v. N.Y. C. Dept. of Educ., 25 F. Supp. 3d 295, 299 (EDNY 2014); S.Y. v NYC Dept. of Educ., 210 F Supp 3d at 573-575.
[72] FB v. NYC Dept. of Educ., 132 F. Supp. 3d at 541 (Finding that the information sought by Parents was directly relevant to their ability to assess the proposed placement and its capacity to implement the IEP).
[73] Id. at 544.
[74] M.O. v. N.Y.C. Dept. of Educ., 793 F.3d 236, 244 (2d Cir 2015); see also E.B. v NY City Dept. of Educ., 2016 US Dist LEXIS 90311, at 17 (SDNY 2016).
[75] S.Y. v NYC Dept. of Educ., 210 F Supp 3d at 575-576, citing L.O. v. NYC Dept. of Educ., 822 F.3d 95, 124 (2nd Cir. 2016).
[76] Carter, 510 US at 12, 15; Burlington, 471 US at 370.
[77] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F3d 105, 112, 115 (2d Cir. 2007); Walczak, 142 F3d at 129 (2d Cir. 1998).
[78] Gagliardo, 489 F3d at 112 (“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.”; Frank G. v. Bd. of Educ. of Hyde Park, 459 F3d 356, 364 (2d Cir. 2006).
[79] Frank G., 459 F3d at 364; see Gagliardo, 489 F3d at 115.
[80] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 C.F.R. § 300.39(a)(1); 8 NYCRR § 200.1(ww); Hardison v. Bd. Of Educ. Of the Oneonta City Sch. Dist., 773 F3d 372, 386 (2d Cir. 2014).
[81] Gagliardo, 489 F3d at 112, citing Frank G., 459 F3d at 364-65.
[82] June 12 Transcript.
[83] Id.
[84] Id.
[85] Id.
[86] Id.
[87] Gagliardo, 489 F3d at 112.
[88] Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at 6 (SDNY Nov. 20, 2007).
[89] See D.A. v. New York City Dept. of Educ., 769 F Supp 2d 403, 419-20 (SDNY 2011).
[90] June 12 Transcript; Ex. 1.
[91] June 12 Transcript.
[92] Ex. C.
[93] Id.
[94] Id.
[95] See Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F Supp 2d 403, 406 (SDNY 2011) (Parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”).
[96] Tr. at 29.
[97] Id.
[98] See M.H. v. N.Y.C. Dept. of Educ., 685 F3d 217, 254 (2d Cir. 2012); see also C.F. ex rel. R.F. v. N.Y.C. Dept. of Educ., 746 F3d 68, 82 (2d Cir. 2014).