New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 595641 - NYC: 245364

FINDINGS OF FACT AND DECISION

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 03/02/2023

03/24/2023

05/02/2023

Actual Record Close Date: 05/06/2023

Decision Date: 05/08/2023

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/02/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], Attorney

For the Department of Education:

[REDACTED], Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/24/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

For the Department of Education:

[REDACTED], Attorney

[REDACTED], School Psychologist

NAMES AND TITLES OF PERSONS WHO APPEARED ON 05/02/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

For the Department of Education:

[REDACTED], Attorney

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

Exhibit Date Document Pages Entered 03/02/2023 A January 26, 2023 Demand Process Complaint (DPC) 05 Entered 03/24/2023 B March 29, 2022 Individualized Education Program (IEP) 23 C August 15, 2022 Letter from Parent to NYCDOE 04 D October 24, 2022 Letter from Parent to NYCDOE 04 E February 27, 2023 School Progress Report 01 [REDACTED] Elementary School F 2022-2023 General Studies Report Card 02

Semester 1 [REDACTED] Elementary School G March 2, 2023 Attendance Record 01 [REDACTED] Elementary School H September 6, 2022 Tuition Contract 01 [REDACTED] Elementary School I March 13, 2023 Tuition Affirmation 01 [REDACTED] Elementary School J 2022-2023 Daily Schedule 01 [REDACTED] Elementary School K 2021 Family Tax Return 03 Entered 05/02/2023 L April 27, 2023 Affirmation of [REDACTED] 08 M April 26, 2023 Affirmation of [REDACTED] 03

DEPARTMENT OF EDUCATION (DOE)

Entered 03/24/2023 Exhibit Date Document Pages 1 3/29/2022 Individualized Education Program (IEP) 22

2 7/12/2022 Prior Written Notice 4

3 7/12/2022 School Location Letter 2

4 11/18/2019 Social History Update 2

5 11/18/2019 Psychoeducational Evaluation 5

6 Fall 2020 [REDACTED] Student Related Service Report 3 (received 4/14/21)

7 undated [REDACTED] School Progress Report (1st Grade) 1 (received 4/14/21)

IMPARTIAL HEARING OFFICER

Entered 03/02/2023 I Notice of Appointment, 02/06/2023, 4 pages

II Notice of Appearance, 02/10/2023, 1 page Entered 05/02/2023 III Notice of Appearance, 05/02/2023, 1 page

INTRODUCTION

On 02/06/2023, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Pre-Hearing Conference took place, on 03/02/2023, and Hearing commenced, on 03/24/2023, to allow an opportunity for the DOE to defend against the allegations contained in the DPC.

Appended to the record are lists of persons in attendance and the documents received in evidence.

Due Process Complaint (DPC) alleges a failure of the DOE to provide an appropriate IEP and placement for the 2022-2023 school year. (Ex A 1)

Parent seeks relief to remedy the alleged failure, including: funding for unilateral placement (UP), at [REDACTED] Lower School (UP). (Ex A 5)

Parent, also raised a potential claim relating to reimbursement for potential transportation costs incurred, in the event the DOE did not provide Student transportation. Evidence was not presented regarding this form of relief.

JURISDICTION

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

THE POSITION OF EACH PARTY

The DOE sought to defend its offer of a FAPE, for the 22-23 school year, via The IEP, of 03/29/2022. (Ex 1)

The DOE submitted Documentary Evidence and presented one Witness.

Evidence presented is considered below.

[REDACTED], School Psychologist

Witness Testimony included:

- Outlining qualifications, duties and responsibilities as a DOE School Psychologist (T 23-26); - Having written the Student’s 03/29/2022 IEP (Ex 1); - Familiarity with the Student’s needs, at the time of the IEP meeting (T 26-28); - Witness relied on various Student documents in assembling the IEP (Ex 1) (T 32-33); - Student social and emotional needs were discussed, at the IEP meeting, and services provided, specifically group counseling (T 35-37); - Supports were included to address Student’s physical needs (T 37-38); - Regarding IEP goals: “…our goals in terms of related services would typically come from a progress report that the school had sent. If the school didn't send a progress report to us, quite frankly, a lot of the time, we have to rely on older goals from a previous IEP or look at a goal that was on a previous IEP and create a similar one, because we don't have any evidence of improvement in that area, if we don't have any progress reports from the school…And -- I'm not -- I'm not an occupational therapist or a speech therapist. I don't find that I'm exactly qualified to create a speech or an OT goal on my own, so I'd have to rely on goals that other people have put forth.” (T 41); - Witness reviewed the IEP recommendations (T 42-43, Ex 1); - Regarding the IEP recommendations, the Witness states: “we felt it was appropriate. [Student] would not be a student that would be recommended a specialized school, so a District 75 would not be appropriate for her, because it would be too restrictive of a setting. She's got a lot of skills, and she would not thrive in that type of environment…She also, however, needs a significant level of support that a general education classroom would not provide her with. So a 12:1:1 in a nonspecialized school still follows the general curriculum, just at a different pace and with different methodologies in place, different ways of teaching. And she still gets the support that she needs. So that's why we felt it was the most appropriate setting.” (T 43); and - Related services were recommended based on what was previously recommended (T 43-44).

1 3/29/2022 Individualized Education Program (IEP)

IEP includes:

- Disability Classification of Speech or Language (Ex 1-1); - Evaluation results from 05/24/2017 (Ex 1-1); - Lack of success in administering some Student testing; and - Results of an assessment in November of 2019, indicating Below Average and Well Below Average scores. Related Service goals, which can be sourced, are drawn from a Fall 2020, UP Student Related Service Report (Ex 6), for example - will increase meaningful conversation & recall about her own personal life events I activities (instead of 4 out of 5 trials imaginary or peers), 60% of the time (Ex 1-5); - Within one year, [REDACTED] will improve her ability to answer provider observations 1 time per quarter "wh" questions (what, who, when, where), based on 4 out of 5 trials picture scenes, and storybooks with 80% accuracy. (Ex 1-8); - improve motor planning abilities by engaging in upper and lower extremity coordination exercises such as jumping jacks, yoga poses, and cross crawls to become more efficient in all areas of occupation. (Ex 1-10)

No current evaluative data, report, or input from appropriate person(s) was evidenced in assembling the IEP goals.

Witness admits not being qualified to create related service goals, noting a reliance on what “other people have put forth”. (T 41) Ultimately, there was no qualified person at the IEP meeting, and no document relied upon to draft appropriate recommendations and create appropriate goals. Instead, evidence shows the IEP was created based upon previous, and not current, IEP information.

Witness testifies as to the appropriateness of the IEP recommendations, however, at the time of the IEP meeting was not aware of the size of the Student’s current class. (T 43 & 53)

4 11/18/2019 Social History Update

At the time, Student was receiving special education services, I na kindergarten class, at the UP. (Ex 4-2)

5 11/18/2019 Psychoeducational Evaluation

Confirms Student areas of delay and need for special education services.

Recommends academic intervention. (Ex 5-5)

6 Fall 2020 [REDACTED] Student Related Service Report (received 4/14/21)

UP Report details Student services, at the time, supports and interventions, and indicates progress in areas of:

- Counseling Goals (Ex 6-1) o will respond to questions on topic and engage in meaningful conversation with teachers/ peers 60% of the time. o will follow thru on task initiation requests from instructor, 6/10 times. o will increase compliance with teacher requests to remain seated and quiet during class, 6/10 times. - Speech Therapy Goals (Ex 6-2) o will demonstrate increased receptive and expressive vocabulary skills, by a. identifying and labeling pictures and objects, as well as object function. b. sorting items according to category and naming groups of items within a given category, with 80% accuracy. o will improve her ability to answer "wh" questions (what, who, when, where), based on picture scenes, and storybooks with 80% accuracy. o will improve her ability to follow simple 1-2 step directions, with age-appropriate spatial concepts, with 80% accuracy. - Occupational Therapy Goals (Ex 6-3) o Increase visual perceptual abilities to grade level via engaging in level 3 block designs puzzles and copying patterns to help with letter recognition and writing her name. o Improve motor planning abilities by engaging in upper and lower extremity coordination exercises such as jumping jacks, yoga poses, and cross crawls to become more efficient in all areas of occupation. o Improve hand strength via yoga ball, yoga poses, putty exercise, fine motor activities to write letters using a dynamic tripod grasp.

7 undated [REDACTED] School Progress Report (1st Grade) (received 4/14/21)

Student 1st grade progress report, from the UP, includes:

- Student Math Level of Pre-Kindergarten - Struggles in Reading, Math and Language.

At Hearing, the Parent supported its position via Documentary Evidence and Oral Testimony. The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below:

[REDACTED], Parent

Student’s Parent provided Testimony which included:

- Not having the funds on hand to pay the Student’s. 22-23, UP Tuition in full (T 70-71).

A January 26, 2023 Demand Process Complaint (DPC)

Details Parent allegations of a denial of FAPE, for the 22-23 , school year, and sets forth relief demanded.

B March 29, 2022 Individualized Education Program (IEP)

Duplicate of DOE Exhibit 1.

C August 15, 2022 Letter from Parent to NYCDOE Parent provides appropriate Ten Day Notice (TDN) Letter, to the District, delivering notification of: concerns with the 22-23 IEP, and lack of receipt of a school placement; continued Student enrollment at the UP; and intent to seek District funding for said placement. (Ex C 1)

D October 24, 2022 Letter from Parent to NYCDOE Parent notifies the District that a school placement, for the 22-23 school year has been received, and that the recommended placement is not believed to be appropriate, fort the Student.

E February 27, 2023 School Progress Report [REDACTED] Elementary School Sets forth Student successful progress in areas that include: Reading, Math, Writing, Language, and Physical Needs.

F 2022-2023 General Studies Report Card Semester 1 [REDACTED] Elementary School Details Student goals in areas of:

- Decoding - English Language Arts (ELA) - Math - Science (Ex F 1) - Speech Therapy (Ex F 1-2) - Occupational Therapy (Ex F 2)

G March 2, 2023 Attendance Record [REDACTED] Elementary School Confirms Student attendance, at the UP, for the 2-23 school year.

H September 6, 2022 Tuition Contract [REDACTED] Elementary School Student Tuition set forth as $[REDACTED].00.

Parent is obligated to payment via signature upon the contract. I March 13, 2023 Tuition Affirmation [REDACTED] Elementary School Parent is evidenced to have paid $[REDACTED].00, thus far, of the Student’s contracted, 22-23 Tuition, leaving a balance of $[REDACTED].00.

J 2022-2023 Daily Schedule [REDACTED] Elementary School Student Academic and Related Service Schedule.

Schedule does include some portion of time dedicated to religious activities (Prayer).

K 2021 Family Tax Return

Family Income is set forth as $[REDACTED].00.

L April 27, 2023 Affirmation of [REDACTED]

UP Principal provides Testimony that includes:

- Witness qualifications and experience (Ex L 1-2); - General characteristics of the UP (Ex L 2); - Familiarity with the Student (Ex L 2); - At the start of the school year the Student academic skills were “largely at a pre-kindergarten/kindergarten level”; and she presented with language and communication delays (Ex L 2); - UP staff developed goals to address Student academics, boost social skills and independence, and improve her language, communication, and motor skills; - Student supports include: o Class of six similar, appropriate, students, with a teacher and assistant o Key instruction in small groups or individually o Tasks are broken down o Verbal praise and token prizes o Small class environment to promote focus and attention o Class wide behavior plan and motivation system o Frequent, but slightly delayed reinforcement (Ex L 3) - A review of the Student’s schedule, which includes about 9.5% of time devoted to no-secular activities (Ex L 3-4); - In reviewing Student schedule additional examples of Student support are outlined, including: o Literacy instruction which is multisensory o emotional support of Social Skills instruction, worksheets, modeling, and role play (Ex L 4-5) and o Math supports that include a Math Coach who meets with Student’s teacher weekly to review each student’s progress and adapt work if needed (Ex L 6); - Student receives Speech Therapy: Twice weekly for 30 minute individual sessions, and has shown progress; - Student receives Occupational Therapy; Twice weekly for 30 minute individual sessions, and has shown progress (Ex L 7) - The UP provides: individual goals for each student; monthly mainstreaming and/or reverse mainstreaming opportunities; and staff consistently communicates with Student’s Parents (Ex L 7); - Student is appropriately placed at the UP and Student has made steady progress toward instructional targets (Ex L 7-8); - Witness does not believe the IEP recommendations, made by the DOE (Ex 1), are appropriate, for the Student, noting the recommended class size is too large. (Ex L 8)

M April 26, 2023 Affirmation of [REDACTED]

Student’s Parent provides Testimony that includes:

- Participation in the Student’s IEP meeting, of 03/29/2022 (T M 1, Ex 1); - Noting concerns at the IEP meeting and afterwards via correspondence (T M 1-2, Ex C & D); - UP Tuition Contract was signed, on 05/023/2022 (Ex H), and payment made of $[REDACTED].00 (Ex M 2); - Parent’s Tax Return is provided (Ex K), reflecting family 2021 gross income of about $[REDACTED], which remained constant for 2022, and is anticipated to continue for 2023 (E M 2-3); and - Parent is responsible for the Student’s Tuition. (Ex M 3)

FINDING OF FACTS AND DECISION

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

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

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

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at ^[130]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 2022-2023 School Year The DOE failed to evidence an appropriate IEP and placement, for the Student, for the 22-23 school year.

The evidence presented by the DOE failed TO support the IEP, of 03/29/2022, as appropriate, for the Student, for the 22-23 school year. (Ex 1)

No current evaluative data, report, or input from appropriate person(s) was evidenced in assembling the IEP goals.

Witness admits not being qualified to create related service goals, noting a reliance on what “other people have put forth”. (T 41) Ultimately, there was no qualified person at

43 & 53

Related Service goals, which can be sourced, are drawn from a Fall 2020, UP Student Related Service Report. (Ex 6)

Evidence is not presented as to why those goals remain appropriate, if they ever were, for the 22-23 school year. (Ex 1)

In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental, and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations (34 CFR 300.324[a]; 8 NYCRR 200.4[d][2]). A CSE must consider independent educational evaluations whether obtained at public or private expense, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student (34 CFR 300.502[c]; 8 NYCRR 200.5[g][1][vi]).

In this case the DOE could not point to any current data used in assembling the Student’s goals. Testing was attempted, but was unsuccessful in developing useful data for the IEP team to consider. The Psychological Evaluation merely recommended academic intervention. (Ex 5)

The District has not met its burden to establish that it offered the Student a FAPE, for the 22-23 school year.

The DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 22-23 school year.

I find the DOE failed to offer the Student a FAPE for the 22-23 school year. UP Placement for the 22-23 School Year

Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 22-23 school year.

The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. I find that the documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent.

Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex E, F, G, J, L & M)

I find that the UP provides special education services specifically tailored to meet the needs of the Student.

I find UP provides an appropriate education and program for the Student for the 22-^[23] school year.

TUITION FUNDING 2022-2023 School Year

I find the Parent is entitled to Student’s UP Tuition funding, via the DOE, for the UP, 22made tuition payments but are legally obligated to do so (Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). The court held that "[w]here . . . parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769

F. Supp. 2d at 428). The Mr. and Mrs. A. Court relied in part on dicta from earlier cases in which similar claims seeking direct retroactive payment to a private non-approved school were asserted (see Connors v. Mills, 34 F. Supp. 2d 795, 805-06 [N.D.N.Y. 1998] [opining that such financial disputes should be resolved within the administrative hearing process]; see also S.W., 646 F. Supp. 2d at 358-60). The Mr. and Mrs. A. Court held that in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs (Mr. and Mrs. A., 769 F. Supp.2d at 430).

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

Parent needs to meet the burden of production and persuasion with respect to whether they have the financial resources to "front" the costs of a unilateral placement and whether they are legally obligated for the student's tuition payments (Application of the Dep't of Educ., 12-132; Application of a Student with a Disability, 12-036; Application of a Student with a Disability, 12-004; Application of the Dep't of Educ., 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041).

I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to direct DOE funding of the UP tuition, for the 22-23 school year.

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

Student Tuition set forth as $[REDACTED].00. (Ex H)

A review of the Student’s schedule, includes about 9.5% of time devoted to nosecular activities. (Ex L 3-4 & J) This results in a deduction, of District fundable Tuition, in the amount of: $[REDACTED].00.

Parent is evidenced to have paid $[REDACTED].00, thus far, of the Student’s contracted, 22-23 Tuition, leaving a balance of $[REDACTED].00. (Ex I)

TRANSPORTATION

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). In addition, State 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" (Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]).

Parent raised a potential claim relating to reimbursement for potential transportation costs incurred, in the event the DOE did not provide Student transportation. Evidence was not presented regarding this form of relief. (Ex A 5)

This claim is therefore dismissed.

ORDER

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

2. The DOE shall directly fund Student, 22-23 Tuition, at [REDACTED] Lower School (UP), in the amount of $[REDACTED].

3. The DOE shall provide Parent with any documents or forms necessary to facilitate payment under this Order, within ten days of the date of this Order.

4. This decision is subject to appeal and review by the State Review Officer.

DATED: May 8, 2023

DANIEL AJELLO

DANIEL AJELLO

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

Footnotes

[130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d the IEP meeting, and no document relied upon to draft appropriate recommendations and create appropriate goals. Instead, evidence shows the IEP was created based upon previous, and not current, IEP information. Witness testifies as to the appropriateness of the IEP recommendations, however, at the time of the IEP meeting was not aware of the size of the Student’s current class. (T

[23] school year. The DOE has denied a FAPE to the Student for the 22-23 school year. Parent provided appropriate TDN to the District. (Ex C & D) Student is evidenced to be attending the UP< for the 22-23 school year. (Ex G)_ Student Tuition set forth as $[REDACTED].00. (Ex H) Parent is obligated to payment via signature upon the contract. (Ex H) Parent is evidenced to have paid $[REDACTED].00, thus far, of the Student’s contracted, 22-23 Tuition, leaving a balance of $[REDACTED].00. (Ex I) Parent provides evidence, by way of Tax Return, and Testimony, supporting an inability to pay the UP Tuition. (T 70-71, Ex K & M 2-3) With regard to fashioning equitable relief, one court has addressed whether it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not Parent is entitled to direct funding, of Student 22-23 UP Tuition, in the amount of $[REDACTED]. There is no need for Parent reimbursement of Tuition paid, since that amount is enveloped by the non-fundable, non-secular portion, of the UP Tuition.