New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 595719 – NYC: 245419

FINDINGS OF FACT AND DECISION

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 03/07/2023

04/07/2023

04/24/2023

Actual Record Close Date: 05/03/2023

Decision Date: 05/04/2023

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/07/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 04/07/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 04/24/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], ESQ., Attorney

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

EX DATE DOCUMENT TITLE PAGE(S) Entered 03/07/2023 A 1/30/23 Due Process Complaint (DPC) 5 Entered 04/07/2023 B 8/23/22 Ten-Day Notice (TDN) 4 C 9/9/22 Tuition & Related Service Contracts 5 D 3/27/23 Affidavit of Tuition Costs 1 E 2020 Tax Return 2 F 2022-2023 Class Schedule 2 G Fall 2022 Report Card 2 H 1/2023 Counseling Report 2 I 1/2023 Teacher Report 2 J 1/2023 Occupational Therapy (OT) Report 2 K 1/2023 Speech-Language (SL) Report 3 L 11/2022 [REDACTED] [REDACTED] Individual Education Plan 10 Entered 04/24/2023 M 4/17/2023 Affidavit of [REDACTED] 7 N 4/17/2023 Affidavit of [REDACTED] 3

DEPARTMENT OF EDUCATION (DOE)

Entered 04/07/2023 Ex Description Date Page(s) 1 Psychoeducational Evaluation 12/09/2021 2 2 Teacher Progress Report 01/04/2022 8 3 SLT Progress Report 12/2021 2 4 Counseling Progress Report 12/2021 1 5 Individualized Education Program (IEP) 01/05/2022 22 6 Prior Written Notice 07/14/2022 6

IMPARTIAL HEARING OFFICER

Entered 03/07/2023 I Notice of appointment, 1/30/23, four pages

II Order of consolidation, 1/31/23, three pages

III Notice of appearance from [REDACTED], 2/3/23, one page

IV Pendency implementation form, 2/17/23, two pages

INTRODUCTION

On 01/30/2023, 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.

Hearing commenced, on 03/07/2023, to allow an opportunity for the DOE to defend against the allegations contained in the DPC.

Hearing continued, on 04/07/2023, and concluded, on 04/24/2023., 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)

Allegations include:

- Student is known, to the DOE, as having a disability; - Parent objects to the IEP, of 01/05/2022 (Ex 5), citing insufficiencies related to: procedural errors which inhibited the Parent’s rights (Ex A 1); a failure to properly consider appropriate evaluations; and a failure to include appropriate goals (Ex A 2); and - “After the IEP meeting, the parent received a school placement recommendation…the same school placement that has been issued for [Student] for several years and which has not been appropriate. The parent reached out to the school on multiple occasions to determine if this setting would be appropriate for [Student]. However, the school would not provide the parent with information without registering her son. While the school’s parent coordinator initially stated that she could answer basic questions from the parent, when asked about the number of students in the class and additional information, the parent coordinator said she could not answer those questions with certainty and the parent would need to register. The parent was told that the class did not break into smaller groups for any subjects. When the parent attempted to learn about the class schedule, support for non-academic subjects, and information on the program curriculum, she was again told to register her son for information.” (Ex A 3) Parent seeks relief that includes: Direct/prospective funding for [REDACTED] [REDACTED] – Unilateral Placement (UP) tuition and related services; or, in the alternative, tuition and related services reimbursement. (Ex A 3)

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

On the first day of Hearing the DOE Representative, advised the IHO, that she believed the case had been closed out. In fact, the prior year case was closed out (Case 241114)

The IHO, considering the confusion caused by the two cases related to the Student, set another opportunity was given to the DOE, to defend against the allegations contained in the DPC, and Hearing continued, on 04/07/2023.

At Hearing the DOE sought adjournment advising the IHO that the Hearing date was a religious holiday. (T 21-22)

The IHO denied the adjournment, noting that any such adjournment request related to a religious holiday would need to be supported by information as to why the holiday prohibited a particular witness from testifying. (T 21-24)

Hearing continued, and concluded, on 04/24/2023.

At Hearing, the Parent supported its position via Documentary Evidence and Testimony. Parent’s evidence is uncontroverted.

The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below: A 1/30/23 Due Process Complaint (DPC)

Details Parent’s allegations and sought after relief.

B 8/23/22 Ten-Day Notice (TDN)

Parent provides notice to the District of:

- Receipt of the IEP from the January 5, 2022 (Ex 5); - Objection to the DOE continuing its recommendation of a 12:1:1 class for the Student, despite the concerns presented by Student’s teacher and Parent; - Receipt of a Public School placement that will be considered; - Parent notes the school placement is the same placement made in the past, and therefore Parent has concerns that it is not appropriate; - Parent cannot accept the recommendations at this time; - Student will start at the UP, and - Parent will seek funding for the UP placement. (Ex B 1)

C 9/9/22 Tuition & Related Service Contracts

Tuition set forth as $[REDACTED].00. (Ex C 2)

Parent obligates himself to payment of the contracted Tuition, via signature. (Ex C 2 & 3)

Related Services cost to be provided, by the UP, as indicated in the contract:

Occupational Therapy: twice weekly for thirty minute sessions -

$[REDACTED]

Speech Language Therapy: twice weekly for thirty minute sessions -

$[REDACTED]

Counseling: twice weekly for thirty minute sessions -

$[REDACTED]

Total Cost:

$[REDACTED]

D 3/27/23 Affidavit of Tuition Costs

Total 22-23 Student Tuition cost is $[REDACTED].

Balance due remains $[REDACTED].

E 2020 Tax Return

Parent income, for the 2020 calendar year is set forth as: $[REDACTED].

F 2022-2023 Class Schedule

Student Academic and Related Therapy schedule.

Schedule does include time devoted to religious activities.

G Fall 2022 Report Card

Student Report Card includes satisfactory grades for his classes.

Notes that the Student is greatly benefitting from the small classroom setting. (Ex G 2)

H 1/2023 Counseling Report

Sets forth present levels of functioning, progress, and continues recommendation for services with goals. (Ex H 1-2)

I 1/2023 Teacher Report

Sets forte areas of challenge, and goals, in areas of: English Reading, English Writing and Math.

J 1/2023 Occupational Therapy (OT) Report

Sets forth present levels of functioning, progress, and continues recommendation for services with goals. (Ex J 1-2)

K 1/2023 Speech-Language (SL) Report

Sets forth present levels of functioning, progress, and continues recommendation for services with goals. (Ex K 1-3)

L 11/2022 [REDACTED] [REDACTED] Individual Education Plan

UP IEP details goals and objectives in areas of - LANGUAGE ARTS: ENGLISH READING (Ex L 2); - LANGUAGE ARTS: ENGLISH PHONICS (Ex L 2-3); - LANGUAGE ARTS: ENGLISH COMPREHENSION (Ex L 3-4); - LANGUAGE ARTS: ENGLISH WRITING (Ex L 4-5); - LANGUAGE ARTS: ENGLISH HANDWRITING (Ex L 5); - MATH (Ex L 5-6); - SCIENCE (Ex L 6); - SOCIAL STUDIES (Ex L 7); - LANGUAGE ARTS: [REDACTED] READING (Ex L 7);

- LANGUAGE ARTS: [REDACTED] SPEAKING (Ex L 7-8); and

- LANGUAGE ARTS: [REDACTED] GRAMMAR (Ex L 8).

UP IEP details goals for related services of:

- OCCUPATIONAL THERAPY (Ex L 9);

- SPEECH AND LANGUAGE (Ex L 10); and

- SOCIAL AND EMOTIONAL (Ex L 10).

M 4/17/2023 Affidavit of [REDACTED]

UP Principal provides Testimony that includes:

- Her qualifications, and role at the UP (Ex N 1); - General characteristics, of the UP, such as staff professional development, and supervision of staff by executive directors (Ex M 1-2); Class size of 6 to 10 students; and available related services (Ex M 2); - Familiarity with the Student, who attends a UP 4th grade class; - Student class has 6 students, a teacher, an assistant and a rotator (another assistant teacher) for reading; - Student was assessed at the beginning of the 22-23 school year, in reading, writing and math; - A curriculum, and supports, were prepared for the Student; - Specific goals were created to address Student needs, to address identified areas of skill deficit (Ex M 2); - Student difficulties include: thinking critically and applying new knowledge and skills in the language domain; making inferences; using text evidence; acquiring new vocabulary; correct spelling; grammar; punctuation; expressing ideas through written communication; math fluency; executive functioning skills; and a slow rate of learning (Ex M 2-3); - Details regarding addressing Student challenges, such as: small class; extra support to keep Student engaged and focused; consistent teacher support and prompting; modified pacing; support in interactions with peers; schedule and curriculum are tailored to Student’s needs; a multi-sensory approach; and trained special education support for all periods of the day, including lunch and specials (Ex M 3); - Details of Student supports for Reading, with noted progress (Ex M 3-4); - Details of Student supports for Math, with noted progress (Ex M 4-5); - Details of Student supports for Writing, with noted progress (Ex M 4); - Details of Student supports for Speech Language, with noted progress (Ex M 5-6); - Details of Student supports for Occupational Therapy, with noted progress (Ex M 6); and - Details of Student supports for regulating emotions, with Counseling, with noted progress (Ex M 4); - Student schedule includes about 14% of time devoted to religious instruction (Ex M 6); - [REDACTED] Reading is not a Religious Course (Ex M 6); - UP is an appropriate setting , for the Student, providing special education support throughout the day, in a small setting, with small learning groups for reading and math; and - Student has made progress in all areas. (Ex M 7)

N 4/17/2023 Affidavit of [REDACTED]

Student’s Parent provides Testimony that includes:

- Student has been identified as one with a disability since preschool, entering [REDACTED], with an IEP; - Parent raised concerns at the 01/05/202 IEP meeting (Ex 5); - Parent received a school placement, and raised concerns, through attorney via letter (Ex B), which has not received a response (Ex N 1); - Reaching out to the proposed placement on multiple occasions to obtain information, and was told the Student had to be registered in order to obtain information (Ex N 1-2); - Student remained at the UP, which is appropriate, for the Student; - Student receives instruction in smaller groups, related services, and constant attention, at the UP; - Student is making progress, at the UP; - Father signed UP Tuition Contract (Ex C), and Parents remain liable for payment of the Contract (Ex N 2); - Payment of the UP Tuition would be a financial hardship for the family (Ex N 2); - District funding is sought for the secular portion of the Student’s, 22-23, UP Tuition, including Related Services. (Ex N 3)

1 Psychoeducational Evaluation 12/09/2021

Confirms Student need for special education services, noting Student delays in Reading, Writing and Comprehension. Student also has anxiety-based avoidance behavior. (Ex 1-3)

2 Teacher Progress Report 01/04/2022

Details Student goals and Management needs, including a Behavior Plan. (Ex 2-1 through 2-6)

3 SLT Progress Report 12/2021

Confirms Student need for Speech Language Therapy.

4 Counseling Progress Report 12/2021

Confirms Student need for Counseling services.

5 Individualized Education Program (IEP) 01/05/2022

Confirms Student entitlement to special education services.

IEP includes:

- Classification of Learning Disability (Ex 5-1); - Lacks the Behavior Plan identified as a need in the Teacher Progress Report (Ex 2-6); - Recommends a Special Class 12:1+1, for Math and ELA, with Related Services of Counseling, Occupational Therapy and Speech Language Therapy (Ex 5-15); and - Sets Student Instructional and Functional Levels at [REDACTED] Grade for Reading and Math (Ex 5-20).

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 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 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 did not avail itself of the opportunities to present a defense to the allegations contained in the DOC. (Ex A)

The district has presented no witnesses in this matter. Although the district submitted various documents including an IEP, it is well established that an IEP does not on its own, without testimony to explain its appropriateness, establish that a FAPE has been provided. See e.g. R.E. v. N.Y.C. Dep’t of Educ., 694 F. 3d 167, 185-186 (2d Cir. 2012); L.O. v. N.Y.C. Dep’t of Educ., 822 F2d 95,111 (2d Cir. 2016)

The DOE has not evidenced development of an appropriate IEP for the commencement of 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 1, 2, 3, 4, 5, F, G, H, I, J, K, L, M & N)

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, 22Occupational Therapy: twice weekly for thirty minute sessions -

$[REDACTED].00

Speech Language Therapy: twice weekly for thirty minute sessions -

$[REDACTED].00

Counseling: twice weekly for thirty minute sessions -

$[REDACTED].00

Total Cost: $[REDACTED] (Ex C 5)

Witness, from the UP, acknowledges that the Student schedule includes about 14% of time devoted to religious instruction. (Ex M 6)

Parent does not seek District funding for non-secular activities. (Ex N 3)

Fundable portion of Student’s 22-23 UP Tuition is calculated below:

Tuition of: $[REDACTED].00 (Less [REDACTED]% - $[REDACTED]) =

$[REDACTED].00

Plus Related Services of: $[REDACTED].00

Total Fundable Portion: $[REDACTED].00

Parent testimony is uncontested that payment of the UP Tuition would be a financial hardship for the family. (Ex N 2)

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 made 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 appropriate DOE alternative.

Parent provides information relative to their financial capability. (Ex X E); and Testifies as to financial hardship if payment was to be made by family directly. (Ex N 2)

I find Parent meets 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 Ordered below.

ORDER

1. The Department of Education (DOE) failed to offer the Student a FAPE for the 2022-2023 school year.

2. The DOE shall directly fund Student, 22-23 Tuition, for attendance at [REDACTED] [REDACTED] – Unilateral Placement (UP), up to 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 4, 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

[23] school year. The DOE has denied a FAPE to the Student for the 22-23 school year. Parent provided an appropriate TDN to the District. (Ex B) Tuition set forth as $[REDACTED].00. (Ex C 2) Parent obligates himself to payment of the contracted Tuition, via signature. (Ex C 2 & 3) Related Services cost to be provided, by the UP, as indicated in the contract: