New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 595747 – NYC: 245443

FINDINGS OF FACT AND DECISION

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 03/13/2023

04/28/2023

Actual Record Close Date: 05/04/2023

Decision Date: 05/04/2023

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/13/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], ESQ., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 04/28/2023

(All present by video or telephone)

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], ESQ., District Representative

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

Exhibit Date Title Page(s) Entered 03/13/2023 A 01/30/2023 Impartial Hearing Request/Due Process Complaint 6 Entered 04/28/2023 B 06/17/2022 Ten Day Notice Letter 3 C 01/25/2023 D 2022 Remote Learning Information 5 E July 2022 Summer Academy Progress Report 6 F July 2022 Summer Schedule 1 G July 2022 Summer Attendance 1 H July 2022 Summer Academy Program Description 2 I 2022-2023 School Year Progress Report 24 J 2022-2023 School Year Daily Schedule 2 K 2022-2023 School Year Fall Attendance 1 L 2022-2023 School Year Program Description 7 M 05/10/2022 Enrollment Contract 3 N 10/03/2022 Affidavit of Payment 2 O 06/28/2022 Proof of Payment 2 P 2021 Tax Returns 2 Q 04/28/2023 Affidavit of Testimony for [REDACTED] 4 R 04/25/2023 Affidavit of Testimony [REDACTED] 8

DEPARTMENT OF EDUCATION (DOE)

None

IMPARTIAL HEARING OFFICER

Entered 03/13/2023

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

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.

Hearing commenced, on 03/13/2023, to allow an opportunity for the DOE to defend against the allegations contained in the DPC.

The DOE Attorney advised that the matter was still under investigation. The IHO inquired as to whether any action whatsoever was undertaken by the DOE regarding the matter, besides appearing at Hearing.

The DOE Representative advised the IHO that it was not presenting a defense to the allegations contained in the DPC.

Hearing continued, and concluded, on 04/28/2023.

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)

The DPC includes the allegations against the DOE, and basic Student characteristics, including:

- Student: “…is a [REDACTED] student who has previously been classified by the Committee on Special Education as a student with a Speech and Language Impairment. [REDACTED] presents with delays in the areas of academic skills, language, social and motor skills. She requires modifications and adult support of pacing and presentation of information and materials. Additionally, [Student] has been diagnosed with [REDACTED], as a result, she is smaller in stature and is at high risk for seizures and gait issues. Thus, [Student] requires physical support.” (Ex A 1); and - Allegation is made that the DOE created an IEP, on 03/17/2022, but did not offer the Student a placement, for the 22-23 school year (Ex A 2-3).

Parent seeks relief to address the DOE failure to offer the Student a FAPE: - Continuation of last agreed upon program at the [REDACTED] School (Unilateral Placement – UP), throughout the pendency of this litigation.; - Funding/reimbursement for unilateral placement and related services at UP for the 2022-2023 school year in the absence of an appropriate IEP and placement recommendation; and - Declaratory finding that the district failed to offer Student a FAPE. (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

The DOE did not defend any offer of a Free Appropriate Public Education (FAPE), for the Student, for the 22-23 school year. (T 22)

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

A 01/30/2023 Impartial Hearing Request/Due Process Complaint

Details Parent’s allegations and sought after relief.

B 06/17/2022 Ten Day Notice Letter

Notifies the DOE of: alleged failure to offer the Student a placement for the 22-23 school year; intent to continue Student placement at the UP; and intent to seek DOE funding for said Student placement. C 01/25/2023 Findings of Fact and Decision

Decision awarding the Parent DOE funding for Student 21-22 School Year Tuition, at the UP.

D 2022 Remote Learning Information

UP Remote Learning Plan is detailed.

E July 2022 Summer Academy Progress Report

Student Goals and progress are noted for areas that include:

- Literacy and Thematic Work (Ex E 1) - Mathematics and Problem Solving (Ex E 1-2) - Related Services of Speech, Occupational Therapy, Physical Therapy and Counseling (Ex E 3-6)

Student supports are outlined, including for Math: Student “was also able to meet the mathematical goals this summer through a variety of activities and tasks. These included money practice, online games, a differentiated math lab day to target computation practice, and problem-solving activities. She benefited from applying various strategies, such as utilizing manipulatives and drawing. [Student] also needs scaffolded worksheets, repetition, and small group or one-to-one instruction during math class.” (Ex E 2)

F July 2022 Summer Schedule

Student Academic and Related Service Schedule.

G July 2022 Summer Attendance

Evidence of Student Attendance at the UP Summer program.

H July 2022 Summer Academy Program Description

Details general characteristics o the UP Summer Program, including:

- is designed to reinforce academic and social skills developed in classrooms during the school year. Students participate in a small group, multi-sensory, thematic based learning environment with integrated related services including speech and language therapy, counseling, physical therapy, and occupational therapy. Students are grouped based on differentiated learning profiles and are assessed continuously throughout the six week program; - Academic Instruction - Related Services - Community Inclusion Opportunities (Ex H 1) - Vocational and Travel Training and Community Service opportunities

I 2022-2023 School Year Progress Report [REDACTED], Student Progress Report, includes detailed goals, supports and progress in areas of:

- Reading (Ex I 2-3) - Writing (Ex I 2) - Social Studies (Ex I 5-6) - Math (Ex I 7-8) - Science (Ex I 9-10) - Speech Language Therapy (Ex I 11-12) - Social Emotional Development (Ex I 13-14) - Occupational Therapy (Ex I 15-16) - Physical Therapy (Ex I 17-18)

J 2022-2023 School Year Daily Schedule

Student Daily Schedule

K 2022-2023 School Year Fall Attendance

Student Attendance, at the UP.

L 2022-2023 School Year Program Description

Details general characteristics, of the UP, including

- Serving the needs of special needs students (Ex L 1); - Curriculum includes Academic Skills; Critical Thinking and Problem Solving; Social Skills; Emotional Health; Physical and Emotional Movement; The Arts; and Technology (Ex L 2); - Student Curriculum for English Language Arts; Math; Social Studies; Science and Technology (Ex L 3-4); - Instructional Strategies(Ex L 6); - Staff (Ex L 7); and - Facilities (Ex L 7).

M 05/10/2022 Enrollment Contract

Tuition, including 1st Summer Session, is evidenced to be $[REDACTED]. (Ex M 1)

Parent is obligated to payment via electronic signature. (Ex M 3)

N 10/03/2022 Affidavit of Payment

Payment has been made of $[REDACTED], leaving a balance of $[REDACTED].

O 06/28/2022 Proof of Payment

Proof of payment from Parent for the $[REDACTED] Tuition payment, to the UP.

P 2021 Tax Returns

Parent provides evidence of income in the amount of $[REDACTED], for the 2021 calendar year.

Q 04/28/2023 Affidavit of Testimony for [REDACTED]

Student’s mother provides Testimony that includes; - Student educational history (Ex Q 1-2); - Student attendance at the UP, since Kindergarten (Ex Q 2); - An IEP meeting took place, on 03/17/2022, which made recommendations to which the Parent disagreed (Ex Q 2-3); - Parent did not receive a placement offer, from the DOE, for the 22-23 school year (Ex Q 3); - Student “is attending [UP] for the 2022-2023 school year. I chose [UP] because I felt it was most appropriate to meet her educational and therapeutic needs. She has made progress in this program. [Student] was able to understand and appreciate various types of texts. She was really engaging with the material. [UP] provides [Student] with consistent physical therapy, occupational therapy, and counseling services, both in class and in dedicated sessions, that addresses [Student’s] specific challenges that are related to her [REDACTED]. This intense therapeutic support has helped [Student] reach her educational potential.” (Ex Q 3)

- Parent signed a contract wit the UP (Ex M), and has paid $[REDACTED] (Ex Q

3); - Parent provides accurate details of income for 2021 (Ex Q 3); and - “It would be a financial hardship for my family to pay the [UP] tuition cost upfront. If we prevail at this hearing, I am asking the hearing officer to order the district to reimburse the tuition that we have paid and issue the balance of the tuition directly to [UP].” (Ex Q 3-4)

R 04/25/2023 Affidavit of Testimony [REDACTED]

UP Head of School provides Testimony that includes:

- Witness qualifications (Ex R 1); - General characteristics, of the UP, including: o independent school for students with a broad range of developmental disabilities including Autism, ages 5 through 21; o students have a variety of DOE disability classifications and often have language-based learning disabilities, academic deficits, and/or deficits in adaptive daily living skills; o vast majority of our students are “alternatively assessed,” and require individualized curriculum and individual learning goals; o progress is not measured based on advancement from grade level to grade level, but rather they are assessed based on their progress with their individual learning goals; o head teacher and the assistant teacher are responsible for planning of the curriculum, which includes the year-long plan as well as the daily lessons and activities; o head teacher and assistant teacher conduct observations, develop individual student goals, coordinate assessments, and plan and deliver the instruction; o teachers work with students in small groups, which rotate in a center-based model; o paraprofessionals provide individualized support as needed; and o UP provides small classes with low student-to-teacher ratios. (Ex R 2)

- Student classroom for the 2022-2023 school year consists of 12 students, one teacher, one assistant teacher, and three 1:1 paraprofessionals; - class was frequently broken down into smaller groups and offers the support of Speech Language therapist and Occupational therapist assigned to the students; - Speech Language therapist and Occupational therapist provide individual sessions to the students in their respective offices, as well as group sessions in the classroom; - when the Speech Language therapist and Occupational therapist are not providing individual and group therapy sessions, they are often in the classroom assisting with instruction and learning activities; - Each morning during the 2022-2023 school year, the classroom team meets for a few minutes before the start of the day to discuss responsibilities with the instruction, progress monitoring, and the student groups for that day (Ex R 2)

- Staff qualifications and certifications (Ex R 3); - Related Services offered by the UP (Ex R 3-4); - Advisory Period description: “staffed by a counselor, a speech therapist, and a teacher. Together they support executive functioning, prepare for the day, discuss any changes to the schedule that might be unusual, and work with very small targeted social skill groups on language skills, peer communication, identifying appropriate peers, and making plans with them for after school or the weekend.

The advisory staff respond to the individual social needs of the students in their cohort.” (Ex R 5); - Information regarding UP student assessments, and progress reports (Ex R 6); - Familiarity with the Student; - Student “benefits from small group instruction and frequent check-ins to ensure she understands the task at hand. Over the course of the year, [Student] has become a student leader, and models appropriate classroom behaviors, such as sitting quietly, raising hands, and independently going to the bathroom.” (Ex R 6); - Student progress is noted in Reading, Writing, and Math (Ex R 6-7); - Student receives:

o speech and language therapy in small group sessions twice weekly for 35 minutes; o Daily Living Skills, a class co-taught by the speech therapist and the occupational therapist; o counseling services at [UP] once weekly individually, once weekly in a small group, and weekly in a large group “Mindfulness Moments” class; o occupational therapy services to address fine motor skills, functional writing, and sensory processing and regulation, is provided once weekly in a group of three, and once weekly in a group of two; and o physical therapy twice per week for 35 minutes (once individually and once in a group of two) (Ex R 7); - “Based on my professional opinion, experience, and interactions with [Student], I believe [UP] is an appropriate placement for her for the 12-month 2022-2023 school year. [UP’s] program provides [Student] with the individualized instruction she requires, including a small student to teacher ratio in a positive classroom environment, in addition to weekly counseling, speech, physical therapy, and occupational therapy sessions tailored to meet her needs. The program provides {Student] with significant support in her academics, language and other related services and increases her social and life skills so that she is a more independent student.” (Ex R 7-8)

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 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 2022-23 School Year The DOE opted to present no defense to the Parent’s allegations.

The district has presented no witnesses in this matter.

The district submitted neither an IEP, nor offer pf placement, for the 22-23 school year.

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

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 D, E, F, G, H, I, J, K, L, Q & R)

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, 22costs 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 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 DOE funding, of the Student’s 22-23, UP Tuition, 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 fund Student’s 2022-2023 Tuition, for attendance at Cooke Center Grammar School (Unilateral Placement – UP), up to the amount of $[REDACTED], as detailed below:

o Reimbursement to Parent of $[REDACTED]; and o Direct funding from the DOE to Coke Center Grammar School, 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 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

[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,

[23] school year. The DOE has denied a FAPE to the Student for the 22-23 school year. Parent provides appropriate Ten Day Notice to the District. (Ex B) Tuition, including 1st Summer Session, is evidenced to be $92,287.50. (Ex M 1) Parent is obligated to payment via electronic signature. (Ex M 3) Payment has been made of $[REDACTED], leaving a balance of $[REDACTED]. (Ex N) Proof of payment from Parent for the $[REDACTED] Tuition payment, to the UP. (Ex O) Parent provides evidence of income in the amount of $[REDACTED], for the 2021 calendar year. (Ex P) Parent provides uncontested Testimony that “It would be a financial hardship for my family to pay the [UP] tuition cost upfront. If we prevail at this hearing, I am asking the hearing officer to order the district to reimburse the tuition that we have paid and issue the balance of the tuition directly to [UP].” (Ex Q 3-4) 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