New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 593798– NYC: 244058

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED (“Student”)

Date of Birth: REDACTED

School District: REDACTED

Hearing Requested by: REDACTED (“Parents”)

Date of Filing: December 20, 2022

Dates of Hearing: April 20, 2023

May 18, 2023

June 9, 2023

Record Close Date: June 28, 2023

Date of Decision: July 3, 2023

Impartial Hearing Officer: Robin Levin, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 20, 2023

For the Student:

REDACTED (“Parents’ Attorney”)

REDACTED (“Student’s Mother”)

REDACTED (“Student’s Father”)

For the Department of Education:

REDACTED (“DOE Representative”)

REDACTED (“REDACTED Education Administrator”)

REDACTED (“Director of Admissions at the State-Approved Residential Placement”)

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 18, 2023

For the Student:

REDACTED (“Parents’ Attorney”)

REDACTED (“Student’s Mother”)

REDACTED (“Student’s Father”)

REDACTED (“Assistant Head of the Residential Private School”)

For the Department of Education:

REDACTED (“DOE Representative”)

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 9, 2023

For the Student:

REDACTED (“Parents’ Attorney”)

REDACTED (“Student’s Mother”)

REDACTED Student’s Father”)

REDACTED (“Neuropsychologist”)

For the Department of Education:

REDACTED (“DOE Representative”)

INTRODUCTION

This is a decision rendered after a due process hearing (“DPH” or “hearing”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, Educ. Law Article 89 §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq.^[1] This case concerns Student, a REDACTED -year-old, who is classified by the New York City Department of Education (“DOE” or “District”) as a student with a disability, Other Health Impairment.^[2] The Parents unilaterally placed the Student in a residential private school (“Residential Private School”) for the 2022-2023 school year. ^[3]

On December 20, 2022, the Parents, through counsel, filed a Due Process Complaint (“DPC”) against the DOE.^[4] In the DPC, the Parents allege that the DOE failed to offer the Student a Free Appropriate Public Education (“FAPE”) for the 2022-2023 school year.^[5] The Parents allege that the DOE failed to implement the Student’s Individualized Education Program (“IEP”) dated April 29, 2022.^[6] The Parents contend that the Residential Private School is an appropriate placement for the Student because it “provides instruction, support, methodologies, supervision, and services specifically designed to meet [the Student’s] unique needs in order to make meaningful progress.” ^[7]

By way of relief, the Parents seek an award of tuition reimbursement for the Student’s attendance at the Residential Private School for the 2022-2023 school year.^[8] The Parents allege that the equities support their claim for tuition reimbursement for the school year at issue since the Parents have fully cooperated with the Committee on Special Education (“CSE”) and properly gave the CSE written notice of their intent to unilaterally enroll the Student at the Residential Private School. ^[9]

As discussed below, I find that the DOE denied the Student a FAPE for the 2022-2023 school year by failing to locate an appropriate placement that could implement the Student’s IEP as written. I find that the Residential Private School is appropriate and offers the Student specially designed instruction sufficient to meet the Student’s needs. In addition, I find that the equities support the Parents’ request for tuition reimbursement for the 2022-2023 school year.

PROCEDURAL HISTORY

On January 30, 2023, I was appointed as the Impartial Hearing Officer (“IHO”). On February 13, 2023, the parties appeared virtually for a pre-hearing conference (“PHC”). At the PHC, the DOE Attorney requested additional time to determine whether the case can be referred for settlement. 10 The Parents’ Attorney consented, and the parties jointly requested a 30-day extension, which was granted.^[11] On February 28, 2023, DOE Representative filed a Notice of Appearance (“NOA”) in this matter.^[12] A continued PHC was held on March ^[10], 2023.^[13] At that time, the DOE Representative indicated that she was newly assigned to the case and needed additional time to investigate.^[14] The parties jointly requested a 30-day extension, which was granted, and the first DPH date was scheduled for April 20, 2023.^[15] A status conference was also scheduled for April 7, 2023 for the DOE Representative to provide an update on whether the case is recommended for settlement.^[16] At the status conference, the DOE Representative indicated her investigation was completed and the case was not recommended for settlement. 17 Thereafter, a second DPH date was scheduled for May 18, 2023. 18

A virtual DPH was held on April 20, 2023, May 18, 2023, and June 9, 2023. It was a closed hearing. On April 20, 2023, the Student’s Parents were present and represented by Parents’ Attorney. The DOE Representative was also present. The DOE Representative entered^[17] exhibits into evidence without objection, including affidavit testimony of two witnesses, the Central Based Support Team (“REDACTED”) Education Administrator and the Director of Admissions at the State-Approved Residential Placement.^[19] The Parents entered 18 exhibits into evidence without objection.^[20] The REDACTED Education Administrator and the Director of the Admissions at the State-Approved Residential Placement testified live for cross-examination. ^[21]

On May ^[18], 2023, the DPH continued.^[22] The Student’s Parents were present and represented by Parents’ Attorney. The DOE Representative was also present. The Parents commenced their case-in-chief. The Parents entered 8 additional exhibits into evidence without objection, including affidavit testimony from the Assistant Head of the Residential Private School.^[23] The Assistant Head of the Residential Private School testified live for cross-examination.^[24] Next, the Parents’ Attorney called the Student’s mother (“Parent 1”) to testify live.^[25] The DOE Representative cross-examined Parent 1.^[26] The Parents’ last witness, the neuropsychologist, submitted affidavit testimony which Parents’ Attorney sought to enter into evidence as Exhibit Z. However, the neuropsychologist was not available during the time allotted on May 18, so the hearing was continued to June 9, 2023.^[27] I granted a joint request to extend the compliance date due to witness availability. 28

On June 9, 2023, the DPH continued. The Student’s Parents were present and represented by Parents’ Attorney. The DOE Representative was also present. Parents case-in-chief continued, and the Parents’ Attorney entered Exhibit Z, the affidavit of the neuropsychologist into evidence without objection. 29 The Parents’ Attorney had additional direct examination questions for the neuropsychologist, so the neuropsychologist testified live for both direct and cross-examination.^[30] The Parents rested, and the record was closed on June ^[28], 2023, upon receipt of the parties’ closing briefs. ^[31]

The DOE took the position that the DOE provided the Student a FAPE for the 2022-2023 school year by properly creating the Student’s April ^[29], 2022 IEP and locating a residential placement to implement the IEP. In addition, the DOE asserts that the Parents failed to meet their burden in showing the appropriateness of the unilateral placement at the Residential Private School, and that equitable considerations should bar tuition reimbursement because the Parents rejected residential placements located by the REDACTED, which prevented the DOE from implementing the Student’s IEP and providing the Student with a state-approved residential placement. ^[32]

The Parents took the position that the DOE denied the Student a FAPE for the 2022-2023 school year when it failed to provide a residential placement that could implement the Student’s IEP as written and as intended, and adequately address his special education needs. The Parents allege that the DOE failed to hold a securement meeting with a representative from the school before the school year commenced. The Parents argue that the residential placements located by the REDACTED were inappropriate for the Student. In addition, the Parents’ assert that the unilateral placement was appropriate for the Student, and that the equities support an award of tuition reimbursement for the Residential Private School. ^[33]

FINDINGS OF FACT

After a full review of the record, I make the following findings of fact and determinations.

I find all exhibits admitted into the record to be relevant and representative of the facts for which they were offered. As for the witnesses, I find no reason to doubt the veracity of their testimonies and therefore, I find all the witnesses generally credible and make note of the instances where the evidence contradicts certain testimony. I base the following on the record generated at the hearing.

The Student is currently fifteen years old and was in the tenth grade at the Residential Private School for the 2022-2023 school year.^[34] He is a charismatic, active, intellectually curious, people-person who loves sports, history, and current events.^[35] In addition, the Student is “a positive, thoughtful, joyful, and resilient young man with a vibrant, energetic personality and a good sense of humor.”^[36] He likes to connect with people and makes friends wherever he goes. ^[37]

The Student has been identified as a Student with a Disability by the DOE’s CSE and given the classification of Other Health Impairment.^[38] The Student was first diagnosed with Attention-Deficit/Hyperactivity Disorder (“ADHD”) in 2014 when his Parents noticed he had “a lot of issues with attention and focus.”^[39] In addition, the Student has “a longstanding history of executive functioning weaknesses.” ^[40]

Student’s Educational History

The Student’s disabilities impact him in school. The Parents first noticed the Student was struggling in preschool.^[41] He had speech and language delays and began receiving speech therapy services.^[42] The Student attended a public school (“Public School 1”) for kindergarten where he was in an Integrated Co-Teaching (“ICT”) classroom setting per his IEP at that time.^[43] The Student remained at Public School 1 until the end of second grade and during this time, he “required a lot of close supervision” and small group instruction in order to get him to pay attention.^[44] Public School 1 was a large school that was overstimulating for the Student.^[45] The Student transitioned to a smaller public school (“Public School 2”) for third grade and the transition went well.^[46] However, the Parents “started to see more of his academic…struggles really rise to the surface.”^[47] The Student was struggling in math, struggling to pay attention and work independently, and struggling expressing himself and narrating. ^[48]

From third to fifth grade, the Student did have an IEP, but the support provided at Public School 2 was not enough, so the Parents hired a tutor (“Learning Specialist Tutor”) who was a learning specialist who specialized in students with ADHD and executive functioning deficits.^[49] The Student continued to exhibit attention-seeking behaviors and was often described as the class clown, sometimes being disruptive in class. ^[50]

The Student continued working with the Learning Specialist Tutor and attended a public middle school (“Public School 3”) from sixth to eighth grade.^[51] Public School 3 “had [a] behavioral points system that [the Parents] thought would be great… that it would [help the Student] respond to clear boundaries and clear feedback” and motivate the Student to improve his behavior.^[52] The Student responded poorly to the behavioral points system as he would consistently lose points each day and feel like he could not succeed.^[53] This was frustrating for the Student and throughout middle school, the Student continued to exhibit executive functioning issues and “had trouble connecting to the material” he was learning.^[54] The Student would be removed from class for distracting his classmates and the Parents began “to see more negative behaviors come from him” by the end of eighth grade.^[55] He was also struggling academically as he was still on a sixth grade level in math.^[56] In March of 2020, the Student began seeing a therapist (“Therapist”) for weekly individual Cognitive Behavioral therapy sessions. ^[57]

For ninth grade, the Student began high school at a public high school (“Public School 4”) where he continued in an ICT classroom setting.^[58] The Student could not keep up academically, had trouble focusing in class, and his teachers told the Parents that the Student was really disengaged.^[59] He was failing math, had difficulty transitioning from class to class, and was suspended twice due to physical altercations.^[60] The Student’s transcript from Public School 4 shows that he earned 11.5 high school credits and received an average mark of 76, a failing grade in Earth Science Lab and a 65 in Algebra. ^[61]

The Neuropsychological Evaluation

On March 15 and March 16, 2022, the Student underwent a neuropsychological evaluation.^[62] The evaluation also included a classroom observation which occurred on March 11, 2022.^[63] The final report was completed and provided to the Parents on April 6, 2022.^[64] The neuropsychological evaluation report indicates that the Student’s overall achievement falls within the average range.^[65] The Student’s “vulnerabilities with attention and executive functioning continue to be evident and present as areas of significant weakness and concern across settings.” ^[66] Moreover, “in addition to significant working memory and processing speed deficits as seen from his performances on the WISC-V, [the Student] also struggled on tasks that tapped planning and organization,” visual-motor shifting, rapid naming, and sustained attention.^[67] The Student also showed “[s]ignificant concerns regarding behavioral (i.e., inhibition), emotional (i.e., shifting), and cognitive (i.e., self-initiation, working memory, planning and organization, task-monitoring) regulation skills.”^[68] The neuropsychological evaluation report explains that the Student’s weakness are negatively impacting his academic and interpersonal functioning abilities without the appropriate support and remediation.^[69] In addition, the Student’s “math skills presented as an area of significant weakness within his academic profile, falling within the lowest limit of the Low Average range on the WIAT-IV, which marks a pattern of weakness seen across evaluations.” ^[70]

The Student was then diagnosed with ADHD, Combined presentation (Moderate to Severe severity) and Specific Learning Disorder With Impairment in Mathematics (Moderate severity) as a result of the neuropsychological evaluation.^[71] The neuropsychologist recommended placement “in a small, nurturing, and highly specialized residential school that can… address both his learning and executive functioning needs,” and has teachers that are experienced in teaching students with ADHD.^[72] The neuropsychologist further explained that the peers in the school located for the Student must be similar to the Student in that they have “good cognitive and social potential and do not display aggressive or significant externalizing difficulties”^[73] The neuropsychologist stressed the importance of locating the placement “expeditiously in order to manage [the Student’s] complex academic, social-emotional and behavioral needs.” ^[74]

The IEP Meeting and Deferral to REDACTED

On April 29, 2022, the DOE convened a meeting of the CSE to develop an IEP for the Student for the 2022-2023 school year.^[75] In anticipation for the IEP meeting, the Parents provided the CSE with the Student’s neuropsychological evaluation report, a letter from the Therapist, and a letter from the Learning Specialist Tutor.^[76] In addition, the DOE conducted a classroom observation, completed an educational evaluation report, and a social history evaluation.^[77] The April 29, 2022 IEP recommended a 12:1:1 special class in a residential non-public school on a 12-month basis with both group and individual counseling weekly.^[78] The IEP states that the Student “tends to follow others impulsively, engages in risk-taking behavior, and reacts emotionally, with little understanding of negative consequences,” so it is important for the Student to be “placed in a class with students on his intellectual level who do not have serious behavioral problems.”^[79] The IEP was to be implemented immediately. ^[80]

Three weeks later, on May 20, 2022, the REDACTED accepted the referral for the Student to be placed in a state-approved non-public residential school, and the Student was assigned to REDACTED Education Administrator.^[81] The REDACTED Education Administrator reviewed all of the materials related to the Student and sent his file to eight potential state-approved residential placements.^[82] The REDACTED Education Administrator communicated with the Parents via email and documented their communication in the SESIS log.^[83] According to the REDACTED Education Administrator, 7 New York State-approved residential placements expressed an interest in the Student.^[84] The Parents communicated directly with the potential residential placements to schedule interviews and tours. ^[85]

Meanwhile, the IEP did not provide for any interim placement while a state-approved non-public residential school could be located, so the Student remained at Public School 4 in an ICT classroom.^[86] The Student continued to struggle in Public School 4 and the Parent was receiving calls from the school on a regular basis.^[87] The Student was assigned a paraprofessional “to help him move through the day,” but it was not helping and he was engaging in risky behavior and not progressing academically.^[88] Therefore, on June 11, 2022, the Parents unilaterally placed the Student in a temporary wilderness program because the Student was in crisis and needed an immediate placement. ^[89]

Potential Residential Placements

The Student interviewed with and/or toured 5 of the state-approved residential schools, including the State-Approved Residential Placement.^[90] The Student toured and interviewed with Potential Residential Placement 1 on June 6, 2022, but the school could not implement his IEP as written and could not properly address the Student’s math disability.^[91] In addition, the Parents believed the school was not appropriate for the Student since some of the students at the school displayed aggressive behavior, which could trigger the Student as he did not have the impulse control to handle certain situations.^[92] Furthermore, the Parents believed the school was too restrictive of an environment for the Student because the school uses therapeutic holds and restraints on students.^[93] On June 16, 2022, the Parents sent the REDACTED Education Administrator a letter explaining the reasons why Potential Residential Placement 1 was not appropriate for the Student.^[94] The letter reiterates the Parents concerns about placing the Student in a residential school with students displaying serious behavioral issues. ^[95]

Next, the Student interviewed with and toured Potential Residential Placement 2 in June of 2022 but he was rejected from this school.^[96] After this, on August 3, 2022, the Student interviewed with Potential Residential Placement 3 via Zoom and toured this school on September 2, 2022 after the school canceled the previously-scheduled tour date of August 24, 2022.^[97] The Parents felt that this school was not appropriate for the Student and too restrictive as the school staff used therapeutic crisis intervention including restraints and police intervention to de-escalate students when they risk harming themselves or other students.^[98] The Student does not have behavioral issues that would require restraints or police intervention. ^[99]

Furthermore, the Student interviewed with Potential Residential Placement 4 on August 3, 2022 but the school did not invite the Student for a tour because the school wanted to do a second interview with the Student on August 23, 2022, but the school canceled the second interview. ^[100] The Parents stayed in contact with the school to try to get information about the program it can offer to the Student.^[101] Parent 1 also testified credibly that she was never contacted by Potential Residential Placement 5 and that she did not know Potential Residential Placement 6 emailed her because the email dated August 17, 2022 went to her junk mailbox which she did not discover until after the hearing commenced.^[102] Potential Residential Placement 6 never followed up to get in contact with the Parents. ^[103]

The State-Approved Residential Placement and IEP Reconvene Meeting

On May 26, 2022, the Director of Admissions at the State-Approved Residential Placement emailed the REDACTED Education Administrator requesting more information about the Student’s two suspensions from Public School 4.^[104] The next day, the REDACTED Education Administrator forwarded the email to Public School 4’s psychologist, connecting the Director of Admissions at the State-Approved Residential Placement directly to Public School 4.^[105] On June 1, 2022, the Student’s guidance counselor at Public School 4 emailed the Parents about the Director of Admissions at the State-Approved Residential Placement’s request for more information about the Student’s two suspensions.^[106] The Parents were contacted by the Director of Admissions at the State-Approved Residential Placement on June 24, 2022 two months after the Student’s IEP was developed and almost one month after receipt of the Student’s file.^[107] A follow-up phone conversation occurred between Parent 1 and the Director of Admissions at the State-Approved Residential Placement on July 8, 2022. ^[108]

On August 22, 2022, the Student toured and interviewed with the State-Approved Residential Placement.^[109] The State-Approved Residential Placement is a therapeutic residential program “which serves to meet the needs of vulnerable students, empowering them to be leaders and helping them transition back their home communities.” 110 The State-Approved Residential Placement serves male students in grades 7 to 12 and has four 6:1:1 classes and two 8:1:1 classes.^[111] It does not have a 12:1:1 program.^[112] The State-Approved Residential Placement follows the New York State regent’s curriculum to help keep the students on track to graduate and “offers core classes in English and Language Arts, Science, History, and Math.^[113] The State-Approved Residential Placement is a 12-month program that operates 365 days per year and the 2022-2023 academic school year commenced at the placement on July 1, 2022.^[114] In September of 2022, there were 22 students enrolled, but its maximum capacity is 36 students with “approximately^[110] staff members to meet their therapeutic needs.”^[115] The State-Approved Residential Placement utilizes “line of sight supervision” so the only time students are alone is when they are sleeping or in the bathroom. ^[116]

In addition, most of the students have IEPs and “classifications of Emotional Disability (ED), Other Health Impairment (OHI), and Learning Disability (LD) and have management needs that are either intensive or highly intensive and which require a significant degree of individualized attention and intervention.”^[117] In addition, some students have court-adjudicated statuses. On the placement’s application, students are asked to list whether they are court-adjudicated as “JD,” “PINS,” “Article 10,” or not applicable.^[118] I take judicial notice that “JD” stands for juvenile delinquency, PINS stands for persons in need of supervision, and Article 10 refers to Article 10 of the Family Court Act, which is the law governing child protective proceedings in New York State. The application also contains a section for the students to list their county caseworker and/or their probation officer, if applicable.^[119] The State-Approved Residential Placement also provides psychiatric services and an addiction treatment and recovery center. ^[120]

The State-Approved Residential Placement uses a behavioral points system where students receive daily behavior scores. Each day, the score starts at 100 and the students lose points throughout the day if they do not behave. Then, the students are told their scores at the end of the academic day.^[121] While the behavioral points system is not punitive in nature, “there may be additional assignments in a therapeutic workbook to help the student through the problems they’re facing in school.”^[122] Overall, the placement has two primary goals: family restoration and reintegration. The program is not a permanent placement. Instead, it is a “steppingstone to help a student get the therapeutic services they need,” and return home after completing the four phases of the therapeutic program. ^[123]

After the Parents and the Student toured and interviewed with the State-Approved Residential Placement, Parent 1 became concerned that it was too small and too restrictive. Parent 1 was concerned that the State-Approved Residential Placement “could not fulfill [the Student’s] IEP as mandated” and that the only way the Student could be placed there is if the Student’s IEP was changed to a more restrictive 8:1:1 program to fit the needs of the placement.^[124] In addition, Parent 1 was concerned about the needs of the other students at the State-Approved Residential Placement, the use of the behavioral points system since the Student had not done well with this in middle school, and the restrictiveness of constant line of sight supervision.^[125] When Parent 1 asked the placement staff about the peer groupings and what cohort or class the Student would be placed in, the school personnel could not tell her specific information since enrollment is fluid with students routinely being admitted or discharged.^[126] There is no evidence in the record about how the State-Approved Residential Placement would address the Student’s ADHD, executive functioning deficits, and Specific Learning Disorder With Impairment in Mathematics (Moderate severity).

On August 23, 2022, the State-Approved Residential Placement accepted the Student into the program.^[127] The Director of Admissions at the State-Approved Residential Placement sent an acceptance letter to the Parents and to the REDACTED Education Administrator.^[128] In the letter, the Director of Admissions explains the following: [The Student’s] needs can be met at this facility by providing the following services: [1] on-campus academic programming (6:1:1 and 8:1:1 classrooms); [2] structured services within a 24-hour supervised milieu that includes treatmentoriented goals via a phase system, activities including GGI (guided group interactions), recreation groups, community activities, vocational groups, wilderness groups, independent living groups, and adventure-based activities, including an outdoor rock wall & high ropes course; [3] a virtual substance abuse outpatient treatment clinic (only if needed); [4] casework services including intensive treatment programming as well as individual counseling, group discussions, family therapy, and parent coach support; [5] on-campus medical and psychiatric services, including nursing services and medication monitoring and management. ^[129]

In addition, before the Student could be placed at the State-Approved Residential Placement, the placement required participation in a CSE meeting to make adjustments to the Student’s IEP.^[130] On September 1, 2022, the REDACTED Education Administrator sent a memorandum to the supervisor of school psychologists advising that a placement has been secured for the Student and the CSE should reconvene to discuss the changes proposed by the placement and amend the Student’s IEP as necessary.^[131] On September 9, 2022, Public School 4’s psychologist emailed the Parents to schedule the IEP reconvene meeting, and on September 16, 2022, Parent 1 responded expressing concerns about changing the Student’s IEP to a more restrictive program merely to fit the program at the State-Approved Residential Placement.^[132] On September 20, 2022, the CSE reconvened and amended the Student’s IEP, changing the program from 12:1:1 special class at a residential non-public school to a 8:1:1 special class at a residential non-public school.^[133] The Student’s individual counseling services were also changed from once per week to four times per month.^[134] Parent 1 participated in the IEP reconvene meeting and expressed her objection to changing the Student’s IEP for the sole purpose of fitting the placement’s program and that she did not believe the behavioral points system used at the placement would work for the Student since it was not effective with him in the past.^[135] On September 20, 2022, the DOE sent the Parents Prior Written Notice (“PWN”) and a school location letter naming the State-Approved Residential Placement despite the Parents’ objections. ^[136]

Unilateral Placement at Residential Private School On September 6, 2022, the Parents unilaterally placed the Student at the Residential Private School for the 2022-2023 school year.^[137] Prior to enrolling the Student at the Residential Private School, on August 24, 2022, the Parents sent a letter through their attorney to the DOE (“Ten-Day Notice”), expressing their concerns with the CSE’s failure to locate an appropriate residential school placement that can implement the Student’s IEP.^[138] The Ten-Day Notice outlined the Parents’ concerns with the residential placements located by the REDACTED Education Administrator and informed the DOE about the Parents’ intention to enroll the Student at the Residential Private School and seek reimbursement for the 2022-2023 school year if the DOE failed to address the Parents’ concerns and offer the Student a FAPE.^[139] The DOE received the Ten-Day Notice.^[140] On September 12, 2022, Parent 1 sent an email to the REDACTED Education Administrator informing her that the recommended residential placements were not appropriate so the Parents have decided to enroll the Student at the Residential Private School. ^[141]

The Residential Private School “is an independent boarding and day program for students with learning disabilities ranging in age from 13 to 19 years old.”^[142] The school is approved by the Rhode Island Department of Education, accredited by the New England Association of Schools and Colleges and students that attend the school receive diplomas.^[143] The school is co-ed and there are 70 students and 75 staff members at the school.^[144] Academics are tailored to each student’s unique needs and students are grouped in classes based on their learning styles and abilities, and 96 percent of the students are accepted to college upon graduation.^[145] Students who attend the school are provided with accommodations such as small class sizes, scaffolding, differentiated instruction, untimed exams, and the use of multiple modalities to show understanding of concepts being learned.^[146] Every student receives daily individual tutoring where they work with a remedial language specialist to improve communication and language skills. ^[147]

A fundamental component of the academic program at the Residential Private School is language-based, multisensory instruction.^[148] The academic program offers instruction in EnglishLanguage Arts (ELA), Mathematics, Science, History and Social Studies, Arts and Technology, Social Pragmatics, Career Development, Physical Education, and Health or Wellness.^[149] The school uses Orton-Gillingham and Lindamood-Bell methodologies to tailor lessons to each student’s unique needs, which includes “executive function coaching and meta-cognitive awareness strategies to boost student capability, independence, and efficacy.”^[150] In addition, every student at the school participates in a Social Emotional Intelligence class.^[151] Moreover, the residential program at the school “teaches social-emotional and independent living skills necessary for students to become self-assured, self-aware, and active contributors to their communities.”^[152] The structured and predictable nature of the school’s entire program helps “to support the students attentional, executive functioning, and emotional needs.”^[153] The school has an optional level system where students can earn additional privileges such as more phone and technology time.^[154] According to the Assistant Head of the Residential Private School, the Student was accepted to the program because he is the type of student the Residential Private School is designed to support.^[155] The Residential Private School offers a program for students with ADHD, learning disabilities, and executive functioning difficulties. ^[156]

For the 2022-2023 school year, the Residential Private School grouped the Student into classes from 2 to 10 students with peers of similar cognitive abilities, needs, and strengths.^[157] In addition, instruction is language-based and taught in a multisensory way to address the Student’s attentional issues and help him retain the information he is learning.^[158] The teachers modify the instruction and the pace to meet the Student’s needs.^[159] For the 2022-2023 school year, the Student’s class schedule consisted of seven periods plus study hall.^[160] The Student began each day with a 1:1 language tutorial and then had daily periods of Chemistry, English, Wellness, Civics, Language Skills Lab, Algebra, and Social Emotional Intelligence.^[161] The Student attended school daily and did not have an excessive amount of absences.^[162] The Student’s mid-year progress report details his areas of strengths and interventions to address his challenges. ^[163]

The Student’s English class called Literacy Analysis and Composition has five students and one teacher, and the teacher has a master’s degree in English.^[164] The teacher determined that the Student “would benefit from a strategic outline that guides his written responses to nonfiction. [The teacher] introduced [the Student] to the R.A.C.E writing method, which had helped [the Student] to organize his thoughts and ensure he included all necessary information in a meaningful manner.”^[165] This addressed the Student’s executive functioning needs and the Student “has made academic gains in this area” where he can now provide “great content and has posed arguments in his writing.” ^[166]

In Mathematics, the Student studied Algebra during the 2022-2023 school year and his class had two students and one teacher who has a bachelor’s degree in Education.^[167] Since the Student has been diagnosed with Specific Learning Disorder With Impairment in Mathematics (Moderate severity), “the incredibly small class size provided an ideal setting for [the Student] to learn.”^[168] The Student benefited from instruction scaffolded with visual aids, mnemonics, graphic organizers, color coding, guided worksheets, and classroom discussions to help make sure the Student understood the material he was learning.^[169] The Student’s Mathematics teacher describes the Student and his approach to the class as dedicated, honest, positive, open, cordial, friendly, and appreciative. ^[170]

In his 1:1 remedial tutorial class, the Student meets individually with the teacher who is a Remedial Language Specialist.^[171] The “Remedial Language Specialists individually coached students to become the most effective learners relative to their learning profiles, personal strengths, and challenges while bolstering students’ management and executive function skills.”^[172] The Student worked with the specialist to expand his vocabulary using the Townsend Press Vocabulary Program.^[173] In addition, the Student worked on cursive handwriting, extended written responses to text, grammar and syntax, executive functioning, and time management skills.^[174] The specialist describes the Student as “well-mannered and always polite” and while the Student would sometimes get distracted by social situations, he maintained self-awareness and would regain focus as needed. ^[175]

Furthermore, the Student’s Social Emotional Intelligence class is comprised of four students and one teacher.^[176] The teacher has a master’s degree in social work.^[177] In this class, the curriculum targets impulsivity and difficulty with self-regulation.^[178] Throughout the school year, the students work on “self-awareness, self-management, social awareness, and relationship management. Students also worked to understand how others communicate with them and adjust their behaviors to achieve desired outcomes in social interactions.”^[179] The Student successfully participated in daily check-ins and “reflected on his own experiences to demonstrate his understanding of the concepts that were taught in class.” ^[180]

In Civics, the Student is in a small class with one teacher and his teacher has a bachelor’s degree in Education with a focus in History.^[181] The Student’s mid-year progress report shows that the Student “performed exceptionally well during [the] unit on the Constitution, where he analyzed different amendments and a Supreme Court case that interpreted the law.”^[182] While sometimes the Student “became impulsive and silly among his peers, [the Student] was easily redirected and was respectful to his teacher.”^[183] The teacher notes that “these distractions seemed to occur more during more complex tasks where [the Student] was not fully confident in his abilities.”^[184] However, the Student benefited from explicit, clear, and direct instructions for multi-step assignments with the use of graphic organizers.^[185] In addition, taking some time during class to allow the Student to organize his binder and his backpack was beneficial to ensuring that the Student did not misplace classwork and handouts. ^[186]

In Chemistry, the Student is in a class of 6 students and one teacher. His Chemistry teacher has a master’s degree in Education with a focus in Science.^[187] Over the first semester, the Student successfully “absorbed new content from reading passages and demonstrated his understanding each time he was called on to participate in class discussion.”^[188] For example, the Student successfully demonstrated his understanding when he “design[ed] a demonstration that would illustrate what happens to air particles when heated and cooled given a restricted set of materials. [The Student] came up with the idea of using a water bottle with a rubber tube and some soap solution to complete the task efficiently and satisfactorily.”^[189] In addition, the teacher notes in the mid-year progress report that the Student’s written answers were sometimes too brief and did not fully answer the question asked, but the Student “rose to meet expectations when he was challenged to produce more written output.”^[190] The teacher helped the Student to make his written answers more detailed by providing the Student a list of vocabulary words that must be included in his written work. This checklist of requirements assisted the Student in knowing what is expected of him and allowed him to slow down and create more thoughtful written answers. ^[191]

Moreover, the Wellness program at the Residential Private School consists of Health and Physical Education combined. The teacher notes in the Student’s mid-year progress report that the Student “is a model student in the class.”^[192] The Student gets along well with his peers and does an excellent job working with his teammates. ^[193]

The Student’s report card for the first semester of the 2022-2023 school year shows that he earned a letter grade of “A” in Civics, Chemistry, and Algebra, a letter grade of “A-”in Literacy Analysis and Composition and in Wellness, and a letter grade of “B+” in Social Emotional Intelligence.^[194] While the Student has had minor disciplinary incidents such as getting caught kissing a girl in a dorm room and getting into an argument with a peer, Parent 1 believes the Student’s behavior is much more typical now of the average fifteen year old. ^[195]

Afterschool, the Student participates in numerous activities in the residential program. Afterschool recreation is offered “is the areas of art, sports, technology, music, and theater.” ^[196] There are also student clubs such as anime, student council and amnesty.^[197] In the residential program, the Student learns independent living skills and participates in community service and cultural opportunities as well as relationship-building activities.^[198] He is very involved in the athletic programming where he plays soccer, basketball, exercises, and participates in intramural sports. ^[199]

On September 6, 2022, the Parents signed an Enrollment Contract, enrolling the Student at the Residential Private School for the 2022-2023 school year.^[200] Pursuant to the Enrollment Contract, the total cost of the tuition for the school year was $95,600.00.^[201] The Parents have paid the tuition in full. ^[202]

LEGAL FRAMEWORK

FAPE

The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.^[203] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.^[204] A school district has offered a student a FAPE when it complies with the procedural requirements set forth in the IDEA, and the IEP is reasonably calculated to enable the student to receive educational benefits.^[205] Under the IDEA, students with disabilities are entitled to be educated in the least restrictive environment that meets their unique needs. ^[206]

A district must pay for the cost of a student’s tuition at a private school if the three “prongs” of the Burlington/Carter test are met: (1) the district denied the student a FAPE; (2) the private school unilateral placement is appropriate; and (3) the equities favor an order of tuition reimbursement or funding.^[207] In due process hearings under the IDEA in New York, school districts have the burden of proof, including the burden of production and burden of persuasion. However, there is an exception in that a parent seeking tuition reimbursement or funding for a unilateral parental placement has the burden of persuasion and burden of production regarding the appropriateness of such placement. ^[208]

Prong 1

Parents may allege procedural and/or substantive FAPE violations. For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” ^[209]

To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”^[210] The District must offer “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’”^[211] A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.^[212] The IEP must be reviewed at least annually, and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year.^[213] The IEP should: (1) accurately reflect the results of evaluations to identify the Student's needs, 214 (2) provide for the utilization of sufficient special education programs or services,^[215] and then (3) the IEP must be properly and timely implemented.^[216] Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. ^[217]

Prong 2

A unilateral private school placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.”^[218] Parents need not show that the unilateral placement is perfect or that it meets all state educational standards.^[219] Instead, parents must “demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”^[220] In addition, parents seeking reimbursement or tuition funding "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was

214

34 C.F.R. § 300.320(a)(1); 8 N.Y.C.R.R. 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008). inappropriate."^[221] While there are some exceptions, “’the same considerations and criteria that apply in determining whether the [DOE’s] placement is appropriate should be considered in determining the appropriateness of the parents' placement.'" ^[222]

A unilateral placement is appropriate if it provides instruction specially designed to meet the unique needs of a student.^[223] The determination of whether the unilateral placement serves a student’s individual needs and is reasonable calculated to enable a student to receive educational benefits does not depend only on one factor. Instead, courts assessing the appropriateness of a unilateral placement must consider the totality of the circumstances, including but not only, academic progress demonstrated through grades, test scores, progress reports, and regular advancement. ^[224]

Prong 3

Under Burlington/Carter, if the parents are financially obligated to pay for the contracted tuition costs and have met their prong 2 burden, the contract must be fully reimbursed or directly funded by the district unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced.^[225] The courts have “broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”^[226] Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant."^[227] “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [DOE] throughout the process to ensure their child receive[s] a FAPE.”^[228] Specifically, equitable considerations include the parents’ participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the District. ^[229]

In addition, a hearing officer may consider many additional factors, including whether a parent’s unilateral withdrawal of the child from the public school was justified, whether the parent should have availed themself of need-based scholarships or other financial aid from the private school, whether there was any fraud or collusion in generating, or inflating, the tuition to be charged to the school district, and whether the arrangement with the school was fraudulent or collusive in any other respect. ^[230]

CONCLUSIONS OF LAW AND ANALYSIS

This case concerns the Parents’ request that the DOE reimburse them for the cost of the Student’s tuition at the Residential Private School for the 2022-2023 school year. As discussed above, when a parent believes that a school district has failed to provide a student with a FAPE, a parent may unilaterally enroll the child in a private school and seek tuition payment from the school district by filing a due process complaint.^[231] The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” ^[232]

Prong 1

The Parents allege that the DOE failed to provide the Student a FAPE for the 2022-2023 school year when it failed to implement the Student’s April 29, 2022 IEP as written and as intended. Parents allege that the State-Approved Residential Placement that the DOE selected could not implement the Student’s IEP and required his IEP to be changed to fit the State-Approved Residential Placement’s program.^[233] The DOE’s position was that the DOE created an appropriate IEP for the Student and located the State-Approved Residential Placement that could implement his IEP (after amendment) and could meet the Student’s needs.^[234] In order to provide the Student a FAPE, the DOE must offer an IEP that is reasonably calculated to enable the Student to receive educational benefits.^[235] In addition, the Student’s IEP must be properly and timely implemented. ^[236] Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. ^[237]

As to Prong 1 of the Burlington/Carter standard, I find that the DOE failed to meet its burden at the hearing, and I find that the DOE failed to offer the Student a FAPE for the 2022-2023 school year. While the DOE presented credible evidence including two witnesses at the hearing, the weight of the evidence supports the conclusion that the DOE failed to implement the Student’s IEP in a timely fashion as written and as intended. In addition, even if I were to find that the DOE did implement the Student’s IEP by locating the State-Approved Residential Placement,

I find that the State-Approved Residential Placement located by the REDACTED Education Administrator is not appropriate for the Student, does not offer the Student an educational program reasonably calculated to enable the student to receive educational benefit, and does not offer the student specially designed instruction tailored to meet his unique needs.

Primarily, I find that the DOE violated its FAPE obligation when it did not locate an appropriate placement within the mandated timeframes. Under the regulations, the DOE has 30 days to provide a placement to a student who was referred for a non-public school. 238 The IEP was created on April 29, 2022 and mandated a 12-month 12:1:1 program in a residential non-public school.^[239] The implementation date on the IEP is the same date of the IEP meeting, and therefore, I find that the IEP should have been implemented immediately. The IEP specifically states that the Student “demonstrates learning difficulties and problems with study skills, increased somatic complaints in an effort to avoid engaging in school work, and weakness in executive functioning.”^[240] The IEP did not contain any interim placement for the Student while a residential non-public school was being located and instead, the Student remained at Public School 4 in an ICT classroom setting until the Parents unilaterally placed him in a wilderness program on June 11, 2022 because the Student was in crisis and needed an immediate placement.^[241] The State-Approved Residential Placement accepted the Student on August 23, 2022 on the condition that the Student’s IEP be amended to fit the programming offered by the State-Approved Residential School.^[242] The IEP reconvene meeting occurred on September 20, 2022,^[243] which is even after the 10-month school year began. While the DOE argues that the Parents prevented the DOE from locating a placement prior to this time since the Student was in a wilderness program during the summer and the Parents disagreed with various placements such as Potential Residential Placement 1, I find this argument unpersuasive. First, the Parents facilitated Zoom interviews between the Student and potential residential placements while he was in the wilderness program so that did not prevent the REDACTED from locating a placement for the Student. In addition, I find that Potential Residential Placement 1 was inappropriate for the Student and there is no evidence in the record demonstrating that it could properly implement the Student’s IEP as written and as intended.^[244] Moreover, the IEP reconvene meeting where the CSE modified the Student’s IEP meeting to an 8:1:1 program specifically to fit the program offered at the State-Approved Residential Placement was not merely a minor change that commonly occurs in non-public school placements as argued by the DOE Representative. Instead, this change significantly altered the type of program intended by the CSE in the April 29, 2022 IEP meeting. ^[245]

While there is no dispute that the Student needed a non-public residential program, and the Parents and the neuropsychologist agreed with the Student’s April 29, 2022 IEP on its face, I find that the State-Approved Residential Placement located by the REDACTED Education Administrator was inappropriate for the Student. The evidence generated at the hearing shows that the State-Approved Residential Placement offers a 12 to 18-month “therapeutic treatment program” with a “robust clinical team [that] provides services for the students to meet their emotional needs.”^[246] The State-Approved Residential Placement has a maximum capacity of 36 students with 110 staff members who provide “line of sight supervision.”^[247] The State-Approved Residential Placement’s therapeutic program was designed to provide behavioral intervention for students with “intensive or highly intensive management needs.”^[248] The State-Approved Residential Placement is a temporary “steppingstone to help a student get the therapeutic services they need” and work “towards an inevitable discharge date.” ^[249]

This type of therapeutic program was not recommended by the neuropsychologist and there is no evidence in the record that this type of program is what the CSE contemplated when drafting the Student’s April 29, 2022 IEP.^[250] The only witnesses that testified at the hearing who participated in the April 29, 2022 IEP was Parent 1 and the neuropsychologist, and the evidence clearly shows that both Parent 1 and the neuropsychologist did not agree with this type of residential program and placement. Instead, the type of residential program that the Parents and the neuropsychologist agreed with was a 12:1:1 program in a specialized residential school that can support the Student’s ADHD, executive functioning deficits, and tailor instruction to address his learning disability in Mathematics. ^[251]

Furthermore, the evidence shows that the Student does not have the kind of “highly intensive management needs” described by the Director of Admissions at the State-Approved Residential Placement. Instead, the Student is diagnosed with ADHD, Combined presentation (Moderate to Severe severity) and Specific Learning Disorder With Impairment in Mathematics (Moderate severity) per the neuropsychological evaluation.^[252] Thus, the Student has attentional difficulties, executive functioning deficits, and a learning disability in Mathematics.^[253] While the Student has exhibited risky behaviors such as staying out late, playing dingdong ditch in his neighborhood, playing pranks on peers in class, and getting suspended from school for altercations while at Public School 4, 254 the evidence demonstrates that his behaviors manifest from his disabilities, and thus, the residential non-public school appropriate for him is one that is focused on meeting the needs of students with learning disabilities, ADHD, and executive functioning weaknesses, not an intensive therapeutic treatment program.^[255] The evidence shows that the Student does not have the behavioral issues rising to a level of needing purely a therapeutic treatment program, and the Student should not be placed in a school with students who “display aggressive or significant externalizing difficulties.” ^[256]

Similarly, the evidence shows that the program offered by the State-Approved Residential Placement is too restrictive and employs policies and practices that have caused the Student to regress in the past. For instance, I find that the State-Approved Residential Placement uses a behavioral points system similar to the one used at Public School 3, which is inappropriate for the Student. The Student responded poorly to the behavioral points system at Public School 3 as he

254

DPH Tr. 176-178. would consistently lose points each day and feel like he could not succeed.^[257] At the State-Approved Residential Placement, the students learn their behavior scores at a meeting daily right after the academic day ends, “and learn how they can improve their scores the next day and learn.” ^[258]

Moreover, there is no evidence in the record showing that the State-Approved Residential Placement provides specially designed instruction sufficient to meet the Student’s needs. There is no evidence regarding what kind of special education services the State-Approved Residential Placement provides. While the Director of Admissions at the State-Approved Residential Placement explained that if the Student attended the program, he would be placed in small academic classes with a core regents-track curriculum, there is nothing in the record showing how this would meet his unique learning profile and enable the student to receive educational benefits.^[259] While the State-Approved Residential Placement provides a therapeutic behavioral intervention program, there is no evidence that it would provide the Student with specially designed instruction to allow him to make meaningful progress in light of his unique circumstances. There is no evidence showing how the Student’s ADHD, executive functioning weaknesses, and learning disability in Mathematics would be addressed.

Courts and IHOs “may fairly expect [a district] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances,” and to show that an appropriate placement was located to implement the IEP as written and as intended.^[260] However, the record is lacking evidence related to how the placement can meet the Student’s special education needs, allowing him to receive educational benefits and make progress. Therefore, I find that the DOE did not meet its burden to prove that the Student was provided a FAPE for the 2022-2023 school year.

Prong 2

The DOE alleges that the Parent’s unilateral placement is not appropriate. I disagree. A private school placement must be “proper under the Act.”^[261] This means that the Private School must offer an educational program which meets the student’s special education needs.^[262] I find that the Residential Private School meets the Frank G. standard and provides the Student educational instruction that is designed to meet the Student’s unique needs and enable the Student to make progress. Primarily, the Private School is appropriate because it provides the Student with individualized attention and instruction with similarly functioning peers. This “comes within the IDEA definition of ‘special education,’ namely, ‘specially designed instruction . . . to meet the unique needs of a child.’”^[263] All of the Student’s classes at the Residential Private School are “small and supportive to address [the Student’s] attentional needs and need for academic support.”^[264] More specifically, the Student’s Mathematics class only has two students and one teacher and considering that the Student has a Specific Learning Disorder With Impairment in Mathematics (Moderate severity), tailoring his math class to meet his unique needs was crucial and is one factor among others that make the Private School appropriate under Prong 2.

Additionally, the Residential Private School groups the Student into classes with other students who have similar academic, language, social, and emotional functioning profiles. This allows the “teachers to create expectations that are appropriate to each student’s strengths and weaknesses.”^[265] I find that grouping the Student into classes with other students of a similar learning profile is beneficial to the Student as it helps the school make sure that the instruction is at the Student’s level.

Moreover, the Residential Private School is appropriate because it developed individualized goals for the Student and provides the Student with instruction tailored to the Student’s needs. When a teacher at the unilateral placement adapts instruction specifically to meet a student’s unique needs, these factors weigh in favor of the appropriateness of the parent’s unilateral placement.^[266] The record demonstrates that the Residential Private School developed goals for the Student to meet, and the mid-year progress report shows the interventions used to address the Student’s challenges. For example, in Chemistry, the Student was “challenged to produce more written output,” and the teacher helped the Student to make his written answers more detailed by providing the Student a list of vocabulary words that must be included in his written work.^[267] This checklist of requirements assisted the Student in knowing what is expected of him and allowed him to slow down and create more thoughtful written answers.^[268] In addition, in Literary Analysis and Composition, the Student met his goal of “enhanc[ing] his metacognition skills and the depth of his written analysis” by having one-on-one check-ins with the teacher and articulating a plan for his long-term assignments. ^[269]

Furthermore, the Residential Private School is appropriate for the Student because it provides the Student with 1:1 tutorial sessions daily with a remedial language specialist which helps the Student access a meaningful education. The Student worked with the specialist to expand his vocabulary using the Townsend Press Vocabulary Program.^[270] In addition, the Student worked on cursive handwriting, extended written responses to text, grammar and syntax, executive functioning, and time management skills.^[271] The specialist describes the Student as “wellmannered and always polite” and while the Student would sometimes get distracted by social situations, he maintained self-awareness and would regain focus as needed.^[272] Overall, the record makes clear that there are many examples showing that the Residential Private School is individualizing instruction for the Student, and these examples further support a finding that the Private School is appropriate under Prong 2.

Additionally, the Residential Private School is appropriate because it provides the Student with instruction from trained teachers. The law in this circuit is that “a private placement need not provide certified special education teachers…for the disabled student,” but in this case, the Residential Private School nevertheless ensures that its teachers have the training and specialization necessary to teach the Student based on his needs.^[273] Many of the teachers, tutors, and specialists are trained in Orton-Gillingham, which is “an evidence-based methodology [that fosters] cumulative, sequential learning and [helps teachers] tailor lessons to each student’s reading and comprehension and fluency levels.”^[274] In addition, the tutors at the Residential Private School “utilize elements of visualizing and verbalizing from the Lindamood-Bell methodology, as well as intense individually tailored executive function coaching and meta-cognitive awareness strategies.”^[275] All of the teachers at the Residential Private School “participate in frequent, ongoing in-house professional development.”^[276] Therefore, the teachers have sufficient training to teach the Student based on his unique needs and learning profile.

In addition, the Residential Private School is appropriate because the Student is making progress at the school. Significant educational progress can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement.^[277] While a student’s progress at the private placement is not by itself sufficient to determine whether a placement is appropriate, that progress is a relevant factor in assessing the appropriateness of the placement.^[278] In this case, the Student has made significant progress academically. The Student’s report card for the first semester of the 2022-2023 school year shows that he earned a letter grade of “A” in Civics, Chemistry, and Algebra, a letter grade of “A-”in Literacy Analysis and Composition and in Wellness, and a letter grade of “B+” in Social Emotional Intelligence.^[279] Additionally, the Student’s mid-year progress report shows how much he has improved both academically and behaviorally, and details how the program at the Residential Private School addresses his ADHD and executive functioning deficits to allow him to better regulate his behavior and impulsivity.^[280]

Moreover, the Residential Private School is appropriate because it includes a class on Social and Emotional Intelligence as part of its curriculum, which the evidence shows has been beneficial to the Student. In this class, the curriculum targets impulsivity and difficulty with selfregulation.^[281] Throughout the school year, the students work on “self-awareness, selfmanagement, social awareness, and relationship management. Students also worked to understand how others communicate with them and adjust their behaviors to achieve desired outcomes in social interactions.”^[282] The Student successfully participated in daily check-ins and “reflected on his own experiences to demonstrate his understanding of the concepts that were taught in class.”^[283]

Lastly, the Student is not only making progress academically, but also in the residential program. In the residential program, the Student learns independent living skills and participates in community service and cultural opportunities as well as relationship-building activities.^[284] He is very involved in the athletic programming where he plays soccer, basketball, exercises, and participates in intramural sports.^[285] In his mid-year progress report, the residential staff indicates that the Student has been working on and excelling in “acknowledging when he made a mistake.”^[286] The Student has developed the ability to and is continuing to work on self-reflecting, “keeping his emotions in check, practicing saying no, and not being afraid to voice his opinion.”^[287] This is a drastic improvement and shows progress as the Student’s April 29, 2022 IEP specifically states he “oftentimes takes on the role of ‘follower.’” ^[288]

The evidence establishes that the Student’s unique special education needs have been met by the Residential Private School. The instruction offered at the Residential Private School was “reasonably calculated to enable the child to receive educational benefits.”^[289] I find the DOE’s arguments concerning the appropriateness of the Parent’s unilateral placement without merit, and I find that the Parents have met their burden in proving that the Residential Private School offered an educational program which met the Student’s needs under Prong 2 of the Burlington/Carter standard.

Prong 3

Lastly, as described previously, under the third and final prong of the Burlington/Carter test, courts consider “equitable factors” relevant to an order of tuition.^[290] I find that the equities favor the Parents’ claims. Here, the Parents fully cooperated with the CSE, the REDACTED Education Administrator, and all school personnel from the various potential placements. Specifically, Parent 1 fully participated in the IEP process. The Parents’ cooperation and participation weighs in favor of the Parents’ request for a tuition award under Prong 3 of the Burlington/Carter standard.^[291] Here, Parent 1 participated in the April 29, 2022 IEP meeting. ^[292] Additionally, the Parent 1 ensured that the neuropsychologist also participated in the IEP meeting.^[293] Lastly, the Parent shared the Student’s neuropsychological evaluation report, a letter from the Therapist, and a letter from the Learning Specialist Tutor with the CSE. ^[294]

Next, the Parents attempted to obtain information about all of the REDACTED’s proposed placements. The Parents arranged for the Student to interview with and/or tour 5 of the state-approved residential schools, including the State-Approved Residential Placement, and remained in contact with the REDACTED Education Administrator throughout the entire process.^[295] The Parents even arranged for the Student to have two interviews virtually while he was temporarily in the wilderness program. ^[296]

Furthermore, on August 24, 2022, the Parents provided the necessary Ten-Day Notice of their concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year and their intent to unilaterally place the Student in the Residential Private School.^[297] In the notice letter, the Parents list their concerns regarding the various proposed residential placements including the State-Approved Residential Placement.^[298] While the DOE argues that the equities support the DOE, and that it was not reasonable for the Parents to reject the placement at the State-Approved Residential Placement, I disagree. I also find that the DOE’s remaining arguments as to the equities are without merit.

As discussed previously, the Parents signed an Enrollment Contract with the Residential Private School for the Student to attend the school for the 2022-2023 school year.^[299] According to the contract, the cost of the tuition for the 2022-2023 school year is $95,600.00.^[300] According to the Residential Private School’s Tuition Affidavit, the entire amount of $95,600.00 has been paid in full.301 I find no issue with the reasonableness of the cost of tuition for the Residential Private School. The Student’s attendance record for the 2022-2023 school year shows that the Student attended the Private School regularly with only a reasonable number of absences. 302 Overall and after considering the record at the hearing, I find that the equities support the Parents’ claim for tuition reimbursement.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby: ORDERED that Parents’ claim for reimbursement for the student's unilateral placement at the Residential Private School is GRANTED for the 2022-2023 school year. The New York City Department of Education shall reimburse the Parents in the amount of $95,600.00 within 15 days of the date of this Order. The DOE shall not require any documentation that is not already in the hearing record to issue reimbursement to the Parents.

SO ORDERED.

DATED: July 3, 2023 Robin Levin, Esq.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

APPENDIX A- EXHIBITS ENTERED INTO THE RECORD

DOE’S EXHIBITS

1. Exhibit Description Date Pages SESIS Event Log 04/12/2023 13 pages DOE

2. Neuropsychological 03/11/2022 to 04/06/2022 30 pages DOE

3. Classroom Observation 4/26/2022 1 page DOE

4. Educational Evaluation 4/26/2022 3 pages DOE

5. Therapist Note 4/28/2022 1 page DOE

6. Learning Specialist Note 4/28/22 1 page DOE

7. Social History Eval 4/29/2022 4 pages DOE

8. IEP 4/29/2022 19 pages DOE

9. Grade Transcript REDACTED Undated 3 pages DOE

10. Deferral to REDACTED 5/20/2022 5 pages DOE

11. Non-Public School Tracking Form 5/20/2022 to 8/23/2022 4 pages DOE

12. Letter from Parents rejecting REDACTED 06/16/2022 2 pages DOE

13. E-mail exchange between Parent and 06/24/2022 to REDACTED 06/29/2022 2 pages DOE

14. Securement Acceptance 9/01/2022 2 pages DOE

15. IEP Reconvene 09/20/2022 19 pages DOE

16. Affidavit of REDACTED 04/12/2022 3 pages DOE

17. Affidavit of REDACTED 04/7/2022 4 pages DOE

PARENT’S EXHIBITS

A. Due Process Complaint 12/20/2022 9 pages

B. Email REDACTED 5/20/2022 4 pages

C. REDACTED Packet 8/23/2022 32 pages

D. Email with REDACTED 8/24/2022 5 pages

E. TDN 8/24/2022 4 pages

F. TDN receipt 8/24/2022 1 page

G. Enrollment Contract: REDACTED 9/06/2022 1 page

H. Email to REDACTED 9/12/2022 1 page

I. Email REDACTED 9/12/2022 6 pages

J. Prior Written Notice 9/20/2022 1 page

K. School Location Letter 9/20/2022 1 page

L. REDACTED Program Description Undated 4 pages

M. REDACTED Transcript 1/30/2023 1 page

N. REDACTED Mid-Year Report 1/30/2023 8 pages

O. REDACTED Mid-Year Residential Report 1/30/2023 2 pages

P. Class Schedule 3/08/2023 2022-2023 2 pages

Q. YTD Attendance Report 3/08/2023 2022-2023 1 page

R. Tuition Affidavit 3/08/2023 2022-2023 1 page

S. Email from REDACTED re: IEP 9/09/2022 1 page

T. Parent Email reply to REDACTED re: IEP 9/16/2022 4 pages

U. Email: REDACTED 6/01/2022 4 pages

V. Email: REDACTED 6/03/2022 2 pages

W. Email: REDACTED 8/23/2022 5 pages

X. Email: REDACTED 8/24/2022 5 pages

Y. Email: REDACTED 8/30/2022 1 page

Z. Neuropsychologist Affidavit: REDACTED 5/11/2023 10 pages

AA. School Affidavit: REDACTED 5/11/2023 11 pages

IHO’s EXHIBITS

I. Corrected Due Process Complaint 3/08/2023 9 pages

II. Emails Requesting/Granting Extension of the Compliance Date 4/27/2023 2 pages

III. Department of Education- Closing Brief 6/28/2023 18 pages

IV. Parents- Closing Brief 6/28/2023 19 pages

Footnotes

[1] Exhibits will be referred to as “Ex.” followed by lettered designations for Parents’ Exhibits, numbered designations for DOE’s Exhibits, and uppercase roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parents’ Exhibit A, page 1, will be referred to as (Ex. A-1). Transcripts will be referred to as “Tr.” followed by the page number(s) within the transcript and the type of conference or hearing and/or dates as needed.

[2] Ex. 8; Ex. A.

[3] Ex. A. The Parents first unilaterally placed the Student in an interim summer wilderness program. However, the Parents are not seeking reimbursement for the wilderness program. In addition, the DPC also requests attorney’s costs and fees, but since I do not have the authority to grant them, this requested relief will not be discussed herein.

[4] Id.

[5] Ex. A-2.

[6] Ex. A-2-3.

[7] Ex. A-7.

[8] Ex. A-8.

[9] Ex. A-7-8.

[10] PHC 2/13/2023 Transcript (“Tr.”) 6. A DOE agency attorney for the DOE appeared at this PHC.

[11] PHC 2/13/2023 Tr. 6-7, 9-10. See Order of Extension 1.

[12] See DOE NOA.

[13] On the same date, March 10, 2023, the Parents’ Attorney submitted a corrected DPC dated March 8, 2023 which corrected a clerical error in paragraph 7, changing “day program” to “residential program.”

[14] PHC 3/10/2023 Tr. 6.

[15] PHC 3/10/2023 Tr. 7-8.

[16] PHC 3/10/2023 Tr. 15.

[17] SC 4/7/2023 Tr. 5.

[18] SC 4/7/2023 Tr. 15.

[19] Ex. 1-17; DPH Tr. 9.

[20] Ex. A-R; DPH Tr. 11.

[21] DPH Tr. 25-64; DPH Tr. 67-91.

[22] Between hearing dates, on April 27, 2023, Parents’ Attorney requested an extension of the compliance date via email. The DOE Representative had no objection, and I granted the request to allow the DPH to continue and for witnesses to be available (See Order of Extension 2; IHO Ex. II).

[23] DPH Tr. 100, 102, 146, 214; See Ex. S-Y, AA.

[24] DPH Tr. 105-122.

[25] DPH Tr. 123-175.

[26] DPH Tr. 176-213.

[27] DPH Tr. 214-217.

[28] DPH Tr. 217-218; See Order of Extension 3.

[29] DPH Tr. 225.

[30] DPH Tr. 228-230.

[31] The parties’ closing briefs are included in the record as IHO Ex. III (DOE) and IHO Ex. IV (Parents).

[32] IHO Ex. III.

[33] IHO Ex. IV.

[34] Ex. A-1.

[35] DPH Tr. 124.

[36] Ex. Z-5.

[37] DPH Tr. 124.

[38] Ex. 8-1.

[39] DPH Tr. 125.

[40] Ex. 2-15.

[41] DPH Tr. 125.

[42] Id.

[43] DPH Tr. 126.

[44] DPH Tr. 128.

[45] Id.

[46] Id.

[47] DPH Tr. 129.

[48] Id.

[49] DPH Tr. 129-130.

[50] DPH Tr. 129-131.

[51] DPH Tr. 130.

[52] DPH Tr. 131.

[53] Id.

[54] DPH Tr. 132.

[55] DPH Tr. 132-133.

[56] DPH Tr. 133.

[57] Ex. 5.

[58] Id.

[59] DPH Tr. 135.

[60] Id.

[61] Ex. 9.

[62] Ex. 2; Ex. Z-4. The neuropsychologist holds a Psy.D. in Clinical Psychology (Ex. Z-1).

[63] Id.

[64] Ex. 2-1; Ex. Z-4.

[65] Ex. 2-16.

[66] Ex. 2-15; Ex. Z-7.

[67] Ex. 2-16; Ex. Z-7-8.

[68] Id.

[69] Ex. 2-16.

[70] Id.

[71] Ex. 2-16; Ex. Z-8.

[72] Ex. 2-17; Ex. Z-8-9.

[73] Ex. 2-17; Ex. Z-8.

[74] Ex. 2-17.

[75] Ex. 8.

[76] DPH Tr. 137. See Ex. 2; Ex. 5; Ex. 6.

[77] Ex. 3; Ex.4; Ex. 7.

[78] Ex. 8.

[79] Ex. 8-4.

[80] Ex. 8. The implementation date on the IEP is the same day the IEP meeting was held.

[81] Ex. 10-5.

[82] Ex. 16-1-2.

[83] Ex. 16-2; Ex.1; Ex. B.

[84] Ex. 16-2.

[85] Ex. B; Ex. D; Ex. I; Ex. W; Ex. X; Ex. Y.

[86] DPH Tr. 139.

[87] DPH Tr. 140.

[88] DPH Tr. 141. Ex. 9.

[89] DPH Tr. 151; DPH Tr. 194.

[90] DPH Tr. 141-157. The State-Approved Residential Placement will be discussed separately in the section below.

[91] DPH Tr. 141-143.

[92] DPH Tr. 142.

[93] DPH Tr. 143.

[94] Ex. 12.

[95] Id.

[96] DPH Tr. 144; Ex. 11-2.

[97] DPH Tr. 156. The CBST Education Administrator testified that the Student did not interview with or tour Potential Residential Placement 3, but the evidence shows otherwise (See DPH Tr. 156; Ex. W; Ex. X.).

[98] Ex. A-5.

[99] Id.

[100] DPH Tr. 154-155; DPH Tr. 210.

[101] Ex. Y.

[102] DPH Tr. 156-157.

[103] DPH Tr. 157.

[104] Ex. U.

[105] Ex. U-2.

[106] Ex. U-1. DPH Tr. 146-147.

[107] DPH Tr. 149. Ex. 13. The Director of Admissions at the State-Approved Residential Placement testified that he received the referral from CBST on or about June 24, 2022, the day he reached out to the Parents. (Ex. 17-2-3). However, the evidence show that this is incorrect since the Director of Admissions reached out to the CBST Education Administrator for more information regarding the Student on May 26, 2022 (Ex. U-3) and he reached out to Public School 4’s psychologist on June 1, 2022 (Ex. U-1).

[108] DPH Tr. 68.

[109] DPH Tr. 103.

[110] Ex. 17-1-2.

[111] Id.

[112] DPH Tr. 72.

[113] DPH Tr. 84. Ex. 17-2.

[114] DPH Tr. 86.

[115] DPH Tr. 87.

[116] Id.

[117] Ex. 17-2.

[118] Ex. C-3.

[119] Id.

[120] DPH Tr. 84;Ex. C-18-32.

[121] DPH Tr. 74-75.

[122] DPH Tr. 79.

[123] DPH Tr. 83.

[124] DPH Tr. 188.

[125] DPH Tr. 158-159.

[126] DPH Tr. 159-160.

[127] Ex. 14-2.

[128] Id.

[129] Id.

[130] Id.

[131] Ex. 14-1.

[132] Ex. S; Ex. T.

[133] Ex. 15-2.

[134] Id.

[135] Ex. 15-4.

[136] Ex. J; Ex. K.

[137] Ex. G.

[138] Ex. E.

[139] Id.

[140] Ex. F.

[141] Ex. H.

[142] Ex. AA-2.

[143] Ex. L-1; Ex. AA-2.

[144] Ex. AA.

[145] Id.

[146] Ex. L-1-2; Ex. AA-3.

[147] Ex. L-1-2; Ex. AA-3-4.

[148] Id.

[149] Id.

[150] Ex. AA-4.

[151] Ex. L-3. Ex. AA-5.

[152] Ex. L-4.

[153] Ex. AA-4.

[154] DPH Tr. 119-121.

[155] Ex. AA-6.

[156] Ex. AA; DPH Tr. 170.

[157] Ex. AA-7.

[158] Id.

[159] Ex. AA-8.

[160] Ex. P.

[161] Id.

[162] Ex. Q.

[163] Ex. N.

[164] Id.

[165] Id.

[166] Ex. AA-8-9.

[167] Ex. AA-9. Ex. M; Ex. N-6-7. Ex. P.

[168] Ex. N-7.

[169] Id.

[170] Ex. N-6-7.

[171] Ex. N-3-4.

[172] Id.

[173] Ex. N-4.

[174] Id.

[175] Ex. N-5.

[176] Ex. AA-9.

[177] Id.

[178] Id.

[179] Ex. N-7.

[180] Ex. N-8.

[181] Ex. AA-10.

[182] Ex. N-3.

[183] Id.

[184] Id.

[185] Id.

[186] Id.

[187] Ex. AA-10.

[188] Ex. N-1.

[189] Id.

[190] Id.

[191] Id.

[192] Ex. N-5.

[193] Id.

[194] Ex. M.

[195] DPH Tr. 182-183.

[196] Ex. AA-6.

[197] Id.

[198] Id.

[199] Ex. AA-8.

[200] Ex. G.

[201] Id.

[202] Ex. R.

[203] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).

[204] 34 C.F.R. §300.13.

[205] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

[206] Oberti v. Board of Educ., 995 F.2d 1204 (3rd Cir. 1993)

[207] Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-15 (1993).

[208] NY Educ. Law § 4404(1)(c)).

[209] 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2).

[210] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

[211] Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998).

[212] Endrew F.,137 S.Ct. 988, 999.

[213] 34 C.F.R. §300.324(b)(1)(i); 8 N.Y.C.R.R. §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010).

[215] 34 C.F.R. § 300.320(a)(4); 8 N.Y.C.R.R. 200.4(d)(2)(v); Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.

[216] See 8 N.Y.C.R.R. 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.

[217] J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).

[218] Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007).

[219] Frank G., 459 F.3d at 364-65; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).

[220] Frank G., 459 F.3d 356, 364; Gagliardo, 489 F.3d 105, 112.

[221] Gagliardo, 489 F.3d at 112.

[222] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364.

[223] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 C.F.R 300.39(a)(1); 8 N.Y.C.R.R. 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).

[224] Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 112.

[225] See Carter, 510 U.S. at 16.

[226] J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011).

[227] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47 (2009).

[228] Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007).

[229] D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 (S.D.N.Y. 2011).

[230] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

[231] Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 376 (2d Cir. 2014) (quoting Reyes ex rel. R.P. v. New York City Dep’t of Educ., 760 F.3d 211, 215 (2d Cir. 2014)).

[232] 20 U.S.C. § 1415(b)(6)(A).

[233] IHO Ex. IV.

[234] IHO Ex. III.

[235] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

[236] See 8 N.Y.C.R.R. 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.

[237] J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011). See 8 N.Y.C.R.R. 200.4(e)(7) 238

[239] Ex. 8.

[240] Ex. 15-3.

[241] DPH Tr. 151; DPH Tr. 194.

[242] Ex. 14-2.

[243] Ex. 15.

[244] I note that the DOE did not defend Potential Residential Placement 1 at the hearing. The only placement the DOE defended was the State-Approved Residential Placement. Further, the evidence shows that Potential Residential Placement 1 uses therapeutic restraints and holds on the students when necessary and “the school accepts students with social anxiety, serious emotional disturbance, bipolar disorder, ODD, impulsivity, verbal aggression, schizophrenia, and at times the students have a dual diagnosis” (Ex. 12). I find this an inappropriate placement for the Student.

[245] DPH Tr. 161.

[246] DPH Tr. 79, 84, 158-159.

[247] DPH Tr. 85-88.

[248] Ex. 17-2.

[249] DPH Tr. 79, 83.

[250] DPH Tr. 161.

[251] Ex. Z-8; DPH Tr. 161.

[252] Ex. 2-16; Ex. Z-8.

[253] Id.

[255] See Ex. 2-17. The neuropsychological evaluation report specifically indicates that the Student’s diagnoses affect his cognitive, emotional, and behavioral regulation and “are contributing to both academic and behavioral regression due to being inappropriately supported at his current school environment” (Ex. 2-17).

[256] Ex. 2-17; Ex. Z-8.

[257] DPH Tr. 131.

[258] DPH Tr. 88.

[259] DPH Tr. 84; Ex. 17-2; Ex. 14-2.

[260] Endrew F., 137 S. Ct. 988, 1002 (2017).

[261] Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370.

[262] Gagliardo, 489 F.3d 105, 112,115; Walczak142 F.3d 119.

[263] Frank G., 459 F.3d at 365 (citing 20 U.S.C. § 1401(29)).

[264] DPH Tr. AA-10.

[265] Ex. AA-3.

[266] Frank G., 459 F.3d at 365-66.

[267] Ex. N-2.

[268] Id.

[269] Id.

[270] Ex. N-4.

[271] Id.

[272] Ex. N-5.

[273] Frank G., 459 F.3d at 364.

[274] Ex. AA-4.

[275] Id.

[276] Id.

[277] Frank G., 459 F.3d at 365 (citing Knable, 238 F.3d at 768).

[278] Weaver v. Millbrook Cent. Sch. Dist., 812 F. Supp. 2d 514, 523 (S.D.N.Y. 2011).

[279] Ex. M.

[280] Ex. N.

[281] Ex. AA-5.

[282] Ex. N-7.

[283] Ex. N-8.

[284] Ex. AA-6.

[285] Ex. AA-8.

[286] Ex. O-1.

[287] Id.

[288] Ex. 8-4.

[289] Frank G., 459 F.3d at 364.

[290] Gagliardo, 489 F.3d at 112.

[291] M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 254 (2d Cir. 2012).

[292] Ex. 8-19.

[293] Id.

[294] DPH Tr. 137. See Ex. 2; Ex. 5; Ex. 6.

[295] DPH Tr. 141-157; Ex. B; Ex. H; I; Ex. W; Ex. X; Ex. Y; Ex. 1; Ex. 12; Ex. 13.

[296] DPH Tr. 156.

[297] 34 C.F.R. § 300.148(d)(1)(ii); Ex. E.

[298] Ex. E.

[299] Ex. G.

[300] Id. 301 Ex. R. 302 Ex. Q.