New York City Department of Education, Impartial Hearing Decision

Case Number: 595869 – NYC: 245525

FINDINGS OF FACT AND DECISION

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 03/09/2023 Pre-Hearing Conference

04/14/2023 Status

04/28/2023

05/12/2023

Actual Record Close Date: 05/16/2023

Decision Date: 05/16/2023

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/09/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], Legal Assistant

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON 04/14/2023

(All present by video or telephone)

For the Student:

[REDACTED], Legal Assistant

For the Department of Education:

[REDACTED], ESQ., Attorney

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

(All present by video or telephone)

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 05/12/2023

(All present by video or telephone)

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

[REDACTED], CSE Liaison

The [REDACTED] School

For the Department of Education:

[REDACTED], ESQ., Attorney

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

EX. DATE DOCUMENT Page(s) Entered 03/09/2013 A 2/1/23 Due Process Complaint (DPC) 8 Entered 04/28/2023 B 2020 Tax Form 1040 4 C 5/21/21 Neuropsychologist Letter to School Base Support Team (SBST): Request for Re-evaluation 1 D 9/12/21 Neuropsychological Evaluation 16 E 5/2/22 Emails from [REDACTED]: Teacher Report and IEP Supports 1 F 6/16/22 Neuropsychological Evaluation 25 G 8/22/22 Ten Day Notice (TDN) 3 H 8/22/22 Ten Day Notice (TDN) Confirmation 1 I 10/19/22 Lunch Receipt 3 J 2/13/23 The [REDACTED] School Tuition Affidavit 1 K 4/2/23 Meals Affidavit 1 L 2022-2023 The [REDACTED] School Class Schedule 1 M Undated The [REDACTED] School Program Description 1 Entered 05/12/2023 N 2022-2023 The [REDACTED] School Mid-Year Report Card 11 O 06/15/2022 Enrollment contract with cover letter and tuition information 16

DEPARTMENT OF EDUCATION (DOE)

None

IMPARTIAL HEARING OFFICER

Entered 03/09/2023

I Notice of Appointment, 02/07/2023, 4 pages

INTRODUCTION

On 02/07/2023, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Pre-Hearing Conference was held, on 03/09/2023.

Legal Assistant, from Parent Attorney office, advised the IHO that documents were being assembled for possible settlement. (T 4)

A Status Conference as set, for 04/14/2023, to check on the progress of any potential settlement. (T 6)

At the Status Conference the IHO was advised that the Parent Attorney had submitted documents and was awaiting a response from the DOE. (T 9-10)

Hearing was set, for 04/28/2023, to allow some additional time for settlement to progress, and on that date the DOE would be given an opportunity to defend against the allegations contained in the DPC. (Ex A)

Hearing continued and concluded, on 05/12/2023.

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 21-22 and 22-23 school year. (Ex A 1)

Allegations are uncontested and include:

- Student is a disabled child, [REDACTED], attending [REDACTED] grade at The [REDACTED] School/Unilateral Placement (UP), with a variety of diagnoses (Ex A 2); - Student began showing academic delays in [REDACTED] grade, and received a speech language evaluation, revealing dyslexia, which prompted Parents to engage reading intervention in the form of a tutor (Ex A 2); - For [REDACTED] grade Parents continued to engage interventions to address Student challenges (Ex A 2-3)’ - In July of 2021 Student underwent an independent neuropsychological evaluation, confirming Student delays and prompting an IEP meeting, the contents of which the Parent believes are not appropriate (Ex A 2-4) - Parent details a variety of allegations relating to the insufficiency of the IEP, of 07/2021 (Ex A 2-4); - Student struggles continued in [REDACTED] grade, and she received another neuropsychological evaluation (Ex A 6); - Evaluation revealed delays and concerns related to academics, including reading (Ex A 6); Evaluation included: Student required placement in a small (i.e. student to teacher ratio), structured, language-enriched classroom within a small, specialized school; should be placed with students with similar profiles, specifically, bright student with language and learning needs, and be provided with opportunities for small group and 1:1 support so that she can make progress; needs intensive and frequent remediation to target foundation academic skills on a 1:1 basis (Ex A 7); - Given Student’s failure to progress in the 2021-2022 school year, the Parents do not believe the same placement is likely to enable meaningful progress in the 2022-2023 school year; - On August 22, 2022, the Parents informed the CSE of their concerns with Student’s program and placement and informed the CSE of their intent, absent an appropriate and timely program and placement, to enroll Student at UP for the 2022- 2023 school year and seek public funding (Ex A 6); - Parent contends the UP is appropriate, and equities favor the Parent. (Ex A 7)

Parent seeks a variety of forms of relief to remedy the alleged failure, including:

- Reimbursement/direct funding of Student’s UP Tuition for from September 2022 through June 30, 2023; - Reimbursement of monies paid to date and any payments made in the future; - Door-to-door special transportation/suitable transportation to the UP; and - Reimbursement for the cost of breakfast and lunch during school days as student would have been eligible to receive free breakfast and lunch had student attended public school during the 2022-2023 school year. (Ex A 7)

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 avail itself of the opportunity to defend against the allegations contained in the DPC. (Ex A)

The DOE did not contest any of the evidence presented by the Parent, during the Hearing process.

At Hearing, the Parent supported its position via Documentary Evidence and Oral Testimony.

Parent Attorney outlined the Parent’s position, at Hearing of 05/12/2023:

- This case involves a [REDACTED]-year-old girl, diagnosed with a specific learning disorder with impairments in reading, written expression, and mathematics (T 35); - Student has strong cognitive ability and good academic potential, but her diagnosis interferes with her ability to learn; - Student needs a very specific learning environment to do so which includes placement in a small, structured, language-based classroom with highly trained educators who can address her academic weaknesses in reading, writing, and math using evidence-based instruction where remediation is implemented throughout the school day; - The DOE did not provide Student with these supports during the '21/'22 and '22/'23 school years; - On 08/14/2022, the Parent informed the Committee on Special Education (CSE) of the intent to place Student, at the UP, in the absence of an appropriate program and placement; - Student’s UP program provides the language-based, small, supportive classroom within a small-school environment that can provide opportunities for frequent oneto-one support, needed for the Student to make progress and address Student deficits (T 35-36); - Student UP educational program is individualized and utilizes evidence-based curriculums to target Student’s specific needs; - “The evidence will show that the program that the parents have placed [Student] in meets the relaxed standard of the Frank G. analysis and that they are seeking reimbursement for a program that is absolutely necessary for [Student’s] progress.” (T 37); - And: “…the evidence will demonstrate that [Student’s] parent has at all times acted in good faith. He was absolutely open to seeking an appropriate program for her. Due to the DOE's failure to provide a timely and appropriate program and placement, the parent acted in good faith in timely notifying the DOE of his intent to seek reimbursement for an appropriate placement at [UP].” (T 38)

Parent Attorney reiterated this position with a closing statement at Hearing, of 05/12/2023. (T 64-65)

The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below: [REDACTED], CSE Liaison, The [REDACTED] School UP CSE Liaison provided Testimony that included:

- Her qualifications and role at the UP (T 39-40); - General characteristics of the UP, which include: “a kindergarten through 12th grade co-ed private prep school in New York City. The students all have average to high-average cognitive abilities. But also, all have language-based learning disabilities or language disorders.” (T 41); - Familiarity with the Student who is in [REDACTED] grade, at the UP (T 41-42); - Student program includes: o 12:1:1 classroom ratio for all classes o head teacher o head special ed teacher o assistant special ed teacher o for math and decoding, Student is in groups with other students in both her [REDACTED]-grade class and the other two 5th-grade classes that are also on her level in both math and decoding o ten students in both her math group and decoding group o counseling once a week, in a group and o speech and language (T 42-43); - Student receives and individualized program and a lot of one-on-one support - Student responds well and benefits from small classrooms, teacher modeling and scaffolding (T 43) - A review of Student curriculum, which is multi-sensory (T 43-45); - Part of Student program includes the use of Orton-Gillingham, which is an evidence based, multisensory, approach to phonics (T 45-46); - Student diagnoses include: a learning disability in reading…accuracy. She has a learning disability in written expression. She has a learning disability in math. And then I also believe she has a diagnosis of -- not developmental order, but something dealing with her emotions.” (T 47); - Student has struggles with phonological awareness (T 48); - Student was assessed, at the beginning of the year, for math skills; - Student struggled in math, and was at about a mid [REDACTED] grade level (T 48-49); - Student goals for decoding, reading comprehension, writing and math were outlined (T 49-51); - Student language-based classroom supports include: speech language therapists pushed into the classroom (T 51-52); - Student supports include: opportunities to receive one-to-one instruction; scaffolding classwork; executive functioning strategies such as highlighting key words in a text with one color; an iPad, so she can listen to books to help with fluency; and decoding and math groups, where teachers can very easily pull her aside within the class and work with her one-on-one on a concept (T 52-53); - Student is supported by a literacy specialist (T 54-55); - Student supports include: all academic teachers and some of her special teachers are special ed certified; teachers devise strategies and implement them to help with reading, such as highlighting; and chunking words that she might be practicing during a decoding lesson (T 59-60); - Student speech and language therapy is more push-in, and supports her more in the writing process, and during comprehension lessons (T 55); - Student receives counseling once a week in a group of six students in her class, led by the elementary school psychologist, where discussions held are developmentally appropriate, including self-advocacy (T 55-56); - Student has made progress, at the UP, including in areas of: Counseling, and Reading (T 57-58); and - Student fits the profile of a typical student, at the UP (T 58).

[REDACTED], Parent

Student’s father provided Testimony that included:

- Student is making progress: “I see that she's making progress mostly in her like confidence and in her sort of ability to do like homework and stuff.” (T 62); - Student is making progress in Reading (T 62); - The UP provides Student with lunch, paid for by the Parent, at a cost of $[REDACTED] dollars each month (T 62-63); - Parent income was $[REDACTED] last year (T 63); - He cannot pay the cost of the UP (T 63); - He did not interfere with the DOE’s IEP process and remains at all times open to a public school program and placement for the 22-23 school year (T 63); and - The Student did not receive any scholarship or financial aid for the UP Tuition (T 63-64).

A 2/1/23 Due Process Complaint (DPC)

Details allegations, Student educational history, and sought after relief.

B 2020 Tax Form 1040

Income for the 2020 calendar year is set forth as $[REDACTED]. (Ex B 1)

C 5/21/21 Neuropsychologist Letter to School Base Support Team (SBST):

Request for Re-evaluation Parent communicates, with the DOE to request a Neuropsychological Assessment at DOE Expense, due to concerns raised by Student’s teacher with concerns about her academic progress.

D 9/12/21 Neuropsychological Evaluation

Evaluation includes results of Student testing, resulting in findings and recommendations that include:

- Student is a [REDACTED] with a history of encopresis and academic underachievement; - Student is enrolled in an Integrated Co-Teaching (ICT) classroom with related services of counseling and has an IEP classification of Learning Disability; - Neuropsychological profile reflects cognitive skills in the Average range, which includes verbal comprehension, visual spatial reasoning, fluid reasoning, visual motor integration, processing speed, verbal learning and memory (Ex D 13); - Weaknesses in the following areas: • Reading • Writing • Math. • Adjustment Disorder (Ex D 13) - Diagnoses include: o Specific Learning Disorder (SLD), with impairment in reading accuracy (also known as Dyslexia) o Specific Learning Disorder (SLD), with impairment in written expression (also known as Dysgraphia) o Specific Learning Disorder (SLD), with impairment in mathematics (also known as Dyscalculia) o Adjustment Disorder with mixed disturbance of emotions and conduct (Ex D 14) - Recommendations include: o IEP Classification: Learning Disability. o Class Placement: ICT setting with Special Education Teacher Support Services (SETSS) instruction for ELA, Writing, and Math subjects given her Speech Language Delay (SLD) conditions. o All class instruction to be provided according to a multisensory, evidence-based framework (e.g., Orton-Gillingham, Wilson Reading Program, TouchMath, etc.) to best address her learning needs. o If significant progress cannot be gained within the next year towards remediation of her SLDs, it is recommended that a specialized, non-public school placement be considered for the following year. o Related Services: Counseling to address her emotional and psychosocial needs; and occupational therapy evaluation will also beneficial to help with possible fine motor issues. o Testing Accommodations: For all classroom, district-wide, and state tests in order to reduce the impact of her SLD conditions on her testing performances. This should include increased time (x1.5) and opportunity to take all tests in a separate location/room with minimal distractions (i.e., not just state assessments). o Assistive Technology Evaluation: To determine if technology services can help her gain better access to the educational curriculum due to her SLD conditions. Such services can include individual laptop or tablet device fitted with specialized software to address areas of academic weaknesses, among other applications. (Ex D 15)

E 5/2/22 Emails from [REDACTED]: Teacher Report and IEP Supports

Parent seeks information regarding Student progress and possible need for additional supports.

F 6/16/22 Neuropsychological Evaluation

Evaluation includes results of Student testing, resulting in findings and recommendations that confirm Student areas if delay, and the need for special education services:

- Student exhibits language and learning challenges that impact her daily academic functioning. To preserve her motivation for learning, Student must be afforded appropriate interventions, accommodations, and a learning environment that can meet her needs; - While improvements in emotion and behavioral regulation were noted, it appears that Student does struggle in some contexts. That said, targeted emotional support is recommended to help foster greater compliance, build Student’s emotional resources, and support her resiliency (Ex F 21); - Diagnostic Impressions include: o Specific Learning Disorder with Impairment in Reading o Specific Learning Disorder with Impairment in Written Expression o Specific Learning Disorder with Impairment in Mathematics o Rule Out Language Disorder (Recommendation made for speech language evaluation – Ex F 20) (Ex F 21)

G 8/22/22 Ten Day Notice (TDN)

Parent provides appropriate TDN, notifying the District of: objection to the DOE provided 21-22 Student program, and the recommended 22-23 Student program; intent to place Student at the UP, for the 22-23 school year; and intent to seek District funding for said placement. (Ex G 3)

H 8/22/22 Ten Day Notice (TDN) Confirmation

Confirmation of the District’s receipt of the TDN. (Ex G)

I 10/19/22 Lunch Receipt

Parent submits Student lunch receipt in the amount of $[REDACTED].

J 2/13/23 The [REDACTED] School Tuition Affidavit

Student 22-23 UP Tuition is set forth as: $[REDACTED].

Payment of $2,000.00 has been made, leaving a balance of $[REDACTED].

K 4/2/23 Meals Affidavit

Parent provides Affidavit that he expects to pay $[REDACTED] daily for Student meals, while at school, totaling an estimated $[REDACTED] for the 22-23 school year.

L 2022-2023 The [REDACTED] School Class Schedule

Student academic schedule.

M Undated The [REDACTED] School Program Description

General characteristics of the UP are detailed, which include:

- Provides a supportive, structured, nurturing, and fun environment in which students are encouraged to expand their knowledge and use their strengths while developing their reading, writing, math, social, and organizational skills; - Students learn to accept and understand their learning disabilities, become self-advocates, and take responsibility for their own learning; - Students learn in small group settings, which are designed to meet their individual needs; - We have highly qualified and trained teachers who specialize in methods to ensure student progress; - Our elementary school has a comprehensive program, which ensures both academic success and social and emotional growth. In addition to literacy and math instruction, the program includes science, art, performing arts, physical education, health education, library classes, technology integration classes, and a social skills curriculum. - Related services are provided to each student as is necessary; and - Our school psychologists, social workers, speech and language therapists, and occupational therapists work collaboratively with classroom teachers and administration using a push in and/or pull-out model.

N 2022-2023 The [REDACTED] School Mid-Year Report Card

UP Report Card details Student academics and related services, and includes goals, supports, and areas of progress for areas that include:

- Reading (Ex N 1-2) - Writing (Ex N 3) - Social Studies (Ex N 3) - Social Emotional Development (Ex N 4) - Science (Ex N 5) - Speech Language (Ex N 10

O 06/15/2022 Enrollment contract with cover letter and tuition information

Contract includes Tuition, for the 22-23 school year of: $[REDACTED]. (Ex O 1)

Parent is obligated to payment via signature upon the Contract. (Ex O 5 & 7)

FINDING OF FACTS AND DECISION

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

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

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

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

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

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

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

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

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

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

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

DOE offer of FAPE for the 21-22 and 22-23 School Years The DOE opted not to present a defense to the Parent’s allegations.

The district has presented no witnesses in this matter. An IEP was not submitted for either school year at issue.

Evidence is uncontested and presents areas of deficiency for each school year, particularly in Parent DPC and Student evaluations reflecting on the Student’s educational history. (Ex A, C & D)

Accordingly, I conclude that the district has not met its burden to establish that it provided a FAPE for the 21-22 school year and that the DOE failed to offer a FAPE 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 21-22 or 22-23 school years.

I find the DOE failed to offer the Student a FAPE for the 21-22 and 22-23 school years.

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 A, D, F, G, N & T 42-60 & T 62)

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, 22- 23 school year.

The DOE has denied a FAPE to the Student for the 22-23 school year.

Parent provides appropriate TDN, to the District. (Ex G & H)

Student 22-23 UP Tuition is set forth as: $[REDACTED]. (Ex J)

Payment of $[REDACTED] has been made, leaving a balance of $[REDACTED]. (Ex J)

Parent provides Testimony and Documentary Evidence showing an inability to pay the UP Tuition. (T 63)

Parent remains open to an appropriate DOE program and placement for the Student, and did not thwart any effort, of the DOE, to offer the Student a FAPE. (T 63)

With regard to fashioning equitable relief, one court has addressed whether it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so (Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). The court held that "[w]here . . . parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769 F. Supp. 2d at 428). The Mr. and Mrs. A. Court relied in part on dicta from earlier cases in which similar claims seeking direct retroactive payment to a private non-approved school were asserted (see Connors v. Mills, 34 F. Supp. 2d 795, 805-06 [N.D.N.Y. 1998] [opining that such financial disputes should be resolved within the administrative hearing process]; see also S.W., 646 F. Supp. 2d at 358-60). The Mr. and Mrs. A. Court held that in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs (Mr. and Mrs. A., 769 F. Supp.2d at 430).

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

TRANSPORTATION

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). In addition, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]).

Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 16035). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]).

Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

Parent seeks, as relief, door-to-door special transportation/suitable transportation to the UP. (Ex A 7)

Evidence is not provided regarding the Student need for special education transportation.

FUNDING FOR BREAKFAST AND LUNCH 19-20 SCHOOL YEAR

The United States District Court for the Southern District of New York found plaintiffs, parents of child placed in a non-public school, had stated a claim under Section 504 that failure to provide them with school meals because they were placed at private schools constituted illegal disability discrimination. [C.D. v. New York City Department of Education, No. 05 Civ. 7945, 2009 WL 400382 (S.D.N.Y. Feb. 11, 2009)].

The court emphasized that “[d]isabled students should not have to choose whether to learn or to eat, and the law does not require them to choose.” Id. at *7. The Court further found that reimbursement for the cost of meals could be a reasonable accommodation. Id. at *13.

Since the court’s decision in C.D., impartial hearing orders have, at times, required the DOE to reimburse parents of students with disabilities for the cost of breakfast and lunch when their children attend private school with DOE funding due to their disability.

Parent seeks Reimbursement for the cost of breakfast and lunch during school days as student would have been eligible to receive free breakfast and lunch had student attended public school during the 2022-2023 school year. (Ex A 7) Parent Testifies that the UP provides Student with lunch, paid for by the Parent, at a cost of $160-$170 dollars each month (T 62-63);

Parent submits Student lunch receipt in the amount of $1,458.71. (Ex I)

Parent provides Affidavit that he expects to pay $[REDACTED] daily for Student meals, while at school, totaling an estimated $[REDACTED] for the 22-23 school year. (Ex K)

Parent provides notice, via TDN, of intent to seek funding for Student meals. (Ex G 3)

I find the Parent is entitled to reimbursement for the cost of meals provided to the Student, which otherwise would have been provided at no cost, if the DOE had offered a FAPE, for the 22-23 school year.

ORDER

1. The Department of Education (DOE) failed to offer the Student a FAPE for the 21-22 and 22-23 school years.

2. The DOE fund Student, 22-23, Tuition, for attendance at The [REDACTED] School (UP), up to the amount of $[REDACTED], as follows:

o $[REDACTED] reimbursement to Parent; and o $[REDACTED] directly to The [REDACTED] School (UP).

3. The DOE shall reimburse Parent to actual cost of Student meals, provided at the UP, for the 22-23 school year, up to the amount of: $[REDACTED], or $[REDACTED] daily, whichever amount is verified via receipts, to be provided by the Parent.

4. 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.

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

DATED: 05/16/2023

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.