New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 596252 - NYC: 245838

FINDINGS OF FACT AND DECISION

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 03/23/2023

03/31/2023

04/24/2023

05/19/2023

Actual Record Close Date: 06/13/2023

Decision Date: 06/14/2023

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/23/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/31/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], ESQ., Attorney

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

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

For the Department of Education:

[REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 05/19/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

[REDACTED], Director, [REDACTED]

Elementary School

[REDACTED], Licensed Behavior Analyst

For the Department of Education:

[REDACTED], ESQ., Attorney

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

Exhibit Date Title Page(s) Entered 03/23/2023 A 02/10/2023 Impartial Hearing Request/Due Process Complaint (DPC) 3 B 10/07/2023 Letter to CPSE Chairperson (w. email confirmation) 2 C 01/06/2023 Ten-Day Notice Letter (w. email confirmation) 3 D 07/25/2022 Occupational Therapy Evaluation 4 E 06/08/2022 Psychological Evaluation 12 F 07/13/2022 Psychological Evaluation 6 G 07/08/2022 Social Evaluation 4 H 07/22/2022 Physical Therapy Evaluation 4 I 07/25/2022 Speech Evaluation 5 J 10/26/2022 Occupational Therapy Progress Note 6 K 12/01/2022 Early Intervention Progress Note 7 L 2022-2023 Attendance 1 M 2022-2023 Enrollment Contract 7 N 03/16/2023 Tuition Affidavit of Payment 1 O Undated [REDACTED] Program Description 3 Entered 04/24/2023 P 2022-2023 Daily Schedule 2 Q 02/12/2023 Occupational Therapy Progress Report 2 R 03/30/2023 Occupational Therapy Sensory Processing Measure 5 S 03/20/2023 Educational Progress Report 9 T 04/18/2023 Physical Therapy Progress Report 2 U 2021 U.S. Individual Income Tax Return 3 Entered 05/19/2023 V 04/17/2023 Speech-Language Therapy Progress Report 3 W 04/18/2023 Physical Therapy Progress Report 2 X 03/29/2023 Pragmatics Checklist 2 Y 01/10/2023 Autism Checklist 2 Z 2022-2023 List of Staff & Credentials 11 AA 2022-2023 [REDACTED] Curriculums 3 BB Jan.-Apr 2023 ABA Summaries 5 CC 2022-2023 Behavior Intervention Program 18 DD 2022-2023 Related Services Schedule 1

DEPARTMENT OF EDUCATION (DOE)

Entered 05/19/2023

Number Document Date Page(s)

1 DUPLICATE

2 DUPLICATE

3 DUPLICATE

4 DUPLICATE

5 DUPLICATE

6 DUPLICATE

7 DUPLICATE

8 DUPLICATE

9 DUPLICATE

10 DUPLICATE

11 DUPLICATE

12 DUPLICATE

13 IRRELEVANT

14 [REDACTED] – WEBPAGE None 6

15 WITHDRAWN

16 DUPLICATE

17 IRRELEVANT

IMPARTIAL HEARING OFFICER

Entered 03/23/20232 I Notice of Appointment, 02/13/2023, 4 pages Entered 04/24/2023 III Response Letter to Subpoena, 04/19/2023, 3 pages Entered 05/19/2023 II Subpoena, 03/31/2023, 3 pages Entered 06/12/2023 IV DOE Closing Brief, 06/12/2023, 13 pages V Parent Closing Brief, 06/12/2023, 11 pages

INTRODUCTION

On 02/13/2023, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Hearing commenced, on 03/23/2023, to allow an opportunity for the DOE to defend against the allegations contained in the DPC. (Ex A)

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

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

Allegations include:

- Student characteristics and challenges: “…[REDACTED] old child who is classified as a preschooler with a disability. [REDACTED] is diagnosed with autism and global developmental delays. He exhibits significant cognitive, language, communication and social interaction delays. [REDACTED] also engages in restricted repetitive patterns of behaviors. He does not consistently respond to his name, exhibits poor eye contact, does not play with toys appropriately, is at times, unaware of objects or his surroundings. [REDACTED] also presents with poor balance, low muscle tone, and toe walks. He has significant gross motor delays, sensory processing delays and fine motor deficits.” (Ex A 1); - Student began receiving special education services via the New York City’s Department of Health Early Intervention (EI) where he was recommended for special instruction, speech therapy, and occupational therapy services. (Ex A 1); - On August 2, 2022, the Committee on Preschool Special Education (CPSE) convened for Student entrance into a preschool setting. Recommendation was made for: 2.5 hours per week of Special Education Itinerant Teacher Services (2:1), Speech-Language Therapy (3x30, 2:1), Occupational Therapy (2x30, 1:1), Physical Therapy (2x30, 1:1) and Parent Counseling and Training 4x/ annually. (Ex A 2); - IEP was intended to be in effect on 01/01/2023 (Ex A 2); - Parent alleges the IEP is not appropriate, in part, due to inadequate services, a failure to address Student’s social/emotional and academics management needs, and a failure to provide a recommendation of peer-reviewed research-based teaching instruction such as (but not limited) ABA services (Ex A 2); - In October 2022, Student’s Parent contacted the CPSE requesting a reconvene for consideration of a center-based self-contained special class and appropriate public-school placement as she did not agree with the recommendations contained in the August 2022 IEP.; - On December 19, 2022, the CPSE reconvened and upon information and belief, recommended an integrated class, along with Speech Therapy, Occupational Therapy, Physical Therapy, and Parent Counseling and Training services. As of today, the CPSE has failed to provide the parent with a copy of the December 2022 IEP. Thus, the district has denied the parent meaningful participation as it failed provide the parent with an opportunity to fully consider all the recommendations and services contained in the December 2022 IEP. (Ex A 2); - On December 19, 2022, Parent received a Final Notice of Recommendation recommending a Special Class Integrated Setting to be implemented at P.S. [REDACTED]. The Final Notice of Recommendation further recommends Speech and Language Therapy (3x30, 2:1), Occupational Therapy (2x30, 1:1), Physical Therapy (2x30, 1:1), and Parent Training and Counseling (4x/annually). P.S. [REDACTED] is inappropriate and insufficient, as it cannot meet [Student’s] needs and cannot implement the recommended services. - The proposed class has a maximum capacity of 9 general education students and 6 students with IEPs. The proposed class is too large and will not provide [Student] with the level of small group and 1:1 instruction he requires. The proposed class does not provide small group instruction. The proposed program cannot implement the recommended speech therapy and occupational therapy services as they do not have therapists. P.S. [REDACTED] does not provide parent training and counseling services (PCAT) and thus, cannot implement the recommended parent training and counseling services. The proposed program was also uncertain whether they would be able to provide the recommended physical therapy services. P.S. [REDACTED] also does not utilize ABA based instruction nor do they have adequate sensory tools or equipment. P.S. [REDACTED] does not utilize any formal social skills curriculum which [Student] requires.; and - On January 6, 2023, Parent, through their attorney, contacted the district indicating their concerns the CPSE’s recommendations and P.S. [REDACTED]. As of today, the district has failed to adequately address these concerns. (Ex A 3)

Parent seeks relief in the form of: Funding/reimbursement for unilateral placement at the [REDACTED] Preschool (Unilateral Placement/UP) in the absence of a procedurally valid and substantively appropriate IEP and placement recommendation in a timely manner for the 2022-2023 school year; and a declaratory finding that the district failed to provide [Student] with a free and appropriate public education for the 2022-2023 school year. (Ex A 3)

JURISDICTION

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

THE POSITION OF EACH PARTY

The DOE did not defend any offer of a Free Appropriate Public Education (FAPE), for the Student, for the 22-23 school year. (T 8)

The DOE Attorney did submit a Subpoena regarding the matter, which was issued by the IHO. (T 8, 12-13, IHO Ex II)

Parent Attorney clarified that only a half year of UP Tuition is being sought, since Student began attending in January, of 2023 (T 8); and the school is new, having previously served as a related service provider. (T 9)

Hearing was conducted, on 03/31/2023, to review a proposed DOE Subpoena.

Discussions were held, on the Record, and Subpoena issued. (IHO Ex II)

At Hearing, of 04/24/2023, the Subpoena, the Status of a response, and each Parties’ position regarding document disclosure, was discussed at length. (T 56-89)

Hearing continued, and concluded, on 05/19/2023.

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

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

- A review of qualifications (T 124-125); - [REDACTED] [REDACTED] is a school, and is also a separate ABA agency, [REDACTED] ABA (T 124); - The UP is a “special education preschool servicing children from the ages of 3 to 5 based on ABA, providing more related services, and really focusing on skill building, functional skill building, intensive early intervention, and a holistic approach that provides…guidance to the parents, a lot of team meetings between the providers, and all the related service providers collaborating with the classroom teacher, as well as the behavior analyst collaborating with the classroom teacher and related service providers. So it's very collaborative and holistic and everyone's…working together on these skills.” (T 125-126); - The UP opened in September of 2022 (T 126); - Board Certified Behavior Analysts (BCBAs) are employed: - A BCBA “develops curriculums and programs together with the teacher. She focuses a lot on the individualized programing for each student. She conducts assessments, FBAs, and behavior intervention plans. She modifies lessons as needed to tailor students' specific needs, and she provides guidance and training.” (T 126); - The UP provides Occupational Therapy (OT), Speech Language Therapy (SLT), and Physical Therapy (PT) (T 127); - Familiarity with the Student, who attends the UP (T 127); - Student class has: four students, a teacher, an assistant, a BCBA, oftentimes a related service provider in the room, and behavior techs in the room. “So at minimum…it's two-to-four, but often it's one-to-one or even more than that.” (T 127); - A review of Student staff credentials (T 128-129, 132-133); - Student receives OT, PT and ST (T 129); - Student Tuition, for half a year, is $[REDACTED], inclusive of related services (T 130-131 & 163); - UP Tuition includes: “all the employees' salary, the teacher, the behavior analyst, the occupational therapist, the speech therapist, the physical therapist, all the -- the rent, all the administrative expenses, supplies, all the costs of running a school.” (T 165); - All students, at the UP, are diagnosed with developmental disabilities and classified as needing special education (T 132); - Data is collected during ABA/discrete trial; training (T 136-137); - An overview of the ABA data was provided, in response to the Subpoena received by the UP (T 142-143, IHO Ex II); - Student receives services, at home and at school, from the related service agency, such as a paraprofessional, behavior techs and ABA services (T 147-149); and - The agency ABA services, and behavior tech, are covered via insurance (T 150).

[REDACTED], Licensed Behavior Analyst

Witness, Licensed Behavior Analyst, at the UP, provided Testimony that included:

- Qualifications (T 170); - Duties and responsibilities, at the UP (T 170-171); - How ABA is incorporated into the UP program (T 171-175); - Familiarity with the Student; - Being part of the initial screening process which accepted the Student (T 176-177); - Description of the Student when he began attending the UP, noting challenges and delays in areas of academics, transitions, communication, motor skills, and ADL skills (T 177-181); - Regarding Student pre-academic skills: focus was on attention and focusing skill, with supports that included prompts to start work, positive reinforcement, digital schedule, ABA methodology, and very clear and direct instruction (T 182) - Additional Student supports include: focus on imitation, Discrete Trial trainings (DTT), functional play, prompts, visuals, positive reinforcement, verbal imitation, hand over hand, one-on-one, social groups (T 182-184), eye contact, transitions taught as different steps (T 184), everything is broken down for a reason, and every step. is “very, very important. And we can't skip steps because then it's going to just create a lot of negative behaviors.” (T 185), intraverbals, meaning, filling in the blank (T 186), expressive and receptive labeling (T 187), functional communication (T 188), and picture exchange form called TABS (T 188); - Student is noted to have made progress academically, socially and with ADL skills (T 189-192); - The UP is appropriate for the Student, which provides ABA, reinforcement, prompts, and generalization (T 193-195); and - Witness works with the Student one-on-one once weekly (T 196).

[REDACTED], Parent

Witness provided Testimony that included:

- Student began receiving services in August of 2021, due to not meeting his milestones (T 202-203); - Student has been diagnosed with Autism (T 203); - In August, 0f 2022, meeting with the Committee on Pre-School Special Education (CPSE), which made recommendations, to which the Parent disagreed (T 204); - In October 2022, Parent asked for another meeting (T 204); - The DOE recommended a school placement, which the Parent visited (T 205); - Witness saw the classroom and met teachers; - Parent believes the class was way too big, and it did not have the needed constant supports (T 205); - Attorney sent a letter to the DOE detailing her concerns (T 205-206, Ex C); - Student attended the UP, for the 22-23 school year, and has made progress (T 206-207); and - No payments have ben made towards the UP Tuition: “I'm not financially able to at this point…” (T 208)

A 02/10/2023 Impartial Hearing Request/Due Process Complaint (DPC)

Details allegations of a denial of FAPE, and sought after relief.

B 10/07/2023 Letter to CPSE Chairperson (w. email confirmation)

Parent communicates with the DOE, regarding the 22-23 school year, and his related educational placement.

Parent acknowledges the DOE created an IEP, on 08/02/2022, which recommended: Special Education Itinerant Teacher Services (SEIT) 2.5 hours per week, 2:1, Speech Therapy 3x30, 2:1, Occupational Therapy 2x30, 1:1, Physical Therapy 2x30, 1:1, and Parent Counseling and Training 4 times a year, on a 10-month basis.

Parent notes the IEP was to go into effect in January 2023.

Parent advised the DOE that she disagrees with the IEP and its recommendations, believing the services will not be sufficient to address the Student’s full range of needs.

Parent requested that the CPSE reconvene to consider and recommend a special class in a center-based program and an appropriate placement as soon as possible before Student’s eligibility for CPSE services began, in January 2023.

Parent adds that if the CPSE believes any additional assessments are necessary, please consider this letter as consent to conduct those evaluations but let me know what will be conducted beforehand

C 01/06/2023 Ten-Day Notice Letter (w. email confirmation)

Parent, via Attorney, notifies the DOE: of disagreement with the recent IEP recommendations; Parent has visited the recommended DOE placement and believes it cannot implement the Student’s OT and SLT services, and does not provide PCT and Counseling services; and Parent will enroll the Student at the UP and seek DOE funding.

D 07/25/2022 Occupational Therapy Evaluation

Details result of Student evaluation and areas of delay.

E 06/08/2022 Psychological Evaluation

Evaluator includes professional opinion that:

- Student presents “delays (>33%) in the areas of cognition, communication, problem solving, and personal-social skills. He presents delays in daily living tasks (>25%), as per parent’s report. Child presents with significant delays in social emotional/play skills (33%).” (Ex E 11) - Student diagnoses include: Autism Spectrum Disorder (F84.0) and Global Developmental Delays (F88). (Ex E 11) - Student “would strongly benefit from a comprehensive therapeutic intervention program at this time so that he can have an opportunity to learn and interact appropriately with children and adults” (Ex E 11) - Recommendations include: a systematic behavioral approach (ABA) and Family Training. (Ex E 11)

F 07/13/2022 Psychological Evaluation

Evaluation includes that the Student: “…showed uneven development in his verbal comprehension and visual spatial skills. He presented with even working memory abilities. [Student] is struggling with his communication and interpersonal skills. He is having difficulty with his gross and fine motor skills as well. Delays are adversely affecting his classroom functioning and performance. Based on the results of [Student’s] testing, further evaluations in speech and language development, gross and fine motor function are recommended.” (Ex F 6)

G 07/08/2022 Social Evaluation

Details Parent concerns and notes Student delays, including ADL skills, and calls for additional evaluations to determine the need for services.

H 07/22/2022 Physical Therapy Evaluation

Details Student delays with Gross Motor Skill acquisition.

I 07/25/2022 Speech Evaluation

Details Student areas of delay, and recommends results of testing be reviewed at the CPSE. (Ex I 5)

J 10/26/2022 Occupational Therapy Progress Note

Notes Student progress with OT services.

K 12/01/2022 Early Intervention Progress Note

Notes Student progress with SLT services.

L 2022-2023 Attendance

Student evidenced to be attending the UP, since annuary 2023, for the 22-23 school year.

M 2022-2023 Enrollment Contract

Evidences Student full year Tuition, for attendance at the UP, as $[REDACTED]. (Ex M 1)

Parents are obligated to payment of the Contract via Signature. (Ex M 7) N 03/16/2023 Tuition Affidavit of Payment Affidavit confirms the Parents are obligated to payment of the Student’s $[REDACTED] Tuition, for Attendance from January 2, 2023.

O Undated [REDACTED] Program Description

General characteristics of the UP are set forth, including:

- Developmentally appropriate preschool; - Personalized ABA therapy and related services; - Ages three through five; - Provides guidance, support, and meaningful social interactions to enable students to learn (Ex O 1); - Program uses a holistic and transdisciplinary approach; - Curriculum designed by BCBAs; - Teachers work with therapists to design individualized programs for each student; - Intensive behavioral intervention, which includes 1:1 ABA program time, and therapeutically designed social groups, centers and activities; - An OT department; and - Special Education teachers, Behavior Analysts, Occupational Therapists, Physical Therapists, Speech and Language Therapists, and Family Guidance. (Ex O 2)

P 2022-2023 Daily Schedule

Student academic and related service schedule.

Q 02/12/2023 Occupational Therapy Progress Report

Details Student areas of delay, and sets forth goals.

R 03/30/2023 Occupational Therapy Sensory Processing Measure

Sets forth areas of sensory dysfunction. S 03/20/2023 Educational Progress Report

Details Student program, at the UP, which includes: individualized instruction, trained professionals including BCBAs, related service providers, and 1:1 direct care. (Ex S 1)

Notes areas of Student delay and progress, in areas of:

- Cognitive/Academic Skills (Ex S 1 & 3-4) - Communication Expressive/Receptive Language (Ex S 1) - Social/Emotional/Behavioral (Ex S 1-2 & S 4) - Motor Skills (Ex S 2 & S 4) - Fine Motor (Ex S 2 & S 4) - ADL Skills (Ex S 2 & S 5) Report concludes that Student: - Presents with cognitive/academic, communication expressive/receptive language, social/emotional/behavioral, and motor deficits, and ADL (Ex S 5); - Services and supports include: skills need to be broken down into small steps and generalized across different environment; ABA; self contained program; 1:1 instruction; comprehensive therapy program; and staff working together to incorporate all goals during therapy sessions throughout the day. (Ex S 5) - student has made slow and steady progress. (Ex S 5) Language, Social, Cognitive, Motor, and ADL goals are set forth. (Ex S 5-9)

T 04/18/2023 Physical Therapy Progress Report Student areas of delay are set forth, along with goals, and recommendation to continue PT services, for the Student.

U 2021 U.S. Individual Income Tax Return

Parent 2021 gross income is evidenced to be $49,781.00. (Ex U 1)

V 04/17/2023 Speech-Language Therapy Progress Report Student areas of delay are set forth, along with goals, and recommendation to continue SLT services, for the Student.

W 04/18/2023 Physical Therapy Progress Report Student aeras of delay are set forth, along with goals, and recommendation to continue PT services, for the Student.

Note: This is a duplicate of Exhibit T)

X 03/29/2023 Pragmatics Checklist

Sets forth Student Social Communication Skills.

Y 01/10/2023 Autism Checklist

Student scores related to Autism checklist.

Z 2022-2023 List of Staff & Credentials

Details credentials of Staff delivering services, to the Student.

AA 2022-2023 [REDACTED] Curriculums

Details curriculum utilized a the UP.

BB Jan.-Apr 2023 ABA Summaries

Summaries of Student ABA data, related to Student goals.

CC 2022-2023 Behavior Intervention Program

Details Student Behavior Intervention Plan (BIP).

DD 2022-2023 Related Services Schedule

Sets forth Student related services schedule.

Each Party presented arguments via Closing Brief.

IV DOE Closing Brief, 06/12/2023

The DOE argues that the Parents failed to meet their prong two burden.

The DOE argues that: the Parent deliberately concealed information which would have likely resulted in a reduction or denial of the School’s Tuition; and the UP Witnesses could not explain which UP services were paid via insurance. (IHO Ex IV 2)

Witness did state that agency ABA services (at home), and behavior tech (at school), are covered via insurance. (T 149-150)

To the extent it may not be clear, if indeed there is some portion of the Tuition that is paid via insurance, the UP would not be entitled to be paid for that service from the DOE.

The DOE seeks a negative inference to be inferred from the alleged lack of response to the Subpoena. (IHO Ex IV 2-4, IHO Ex II)

The DOE argues that the UP Witness confirmed a refusal to provide information as directed by the Subpoena. The Witness actually stated that she believed the Subpoena was complied with. (T 143-144)

As set forth above the UP presented a variety of documents which viewed as a whole support the Parent case and reflect the services delivered by the UP.

The DOE argues the evidence fails to support the UP as an appropriate Student placement. (IHO Ex IV 6-7)

The evidence, as reviewed above, does support the UP as an appropriate Student placement. Evidence sets forth areas of Student special education need, services to address those needs, and notes progress.

V Parent Closing Brief, 06/12/2023

Parent Attorney reviews evidence which confirms the Student need for special education services. (IHO Ex V 1)

Parent Attorney argues that the DOE failed to evidence an offer of a FAPE for the 22-23 school year. (IHO Ex V 2)

Parent Attorney contends that the evidence detailing the services and supports delivered, by the UP, to the Student, for the 22-23 school year, show the program is indeed appropriate. (IHO Ex V 3-6)

Parent Attorney argues equities weigh in favor of the Parent who has cooperated throughout the CPSE/IEP process. (IHO Ex V 6-8)

Parent Attorney argues that a negative inference should not be drawn from the alleged deficient UP response to the Subpoena. Parent Attorney argues that the UP provided an adequate response to the Subpoena, which included correspondence from the UP’s attorney. (IHO Ex V 8-10 & IHO Ex III)

Ultimately I find the UP responded appropriately to the Subpoena, providing documents related to the Student and the UP program, as entered into evidence.

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 22-23 School Year

The DOE opted not to present a defense to the Parent’s allegations.

The DOE has not evidenced development of an appropriate IEP for the commencement of the 22-23 school year.

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

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

UP Placement for the 22-23 School Year

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

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

Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex D, E, F, G, H, I, J, K, O, Q, R, S, T, V, W, X, Y, Z, AA, BB, CC, DD and T 124-129, 132-133, 136-137, 171-175, 182, 185-188, 189-192, 196, , 203, 206-207)

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, 22Parent 2021 gross income is evidenced to be $[REDACTED]. (Ex U 1)

Parent Testimony is uncontroverted that no payments have been made towards the UP Tuition, due to financial inability (T 208)

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 Student placement, at the UP, without any appropriate DOE alternative.

Parent provides information relative to their financial capability. (Ex U)

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

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

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

ORDER

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

2. [REDACTED] [REDACTED] (UP), provides Student with an appropriate program and placement, for the 22-23 school year.

3. The DOE shall directly fund Student, Tuition, for attendance at [REDACTED] [REDACTED] LLC (UP), in the amount of $[REDACTED].

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: 06/14/2023

DANIEL AJELLO

DANIEL AJELLO

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

Footnotes

[23] school year. The DOE has denied a FAPE to the Student for the 22-23 school year. Student is evidenced to be attending the UP. (Ex L) Student full year Tuition, for attendance at the UP, is evidenced as $[REDACTED]. (Ex M 1) Parents are obligated to payment of the Contract via Signature. (Ex M 7) Affidavit confirms the Parents are obligated to payment of the Student’s $[REDACTED] Tuition, for Attendance from January 2, 2023. (Ex N)