New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 597393 – NYC: 246720

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

School District: REDACTED

Impartial Hearing Officer: Ginger James

Date of Filing: March 15, 2023

Hearing Requested By: Parent

Date of Hearing: July 12, 2023

Record Close Date: July 28, 2023

Date of Decision: August 11, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 17, 2023

For the Student:

REDACTED, Esq., Parent’s Attorney

For the Department of Education:

REDACTED, District Representative #1

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 16, 2023

For the Student:

REDACTED, Esq., Parent’s Attorney

For the Department of Education:

REDACTED, District Representative #2

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 13, 2023

For the Student:

REDACTED, Esq., Parent’s Attorney

For the Department of Education:

REDACTED, Esq., District Representative #3

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 30, 2023

For the Student:

REDACTED, Esq., Parent’s Attorney

For the Department of Education:

REDACTED, Esq., District Representative #3

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 12, 2023

For the Student:

REDACTED, Esq., Parent’s Attorney

REDACTED, Parent Student

REDACTED, Program Director of Private School

For the Department of Education:

REDACTED, Esq., District Representative #3

INTRODUCTION

On March 15, 2023, Parent1 filed a Due Process Complaint (“DPC”) against the New York City Department of Education (“DOE” or “the District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), the New York State Special Education Regulations, Section 504 of the Rehabilitation Act (“Section 504”), and the Americans with Disabilities Act (“ADA”) alleging that the DOE failed to offer Student a free appropriate public education (“FAPE”) for the 12-month 2022-2023 school year (Ex. A). Parent alleges, inter alia, that the Committee on Special Education (“CSE”) failed to: 1) incorporate the program recommendation of the most recent private neuropsychological evaluation and therefore had no data upon which to make its recommendations; 2) complete a Functional Behavior Analysis (“FBA”) and develop an adequate Behavior Intervention Plan (“BIP”); 3) recommend an appropriate special education program to address Student’s numerous challenges; 4) consider the continuum of available special education programs, including by predetermining the outcome of the Individualized Education Program (“IEP”) meeting and not considering a State-approved nonpublic school (“NPS”); 5) recommend a placement; and 6) provide any funding for school meals during Student’s attendance at Private School (Ex. A-7-8). In addition to their allegations regarding the denial of a FAPE, Parent asserts that Private School is an appropriate placement for Student and that equities support their claim for tuition reimbursement for the school year at issue (Ex. A-7).

By way of relief, Parent seeks: a declaration of the denial of a FAPE for the 2022-2023 school year; a finding that the violations committed by the District significantly impeded Parent’s procedural and substantive rights; an award of tuition reimbursement/direct funding for Student’s attendance at Private School during the 12-month 2022-2023 school year; a declaration that Student is entitled to appropriate door-to-door transportation to and from Private School; any other relief deemed appropriate in this matter; and an award of attorney’s fees and expenses (Ex. A-9-

1 No personal identifying information is contained within the body of this Findings of Fact and Decision (“FOFD”). For personal identifying information, please refer to the attached Appendix. Further, this FOFD contains no references to the gender binary. The pronoun “they” is used as needed. 10; SC #3 Tr. dated 6/30/2023 pp. 39-41; Tr. dated 7/12/2023 pp. 9, 21, 45-47).2, 3 In light of the foregoing and as more fully discussed below, I find that: the District failed to meet its burden to prove that it offered Student a FAPE for the 12-month 2022-2023 school year; Private School offers Student specially designed instruction sufficient to meet Student’s needs; and the equities support Parent’s requested relief.

PROCEDURAL HISTORY AND BACKGROUND

As of March 15, 2023, the date of the filing of the DPC, Student was [REDACTED] years old and attending Private School (Ex. M-1, 2; Ex. A-2; Ex. C-1). Student is classified as a Student with Autism (Ex. M-2; Ex. A-1; Ex. C-1, 35). That classification is not in dispute. Due to Student’s disabilities, they are in an ungraded setting (Ex. N-3; Tr. dated 7/12/2023 pp. 30-31).

After the filing, the Resolution Period began. It ended on April 14, 2023 with no formal meeting held (PHC Tr. dated 4/17/2023 p. 5).

On March 17, 2023, I was appointed Impartial Hearing Officer (“IHO”) for this case.

2 Parent also had invoked pendency which was resolved by agreement prior to my appointment (Ex. A-8-9; PHC Tr. dated 4/17/2023 p. 9). Regarding transportation, Parent initially requested an order directing the DOE to provide Student with appropriate bus transportation to and from Private School and reimbursement for any out-of-pocket transportation costs due to the District’s failure to provide bus transportation (Ex. A-9-10). As the school year had ended by the time the hearing was conducted, Parent’s Attorney modified the request to seek a declaration of entitlement to special education transportation only (SC #3 Tr. dated 6/30/2023 p. 41; Tr. dated 7/12/2023 pp. 9, 46). Parent also had sought an order for reimbursement for meal expenditures pursuant to Section 504 (Ex. A-10). However, Parent’s Attorney later withdrew that request (SC #3 Tr. dated 6/30/2023 p. 40; Tr. dated 7/12/2023 p. 9).

3 Between appearances in this matter, OATH engaged transcription services from a different provider. Accordingly, the full transcript is not consecutively paginated. References to the transcript from the Pre-Hearing Conference conducted on April 17, 2023 are denoted “PHC Tr. dated 5/17/2023 p.” References to the transcript from the Status Conferences conducted on May 16, 2023, June 13, 2023 and June 30, 2023 are denoted “SC #1 Tr. dated 5/16/2023 p.,” “SC #2 Tr. dated 6/13/2023 p.,” and “SC #3 Tr. dated 6/30/2023 p.,” respectively. References to the transcript from the Due Process Hearing conducted on July 12, 2023 are denoted “Tr. dated 7/12/2023 p.” On April 17, 2023, Parent’s Attorney and District Representative #1 met with an OATH Settlement Officer for a Settlement Conference and thereafter met with me for a Pre-Hearing Conference (“PHC”).^[4] As Parent’s Attorney and District Representative #1 were interested in the possibility of settlement, I scheduled a Status Conference for May 16, 2023, with the understanding that I would conduct an actual PHC if settlement negotiations had not progressed (PHC Tr. dated 4/17/2023 pp. 5-8).

On May 16, 2023, Parent’s Attorney and District Representative #2 appeared before me for the Status Conference. The District was awaiting information regarding the possibility of settlement, and I granted a joint request to extend the compliance date (SC #1 Tr. dated 5/16/2023 pp. 16-19). I scheduled another Status Conference for June 13, 2023, again with the understanding that I would conduct a PHC, if needed (SC #1 Tr. dated 5/16/2023 pp. 19-21).

On June 13, 2023, Parent’s Attorney and District Representative #3 (“the Parties”) appeared before me for the second Status Conference. The District was still awaiting information regarding settlement (SC #2 Tr. dated 6/13/2023 pp. 27-28). I granted a joint request to extend the compliance date, and scheduled a Status Conference for June 30, 2023 and a Due Process Hearing (“DPH”) for July 12, 2023 (SC #2 Tr. dated 6/13/2023 pp. 28-34).

On June 30, 2023, the Parties appeared before me for an update on settlement and to discuss issues related to the DPH. The District was again unable to extend a settlement offer to Parent, and I declined to entertain an application to extend the compliance date again (SC #3 Tr. dated 6/30/2023 pp. 38-39). In discussing the issues to be addressed and remedies sought, Parent’s Attorney withdrew Parent’s request for meal reimbursement (SC #3 Tr. dated 6/30/2023 p. 40). Further, because the school year had concluded, they modified their transportation request to a declaration that Student is entitled to special education transportation (SC #3 Tr. dated 6/30/2023 p. 41). Regarding the burdens of proof, District Representative #3 “believe[d] that this would strictly be a prong two case of the District,” but would confirm in advance of the hearing whether they would be presenting witnesses (SC #3 Tr. dated 6/30/2023 p. 42).^[5]

On July 12, 2023, the DPH commenced. After addressing the issues and remedies sought, we discussed the burdens of proof (Tr. dated 7/12/2023 pp. 8-10). District Representative #3 stated that they would “not be presenting any witnesses as far as a Prong I case today” (Tr. dated 7/12/2023 p. 10). Regarding whether they were conceding Prong 1, they continued, “[n]o, I would rely on the documents provided. Not outright conceding it, but will not be presenting witnesses or putting on a case as far as timeline [sic] is concerned” (Tr. dated 7/12/2023 p. 10). District Representative #3 withdrew their proposed Exhibit 1 as it pertained to a different matter (Tr. dated 7/12/2023 p. 11). They sought to introduce Exhibits 2 through 4, but as Exhibits 2 and 3 were duplicates of Parent’s exhibits, I explained that I would refer to Parent’s exhibits in my decision (Tr. dated 7/12/2023 pp. 11-12). Parent’s Attorney objected to Exhibit 4 being labeled “Prior Notice Package for Placement” as there was no School Location Letter (“SLL”) attached to it, and in light of their claim that the District never offered Student a school location (Tr. dated 7/12/2023 pp. 12-13). District Representative #3 agreed to strike the words “for Placement” from the title, and as there were no other objections, I admitted Exhibits 2, 3 and 4 into evidence (Tr. dated 7/12/2023 pp. 12-14). Parent’s Attorney sought to introduce Exhibits A through J and L through N,^[6] which included affidavits from Parent and Program Director for Private School (“Program Director”) (Tr. dated 7/12/2023 pp. 14-17; Ex. M; Ex. N). District Representative #3 raised no objection to their introduction, and I admitted all exhibits into evidence (Tr. dated 7/12/2023 pp. 17-18). District Representative #3 declined to present witnesses (Tr. dated 7/12/2023 pp. 10, 19). District Representative #3 presented an opening statement (Tr. dated 7/12/2023 p. 20), followed by Parent’s Attorney (Tr. dated 7/12/2023 pp. 20-26). Program Director testified through the written direct testimony (Ex. N), and live questioning (Tr. dated 7/12/2023 pp. 26-43). Neither District Representative #3 nor I had questions for Parent (Tr. dated 7/12/2023 pp. 19, 44). District Representative #3 waived their opportunity to present a closing statement (Tr. dated 7/12/2023 p. 45). Parent’s Attorney did not present a formal closing statement, but reiterated the requested relief (Tr. dated 7/12/2023 pp. 45-46).

FINDINGS OF FACT

My findings of fact as explained below were made after considering all the admitted evidence as well as affidavit and live testimony from Program Director and affidavit testimony from Parent. I found both witnesses credible.

Background

Student has been diagnosed with Autism and is nonverbal and highly self-directed (Ex. M-2; Ex. A-2; Ex. C-1, 35). Additionally, Student is sensory seeking and lacks safety awareness (Ex M-2; Ex. A-2). Student requires constant adult supervision for safety reasons, to assist with toileting and feeding, to help them stay regulated and to keep them active and engaged (Ex. M-2; Ex. A-2). Student also has deficient oral motor skill development (Ex. A-2). Student’s Autism “impacts [their] cognitive, academic and functional skills across settings” (Ex. C-10).

Previously, Student received services through the Committee on Preschool Education (“CPSE”), which had recommended a 12:1+3 classroom (Ex. M-2; Ex. A-2). For the transition to kindergarten for the 2017-2018 school year, the CSE recommended a 6:1+1 program in a District 75 school (Ex. M-2; Ex. A-2). The actual school the District recommended had neither a spot for Student nor the ability to implement the IEP (Ex. A-2). Parent enrolled Student in Private School and filed a DPC seeking funding (Ex. M-2; Ex. A-2). Parent prevailed in that matter (Ex. M-2-3; Ex. A-2-3). For each of the next few school years (2018-2019, 2019-2020, 2020-2021 and 2021-2022), the DOE failed to develop a timely IEP, failed to offer Student a placement in advance of the school year, failed to offer any placement to Student and/or recommended the same 6:1+1 program in a District 75 school (Ex. M-3-4; Ex. A-3-5). For each of those years, Parent re-enrolled Student in Private School and filed DPCs which resulted in settlement or an award in Parent’s favor (Ex. M-3-4; Ex. A-3-5). The IEP and the 2022-2023 School Year On May 18, 2022, the CSE convened to conduct an annual review (Ex. M-2, 5; A-5 Ex C-34, 37). Parent, Lead Teacher at Private School and Social Worker from Private School attended the meeting (Ex. M-5; Ex. A-6; Ex. C-35).

The DOE did not conduct any updated evaluations of Student, but relied on a Neuropsychological Evaluation conducted in April 2021 as memorialized in a report dated May or June 2021 (“the 2021 Neuropsychological Evaluation”) (Ex. M-5; Ex. A-5; Ex. C-1). The doctor who created that report (“Private Psychologist”) confirmed Student’s diagnosis of Autism with accompanying language and intellectual impairment (Ex. M-4; Ex. A-5-6; Ex. C-1). The DOE also relied heavily upon progress reports from Private School and information from Lead Teacher and Parent (Ex. M-5; Ex. A-6; Ex. C-1-9). Parent and Private School provided very detailed information about Student’s challenges and needs in areas ranging from Literacy to Math to ADL skills, as well as needs being addressed through Occupational Therapy (“OT”), Speech Language Therapy (“SLT”) and Physical Therapy (“PT”) (Ex. C-1-9). Student’s Reading and Math instructional levels were at pre-kindergarten levels (Ex. C-34).

Ultimately, the CSE did not adopt Private Psychologist’s recommendation that Student be placed in a “specialized non-public or private school program that is designed to meet the unique needs of children with autism who have complex behavioral and learning challenges” (Ex. M-4; Ex. A-5-6). They also did not adopt Private School’s programming recommendations (Ex. M-5; Ex. A-6). The CSE continued to classify Student as a student with Autism and recommended 12-month extended school year (“ESY”) programming in a District 75 school with a 6:1+1 program in a public school (Ex. M-2, 5; Ex. A-1-2, 6; Ex. C-1, 29, 30, 35). The CSE also recommended: Adaptive Physical Education three periods per week; SLT individually two times per week and in a group one time per week for 30 minutes; OT individually two times per week and in a group one time per week for 30 minutes; PT individually two times per week for 30 minutes; a paraprofessional for behavior support; and Parent Counseling and Training (“PCAT”) one time per month for 60 minutes (Ex. M-2; Ex. A-1-2; Ex. C-29, 35). Although Parent requested a paraprofessional to assist with toileting and feeding and behavior management, the District only recommended a paraprofessional for behavior management (Ex. M-5; Ex. A-6; Ex. C-29-30). The CSE did not recommend an updated BIP (Ex. M-5; Ex. A-6). In addition, the CSE recommended that Student participate in the New York State Alternative Assessment (“NYSAA”) Program for all subjects (Ex. C-32, 35-36). The CSE included approximately 19 management needs such as: a structured academic environment, reinforcements, opportunities for breaks, teacher check-ins and assistance, access to sensory tools and a sensory diet, and visual aids and cues (Ex. C-10). The CSE recommended that Student receive specialized transportation to and from school from the closest safe curb location (Ex. C-33, 36).

Parent disagreed with the program recommendation because Student needs significantly more support (Ex M-2, 6; Ex. A-6). Parent previously had toured several District 75 schools and was “very concerned” about Student’s needs being met in such a placement (Ex. M-6; Ex. A-7; Ex. C-36). However, Parent informed the CSE that they would consider the CSE’s recommendation (Ex. C-36). Lead Teacher also disagreed with the recommendation because Student requires the 2:1 ratio of adult support in addition to the 1: 1 paraprofessional (Ex. M-6; Ex. A-6). Student made progress in many areas, but at the time, Student was in a class with seven students in total, one lead teacher and three teaching assistants, resulting in a 2:1 student to teacher ratio (Ex. A-6). Additionally, Student was in daily small group ELA and Math sessions and had frequent 1:1 sessions with Lead Teacher (Ex. A-6). Private School informed the CSE that Student’s progress was due to the small student to teacher ratio, the extra support they could provide, the relationships Student had, implementation of DIR Floortime methodology, provision of breaks and use of a sensory gym (Ex. C-36). Parent confirmed that Student benefitted from those supports and relayed that Student still struggled with sensory regulation, activities of daily living (“ADLs”) such as toileting and feeding, speech and language challenges and academic delays (Ex. M-5; Ex. A-6; Ex. C-36).

As of the filing of the DPC, Parent had not received a placement offer for Student for the 2022-2023 school year (Ex. M-6; Ex. A-6).

Based upon those concerns and the progress Student had made at Private School in the past, Parent decided to re-enroll Student at Private School for the 2022-2023 school year (Ex. M-6; Ex. A-7, 9). On June 20, 2022, Parent, through their attorney, sent the District a Ten Day Notice (“TDN”) (Ex. M-6; Ex. A-1, 7; Ex. B). In their very detailed letter, Parent recounted Student’s medical background and history with the DOE (Ex. B-2-6). Parent also relayed what transpired at the May 2022 CSE meeting and why they believed the District failed to offer Student a FAPE for the 2022-2023 school year (Ex. B-6-9). Among Parent’s claims were that the District failed to: incorporate the program recommendation of the most recent private neuropsychological evaluation or of Private School reports, and therefore, had no data upon which to make its recommendations; complete a FBA and develop an adequate BIP; recommend an appropriate special education program to address Student’s numerous challenges; consider the continuum of available special education programs, including by predetermining the outcome of the IEP meeting and not considering a State-approved NPS; finalize the IEP or recommend a placement; and provide any funding for school meals during Student’s attendance at Private School (Ex. B-8-9). Parent stated they would re-enroll Student at Private School for the 2022-2023 school year and intended to seek, inter alia, tuition reimbursement in the form of direct payment to Private School, as well as appropriate transportation (Ex. M-6; Ex. B-1, 9-10; Ex. A-1). The DOE did not respond to that letter (Ex. M-6).

On May 17, 2022, Parent and Non-Testifying Parent (“Parents”) signed a contract with Private School (Ex. N-12; Ex. D). The tuition at Private School for Student for the 12-month 2022-2023 school year, running from July 5, 2022 through June 23, 2023, was $184,980 (Ex. M-6; Ex. N-12; Ex. D; Ex. F). This includes $156,000 for tuition and $28,980 for the paraprofessional (Ex. N-12; Ex. D-1, 5, 7, 9; Ex. F). The contract specifically states that Parents expressed that they expected to continue working with the DOE to identify a public school or NPS that has a contract with the DOE, and that if the DOE offers Student a FAPE, Parents can accept that offer and withdraw Student from Private School (Ex. D-2). Further, if Parents were to have notified Private School of such a placement before September 12, 2022, Parents would only have been liable for the non-refundable deposit (Ex. D-2). Private School deferred tuition payments pending the outcome of the due process proceeding based upon Parents’ financial status (Ex. D-5-6). If Parents “do not qualify financially for prospective payment of tuition or . . . are denied payment by a final decision resolving their claim for prospective payment of tuition, Parents will remain responsible for tuition costs per the Enrollment Agreement . . .” (Ex. M-6; Ex. D-6, 7). Parent’s adjusted gross income of $ REDACTED in 2021 is similar to their current income, and thus, they are unable to pay the tuition (Ex. M-6, 7-8; Ex. L). Parent made one payment of $2,500 and one of $1,500 (Ex. M-6; Ex. N-12; Ex. F). Accordingly, Parent seeks reimbursement of $4,000 and direct funding to Private School for the $180,980, the balance of the tuition amount (Ex. M-6, 7; Ex. N-12; Ex. F).

LEGAL STANDARDS AND FRAMEWORK

Impartial Hearing Officers (“IHOs”) are tasked with determining whether a student received a free appropriate public education (“FAPE”). See 20 U.S.C. § 1415(f)(3)(E)(i); 8 NYCRR § 200.5(j)(4)(i). That determination must be made on substantive grounds and with regard to the meeting of certain procedural requirements. Id. In guiding their decision, IHOs are bound by two purposes of the IDEA: (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 to prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and of their parents are protected. See 20 U.S.C. § 1400(d)(1)(A),(B); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 (2009); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-207 (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 is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-207; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-190 (2d Cir. 2012); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012). More specifically, the educational program must be “reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 137 S. Ct. 988, 1001 (2017).

Regarding procedural requirements, to deprive a student of a FAPE, the procedural inadequacies must have impeded the student’s right to a FAPE, significantly impeded the parent’s opportunity to participate in the decision-making process or deprived the student of educational benefits. See 20 U.S.C. §1415(f)(3)(E)(ii); 34 CFR § 300.513(a)(2) and 8 NYCRR § 200.5(j)(4)(ii).

Regarding the substantive requirements, as the words in FAPE indicate, students are entitled to an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998), quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). The IEP, which is at the center of the analysis, must address the “unique circumstances of the child for whom it was created." Endrew F., 137 S. Ct. at 1001. It must also be “likely to produce progress, not regression.” See Cerra v. Pawling Cent. Sch. Dist, 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130 (citations omitted).

Accordingly, an IEP must include a statement of the student's present levels of academic achievement and functional performance, establish annual goals designed to meet the student's needs resulting from the student's disability and enable the student to make progress in the general education curriculum, and must provide appropriate special education and services. See generally 34 CFR § 300.320(a) and 8 NYCRR § 200.4(d)(2). The IEP must be developed in consideration of the student’s: “(1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs.” Brock v. N.Y. City Dep’t of Educ., 2015 WL 1516602, 2015 U.S. Dist. LEXIS 44254, 3 (S.D.N.Y. 2015), quoting M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d at 224 (further citation omitted). Finally, the student's recommended program must be provided in the least restrictive environment (“LRE”). See 20

U.S.C. § 1412(a)(5)(A); 34 CFR § 300.114(a)(2)(i), 34 CFR § 300.116(a)(2); 8 NYCRR

§ 200.1(cc), 8 NYCRR § 200.6(a)(1).

Overview of Unilateral Placement and Tuition Reimbursement Analysis Decisions concerning tuition reimbursement matters must focus on the seminal United States Supreme Court cases of Sch. Comm. of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359 (1985) and Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993) and their progeny. Read together, the seminal cases produced what is commonly referred to as the “Burlington/Carter” test which establishes the framework for inquiry. Pursuant to the test, parents who unilaterally place their children in private school will be entitled to reimbursement if (1) the school district’s proposed placement was inadequate or inappropriate, (2) the parent’s alternative private placement is appropriate to meet the student’s needs, and (3) equitable considerations support the claim. See Sch. Comm. of Burlington, Mass. V. Dep’t of Educ. of Mass., 471 U.S. 359, 369-370 (1985) and Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15-16 (1993). See also Brock, 2015 WL 1516602, 2015 U.S. Dist. LEXIS 44254, 14 quoting E.M. v. N.Y.C. Dep’t of Educ., 758 F.3d 442, 451 (2d Cir 2014).

Generally, the DOE bears the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings. However, in a tuition reimbursement matter, the parent bears the burden of proof, including the burdens of persuasion and production, solely on the issue of the appropriateness of the placement. See NYS Educ Law § 4401(1)(c); see R.E. v. New York City Dep’t of Educ., 694 F.3d at 184-185. Accordingly, in a tuition reimbursement matter, the DOE bears the burden of proof on what is commonly referred to as Prong One, the provision of a FAPE. Should it be determined that a FAPE was not provided, the burden then shifts to the parent to prove what is commonly referred to as Prong Two, the appropriateness of the parentally selected placement. Thereafter a balancing of the equities must be conducted with the DOE bearing the burden of proof on Prong Three. Id.

FINDINGS OF FACT AND DECISION

PRONG ONE- THE PROVISION OF A FAPE

I find that the District failed to meet its burden to prove that it offered Student a FAPE for the 2022-2023 school year.

District Representative would not “outright concede” that they failed to meet their Prong 1 burden, stating that they “would rely on the documents provided,” and would not present a case (Tr. dated 7/12/2023 p. 10). District Representative declined to present witnesses (Tr. dated 7/12/2023 pp. 10, 19, 20), did not address in their opening statement how their documents proved that the District provided a FAPE (Tr. dated 7/12/2023 p. 20), and waived their opportunity to present a closing statement (Tr. dated 7/12/2023 p. 45).

Upon reviewing the documents presented by the District, I find them insufficient to meet the District’s burden to prove it offered a FAPE to Student for the 2022-2023 school year. District’s Exhibit 2 is Parent’s DPC which provides various claims regarding the District’s failure to provide a FAPE. District’s Exhibit 3 is the IEP at issue in this matter with which Parent disagrees in various respects. District’s Exhibit 4, the “Prior Written Notice Package” had to be relabeled to remove the words “for Placement” as there was no SLL, supporting Parent’s claim that the District never offered Student a school location for the 2022-2023 school year (Tr. dated 7/12/2023 pp. 12-14). Further, the PWN itself merely states in a conclusory fashion that the “IEP recommends an appropriate program and related services in the least restrictive environment and is reasonably calculated to enable [Student] to meet [their] goals and make academic progress” (Ex. 4-2, 3). It also merely lists the type of placement and services recommended, and provides a listing of other options considered with conclusory statements that two settings considered “would not adequately support” Student and others “were deemed too restrictive and not appropriate” (Ex. 4).

The lack of any testimony from the CSE team members to explain that the programs and services they recommended were appropriate, sufficient and/or adequate to provide Student with a FAPE leave me no choice but to find the District failed to offer Student a FAPE for the 2022-2023 school year. Parent detailed their claims and alleged numerous substantive and procedural violations in support of those claims (Ex. A-5-8) which went wholly unaddressed by the District. In particular, Parent raised specific concerns about placement in a District 75 school with a 6:1+1 class given the level of support Student requires (Ex. M-5-6; Ex. A-6). The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F., 137 S. Ct. at 1002. Here, by electing not to present a case, the District offered absolutely no explanation, let alone a cogent and responsive explanation, for the CSE’s program and placement recommendations. Additionally, Parent is entitled to a presumption as to the truth of the asserted facts underlying their claims that are contained in the documentary evidence and testimony to the extent they are credible and not contradicted by the hearing record. Finally, a review of the record herein establishes that the weight of the evidence supports the conclusion that the District failed to offer Student an educational program reasonably calculated to offer a FAPE for the 2022-2023 school year.

Accordingly, I proceed to the appropriateness of the unilateral placement, Prong Two.

PRONG TWO- APPROPRIATENESS OF PARENT’S PLACEMENT

I find that Parent met their burden of proving by a preponderance of the evidence that their unilateral placement of Student at Private School was appropriate. In support of their position, Parent provided numerous exhibits, including the Enrollment Contract (Ex. D); Attendance Record (Ex. E); Tuition Affidavit (Ex. F); Student’s Schedule (Ex. G); Private School Program Description (Ex. H); and Student’s Interdisciplinary Report of Progress Updates from December 2022 and June 2023 (Ex. I; Ex. J).

The record also includes testimony from two witnesses– Parent and Program Director for Private School. Parent testified generally about Student’s needs, how Private School addresses them and Student’s progress at Private School (Ex. M). Program Director testified about Private School in general and specifically how it addresses Student’s needs as well as Student’s progress (Ex. N). Program Director’s duties include: 1) interviewing, hiring and training staff; 2) conducting informal classroom observations; 3) serving as a member of the intake process and placement of students in classrooms; 4) collaborating with classroom staff, related services providers and supervisors; 5) overseeing the parent training program; and 6) ensuring compliance with various State and local rules and regulations (Ex. N-1-2). Program Director has known Student since they began attending Private School in 2017, saw Student informally every day, and tried to informally observe Student within the classroom at least every two weeks during the 2022-2023 school year (Ex. N-7; Tr. dated 7/12/2023 pp. 29-30, 32). Program Director has participated in decisions regarding Student’s classroom placement, including for the 2022-2023 school year (Ex. N-6). I found both witnesses credible.

Determining Appropriateness When a parent seeks tuition reimbursement after unilaterally placing their child in a private program, the parent must demonstrate that the program is appropriate to meet their child’s needs. A.D. ex rel. E.D. v. Bd. of Educ. Of City Sch. Dist. Of New York, 690 F.Supp.2d 193, 206 (S.D.N.Y. 2010). The issue is whether the placement is “reasonably calculated to enable the child to receive educational benefits.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir 2017), citing Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d. Cir 2006). The “unilateral private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115 quoting Frank G., 459 F.3d at 365.

The Parent must prove appropriateness by a preponderance of the evidence. See NYS Educ Law § 4401(1)(c); see R.E. v. New York City Dep't of Educ., 694 F.3d at 184-185.

Among the considerations are whether the private placement is likely to produce progress, not regression. See Gagliardo, 489 F.3d at 112, quoting Walczak, 142 F.3d at 130. Moreover, as specifically noted in Frank G., 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 specifically 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 364-365.

Overview of The Private School Program Examining the totality of the evidence presented, I find that Private School provided educational instruction specifically designed to meet the unique needs of this Student, supported by services as was necessary to permit this Student to benefit from the instruction. Accordingly, I find meritless the District’s position that “the unilateral placement is not appropriate for the student” (Tr. dated 7/12/2023 p. 20).

Private School is a 12-month therapeutic day school for children with neurodevelopmental delays in relating and communication (Ex. N-1, 2; Ex. H-1). The School’s overall mission is to assist students developmentally to help them become “the most independent, creative, logical thinking communicator[s] that they can be in their environment” (Ex. N-2; Ex. H-5, 8). Approximately 85% of the student are diagnosed with Autism, with the other 15% living with challenges in relating and communicating, sensory processing and fine and gross motor skills (Ex. N-2). The students’ verbal abilities range from nonverbal to those who struggle with verbal communication (Ex. N-2). The program is ungraded. Instead of using academic or standardized assessments, Private School relies upon informal assessments (Ex. N-3; Tr. dated 7/12/2023 pp. 30-31).

Private School follows the Common Core standards (Ex. N-3; Ex. H-8). They also use various programs such as Lindamood-Bell, Reading from A to Z, Ablenet Math, Hands on Science and Creative Curriculum (for Social Studies), which are each adapted as needed (Ex. N-3; Ex. H-8). Private School uses the Developmental Individual-Difference Relationship-based (“DIR”) program (Ex. N-3; Tr. dated 7/12/2023 p. 32; Ex. H-3, 7; Ex. I-1). This methodology looks at “six basic developmental levels that all typically developing children go through and usually master by the age of four or five” (Ex. N-3-4; Tr. dated 7/12/2023 p. 32-33, 41; Ex. H-4). Children with neurodevelopmental delays in relating and communicating do not progress through these levels in the same way, which not only results in developmental “holes,” but also problems with relating, communicating, sensory processing and learning (Ex. N-4). Because many of the students live with sensory processing issues, Private School “proactively address[es]” sensory needs to help students remain available to learn (Ex. N-4). For example, OT Therapists create “sensory diets,” which are sensory activities offered on a regular basis throughout the day (Ex. N-4). Further, Private School has two sensory gyms (Ex. N-2; Ex. H-6), and each classroom houses a sensory corner (Ex. N-2). Private School offers related services, including OT, SLT, PT, and Counseling (Ex. N-3; Ex. H-3).

Each classroom typically consists of eight students, one head teacher and three assistant teachers (Ex. N-2). Staff include head teachers, assistant teachers, therapists in various related services fields, an adaptive physical education teacher and administrative staff (Ex. N-3; Ex. H-7). All head teachers hold a Master’s Degree in Special Education or are enrolled in a master’s program for such (Ex. N-4; Ex. H-7). All related services providers hold at least a master’s degree and are licensed and certified in their fields (Ex. N-4; Ex. H-7). Teaching assistants hold at least a bachelor’s degree but many possess or are seeking master’s degrees (Ex. N-4; Ex. H-7). Paraprofessionals are not required to hold any type of degree, but are trained by Private School (Ex. N-4). Staff are part of an Interdisciplinary Team, and classroom staff are trained in different areas so that, for example, teachers can integrate sensory activities into the classroom (Ex. N-4). Teachers have an Education Supervisor assigned to them to help with creating goals and learning plans to address each student’s needs (Ex. N-4). Teachers and assistant teachers review specific goals weekly and track those goals for six months (Ex. N-4-5). A progress report is then generated with input from every team member contributing to the report (Ex. N-5; Tr. dated 7/12/2023 pp. 31-32). Progress reports are issued in December and then again in June (Tr. dated 7/12/2023 p. 31).

Prior to the start of school each year, all staff undergo a four-day training which includes training on: the DIR model; interventions related to the model; the Learning Without Tears program; academic curricula; and sensory diets (Ex. N-5). Many staff also go through an intensive DIR certification process, and approximately 23 staff members possess the credentials to train staff to become certified (Ex. N-4). Each week during the school year, all staff engage in a case conference to review a student’s program through the DIR lens and to see if changes are needed (Ex. N-4). At the meetings, staff also discuss issues related to the school in general and issues that are unique to an individual classroom (Ex. N-5). Staff attend professional development throughout the year (Ex. N-5).

Private School only offers admission if they believe they can meet a prospective student’s needs (Ex. N-5). As part of that process, parents tour the school and meet with the Admissions Director (Ex. N-5; Ex. H-4). Once parents submit various documents, the Clinical Director conducts a Functional Emotional Assessment Scale (“FEAS”) which assesses developmental level and individual differences (Ex. N-5; Ex. H-4). If Clinical Director and Program Director determine that the School can address the child’s need and that an appropriate classroom is available, they invite the student to a classroom visit with the Assistant Director (Ex. N-5; Ex. H-4). The three directors then meet to discuss whether to extend an offer of enrollment (Ex. N-5). Each year, Private School determines whether re-enrollment is appropriate (Ex. N-6). They look at the student’s progress toward goals and whether the School can continue to meet the student’s needs (Ex. N-6).

For the 2022-2023 school year, Private School enrolled approximately 153 students ranging from age 3 to age 21 (Ex. N-1, 2). Private School has 18 classrooms with classes grouped primarily by developmental level, but also by age, verbal ability and sensory processing needs (Ex. N-2, 3, 5; Tr. dated 7/12/2023 p. 37; Ex. H-6). Classrooms employ a 2:1 student-to-teacher ratio and the School tries to ensure that two students can work together and that students can serve as role models while also being challenged (Ex. N-50). The School ensures there is a mixture of verbal abilities in each class (Ex. N-5-6; Tr. dated 7/12/2023 p. 37). About 15% of students at Private School communicate solely through a device (Tr. dated 7/12/2023 p. 38). Private School is “not as concerned” about academics because they offer individual and small group academic instruction (Ex. N-6).

When a student starts at the school, Private School assesses them for two weeks (Ex. N-6). The related services providers and social worker assigned to the classroom observe students individually and in groups (Ex. N-6). Related services providers create related services mandates based on observations and assessments (Ex. N-6). Further, because the providers work with all students in the classroom, they often push-in to the room to offer support (Ex. N-6). This is in addition to individual service mandates (Ex. N-6). The Interdisciplinary Team works together to create goals for each Student at the beginning of and throughout the year (Ex. N-6). Individual goals are created based on the DOE IEP’s goals, informal assessments, their time with students, what parent has reported, and progress from the previous year if the student is a returning student (Ex. N-6).

Private School and families communicate frequently (Ex. N-3). Teachers and social workers assigned to the family each speak with parents at least once per week (Ex. N-30). Related services providers speak with parents at least once every two weeks (Ex. N-3). Private School offers various groups, trainings and workshops to families (Ex. N-3). After Private School issues Progress Reports, a parent-team meeting is scheduled to discuss the student’s progress toward goals, to discuss whether parent wishes to add any goals and to devise new treatment plan (Ex. N-5).

The Private School Identified This Student’s Specific Educational Needs

I find that Private School identified this Student’s specific educational needs.

It was clear throughout the detailed testimony and the reports submitted that Private School appropriately identified this Student’s needs (Ex. N; Ex. I; Ex. J). Student began attending Private School for the 2017-2018 school year (Ex. N-6; Ex. M-2; Tr. dated 7/12/2023 p. 32). Private

School is aware that Student is diagnosed with Autism and lives with neurodevelopmental delays in relating and communicating (Ex. N-7; Ex. M-2). Student is nonverbal (Ex. N-7, 8; Ex. M-2), but communicates through a combination of gestures, approximations, vocalizations and body proxemics (Ex. N-7; Ex. I-1, 10).

The School has determined that one of Student’s “biggest challenges” is sensory processing (Ex. N-7; Tr. dated 7/12/2023 p. 42). Student is a sensory seeker who is “always on the move” and has difficulty taking in information with all senses (Ex. N-6; Ex. M-2; Ex. I-1). Student’s visual processing is “so compromised” that Student stands up on higher objects to look down at things (Ex. N-7). Student possesses motor planning and sequencing difficulties, including demonstrating difficulty walking up and down stairs (Ex. N-7).

Private School identified that Student becomes dysregulated in response to many different stimuli. For example, Student is sensitive to auditory stimulation and becomes dysregulated by sounds (Ex. N-7; Ex. I-1). Student becomes dysregulated due to hunger and body temperature (Ex. N-7). Dysregulation also occurs when Student is presented with a task they perceive as challenging (Ex. N-7) or when they have to transition from a preferred activity to a non-preferred activity (Tr. dated 7/12/2023 pp. 42-43). When Student is dysregulated, they may run quickly from one adult to another, elope or act in an aggressive manner, such as by sometimes biting or pulling hair (Ex. N-7; Ex. M-7; Ex. I-8). Student responds best when they are happy (Ex. N-9), and Private School identified that speaking in Spanish seems to soothe Student (Ex. N-10).

Student’s needs also extend to ADLs. For example, Student cannot use the toilet independently (Ex. N-7; Ex. M-2, 7). Additionally, Student has feeding issues as evidenced by requiring that food be served at a certain temperature and pureed and needing assistance with feeding themselves (Ex. N-7; Ex. M-2, 7).

Moreover, Private School identified what Student likes and the impact that such has on their educational needs. For example, Student enjoys books with sing-song texts and chooses to read books during unstructured time (Ex. N-9; Ex. M-7; Ex. I-4). Because Student likes to be connected and engages with preferred adults (Ex. N-9), Student serves as a peer model and enlists other students to join activities (Ex. N-8). Student responds to regulating strategies such as deep breathing and using sensory tools such as a hand massager (Ex. N-8; Ex. I-8). Student benefits from the sensory gym (Ex. N-8), and enjoys sensory play, gross motor games, and high affect anticipation games (Ex. I-1)

The Private School Addressed this Student’s Specific Educational Needs

I find that Private School addressed this Student’s educational needs. Student’s classroom consisted of nine students in total, one head teacher, and three teacher assistants (Ex. N-8; Ex. I-1). Student’s Head Teacher was the same as the prior school year (Ex. N-8; Ex. I-1), and Student had a good relationship with Head Teacher (Ex. N-8; Ex. M-7; Ex. I-1). Student was placed in a class with six “highly verbal” and two “emerging verbal” students (Ex. N-8; Tr. dated 7/12/2023 p. 34). Although Student is nonverbal, they were placed in that class “so that there’s an opportunity for role models and for interactions and initiation so that some students may use more spoken language, where [Student] may use [their] device, but they’re able to communicate with both of those things, verbal language and a device” (Ex. N-8; Tr. dated 7/12/2023 pp. 36-37). Student’s class placement was considered successful because Student “did very well” and made gains (Tr. dated 7/12/2023 p. 38).

Student also had a 1:1 paraprofessional (Ex. N-8; Ex. I-1). The paraprofessional assisted Student with ADLs and supported Student’s access to the program (Ex. N-8; Ex. I-1). For example, they took proactive measures to prevent Student from becoming dysregulated, and helped Student if they did become dysregulated (Ex. N-7). The paraprofessional also worked with the Speech Therapist to address Student’s feeding issues (Ex. N-7).

Student’s individualized program included DIR sessions, academic classes, visual-spatial activities, and sensorimotor play (Ex. I-1). It also included art, music and adaptive physical education (Ex. G; Ex. I-1). Student started off each morning with ADL assistance and ended each day with a “Goodbye Meeting/ADLs” (Ex. G). Student’s schedule included groups such as Community Food Group, Interoception Group, Advocacy Group, Handwriting Group, and Meditation/Mindfulness (Ex. G; Ex. I-8, 9).

The primary focus of Student’ program for the 2022-2023 school year continued to be “restoring regulation and maintaining engagement across a range of emotions, activities and environments” (Ex. N-8; Ex. I-1).

Student received Reading Instruction every day (Ex. G). Student learned literacy skills such as comprehension, character analysis and sequencing through reading groups (Ex. I-4). Literacy activities used a multisensory approach (Ex. I-4). Student’s individualized reading program focused on supporting their engagement in books and increasing symbol recognition (Ex. I-4). Student used visuals and hand gestures to demonstrate understanding (Ex. I-4). Student’s teacher helped Student by using verbal narration and pictures, and the paraprofessional helped Student to identify key components to the story (Ex. I-4).

Student received Math every day (Ex. G). Student worked on improving number sense, using manipulatives, and referencing patterns (Ex. N-9; Ex. I-5). To help Student, the adult would say numbers out loud as Student moved objects, thereby building Student’s rote counting skills, and comfortability with numbers and manipulatives (Ex. I-5). Since December, Student’s class learned about shapes (Ex. I-5). The teacher incorporated visual spatial activities to address visual tracking, sequencing, and body awareness (Ex. I-5). Visual tracking activities are modified specifically to Student’s abilities (Ex. I-5).

Learning occurred outside of the classroom as well. For example, one time per week, Student’s class went on a community walk to the park or grocery store (Ex. N-10; Ex. G; Ex. I-7).

Private School also addressed Student’s related services needs. Student received OT two times per week individually and once with a 1:1 support during the morning meeting (Ex. N-10; Ex. G; Ex. I-7). Student participated in OT groups throughout the week as well (Ex. N-10; Ex. I-7). Student’s sessions took place in the classroom, sensory gyms, and in places around the school (Ex. I-7-8). Student often gestured to where they wanted to go for sessions (Ex. I-8).

Student’s program addressed sensory integration, motor planning and sequencing, gross and fine motor coordination, strength, visual spatial processing, self-care and socialization (Ex. I-8). Student was presented with opportunities to work through multi-step processes to increase ADL independence (Ex N-10). Student’s Occupational Therapist created a sensory diet specific to Student (Ex. N-7; Ex. I-8). Student was provided with sensory input three times per day to help Student remain calm, regulated and available to learn (Ex. N-7; Ex. G; Ex. I-1). Occupational Therapist trained Student’s teachers and paraprofessional how to implement the diet across settings (Ex. N-7; Ex. I-1, 8). Student was also given sensory breaks (Ex. N-8). During OT sessions, Student used “squigz” and weighted bean bags to increase proximal stability at the core and shoulder girdle (Ex. N-11; Tr. dated 7/12/2023 p. 40; Ex. I-8-9).^[7] Student worked on developing spatial skills, sequencing multiple steps, and on fine motor development (Ex. N-11). These skills helped with independence in meal preparation and feeding (Ex. N-11; Ex. I-9).

Student received PT twice per week as individual sessions (Ex. N-11; Ex. G; Ex. I-9). These sessions focused on muscle strength, postural control, bilateral integration and coordination and gross motor functioning (Ex. I-9). Student used equipment such as swings, a suspension rope and a trampoline, as well as an obstacle course, to address various deficits, build skills, increase strength and improve posture (Ex. I-10).

Private School administered SLT three times per week, twice individually and once in a group (Ex. N-10; Ex. G). SLT focused on supporting Student’s regulation, shared attention, and engagement to support purposeful communication, as well as targeting Student’s expressive, receptive and pragmatic language skills (Ex. I-11). At home, Student is exposed to Spanish and English (Ex. N-10; Ex. I-10-11). Accordingly, Student’s Speech Therapist, who is bilingual, used both languages during their sessions together (Ex. N-10; Ex. I-1, 11).^[8] In December 2022, to address Student’s lack of verbal communication, Speech Language Therapist introduced an Augmentative Alternative Communication (“AAC”) device, an iPad with a Proloquo app, which Student learned to use across settings (Ex. N-7; Ex. I-1, 10).

Private School addressed Student’s needs in other ways and in other settings. For example, Private School worked with Student on ADLs several times throughout the day over the course of the year (Ex. N-9; Ex. G-1; Ex. I-7-8). Student’s Progress

I find that Student made progress at Private School.^[9]

As noted, Private School uses the DIR program which looks at the six basic developmental levels that all typically developing children go through (Ex. N-3-4; Tr. dated 7/12/2023 pp. 32-33; Ex. H-3, 4, 7; Ex. I-i). Overall, Student had made progress on the first five levels, which include: regulation, shared attention, opening and closing circles, shared social problem solving, and symbol recognition (Tr. dated 7/12/2023 pp. 33-34). Given Student’s neurodevelopmental delays in relating and communication, Student is not expected to “master” levels (Tr. dated 7/12/2023 p. 33). Overall, Student handles challenges more effectively (Tr. dated 7/12/2023 p. 33, 35). The DIR model addresses those challenges, and the combination of the “very intense sensory diet and processing,” the 1:1 paraprofessional, the related services, the “whole team approach” and transdisciplinary training all work together to support progress (Tr. dated 7/12/2023 pp. 35-36).

Student demonstrated much progress in sensory processing (Ex. N-8; Ex. I-8). Student is still a sensory seeker and needs to be on the move, but their ability to be calm, regulated, and participate has “increased significantly,” enabling Student to attend and participate in groups (Ex. N-8; Tr. dated 7/12/2023 p. 34). For example, before becoming dysregulated, Student would lead their paraprofessional to the sensory gym, request sensory breaks or take an object that provided sensory support (Ex. N-8; Tr. dated 7/12/2023 p. 34; Ex. I-1). Student would take out headphones and/or lead the paraprofessional to the door to indicate that auditory stimuli was overwhelming (Ex. N-8; Ex. I-1). During the second semester of the 2022-2023 school year, Student was able to return to a state of shared regulation in 5 minutes, down from 8 minutes previously (Ex. N-8). Progress was also noted in attention. Student could remain in the classroom for up to 20 minutes, whereas before they would abscond within 15 minutes (Ex. N-9). Student demonstrated progress in academic subjects, as well. During Reading Instruction, Student was more engaged with books and continued working on symbol recognition (Ex. N-9; Ex. I-4). Student learned to hold a book properly, turn the pages, close the book when finished and use hand motions to demonstrate comprehension (Ex. N-9; Ex. I-4). Student could also follow a story line using visuals with teacher prompting (Ex. N-9; Ex. I-4). Previously, they would throw the visual instead of engaging with it (Ex. N-9; Ex. I-4). Student improved in symbol recognition, being able to answer questions with choices, with visuals (Tr. dated 7/12/2023 p. 34).

Student also showed improvement in Math. For example, Student began to show awareness of some numbers (Ex. N-9; Ex. I-5). For example, when the teacher would say “Ready, 1, 2, . . .” Student would look toward the object or activity excitedly (Ex. N-9; Ex. I-5). Student’s visual scanning ability improved (Ex. I-5).

In terms of ADLs, since December 2022, Student demonstrated greater independence when unpacking in the morning (Ex. N-9; Ex. I-7). Student previously required moderate verbal, gestural and tactile support (Ex. N-9). Student later required model gestural support only (Ex. N- 9). In the bathroom, Student became more independent, with tasks such as taking off their pants, throwing their pull up in the garbage and turning on the water to wash their hands (Ex. N-9; Ex. I- 7). Student learned to scoop food out of the bowl while an adult held it for them (Ex. N-9; Ex. I- 7). Student became more independent in feeding and would take food out of their container on their own (Ex. N-9-10; Ex. I-7). Student also made progress in identifying the “walking person” sign when crossing the street, demonstrating greater awareness of community safety (Ex. N-10).

With SLT, Student’s ability to communicate increased (Tr. dated 7/12/2023 p. 34). They demonstrated the emerging skill of comprehending and responding to “How” and “Where” questions (Ex. N-10; Ex. I-11). Expressively, Student started to use language to communicate on a wide variety of topics (Ex. N-10; Ex. I-11). Student made gains in development of precursory language milestones, which augment their capacity to pair symbolic language (i.e. word or pictures) with meaningful concepts (Ex. N-10; Ex. I-11). For example, Student would stick their hand out of the swing while maintaining eye gaze to demonstrate that they want to get out of the swing (Ex. N-10; Ex. I-11). Student learned to use their AAC device more effectively and spontaneously (Ex. N-9; Tr. dated 7/12/2023 p. 34; Ex. I-4-5). For example, Student’s engagement increased from 10 minutes with support to up to 12 minutes with support (Ex. N-9). Student can now open 15 circles of communication with moderate support whereas previously they needed maximum support to open the same number of communications (Ex. N-9; Ex. I-11). Student also learned to use the icons on the iPad to find one that represented how they were feeling and would relatedly select it demonstrating intentionality (Ex. N-10; Ex. I-11). Additionally, Student demonstrated an emerging ability to follow a three-step motor plan to locate preferred places in school on their AAC device to initiate a transition (Ex. N-11; Ex. I-4-5).

Progress was also noted in OT. As noted, Student demonstrated an overall improvement in sensory processing (Ex. N-8; Ex. I-8). Student improved modulation using visual cues (Ex. I-8). When using “squigz,” Student previously needed maximal support, which decreased to moderate verbal, visual and tactile support (Ex. N-10; Ex. I-8-9). Student improved visual scanning, as demonstrated by looking around the room to reference peers (Ex. I-9). With the help of a “morning meeting booklet,” Student made progress in tracing vertical and horizontal lines and writing the first letter of their name (Ex. I-9). Student engaged in “hand exercises,” showing improved regulation, engagement, hand strength, endurance and dexterity (Ex. I-9).

PT sessions focused on motor planning, balance and postural control. Since December 2022, Student learned to ascend and descend five flights of stairs and walk without holding Physical Therapist’s hand, instead holding onto the handrail (Ex. N-11; Ex. I-10). Student also learned to use an alternating step pattern and increased their endurance, walking up 1 ½ flights of stairs before slowing down when previously they could only walk up one flight of stairs (Ex. N-11; Ex. I-10). Student demonstrated improvement in core and shoulder strength, postural control and balance (Ex. I-10).

Finally, Parent is happy with Student’s progress at Private School (Ex. M-7). Parent highlighted the importance of the DIR model, and pointed to: the attachments Student has made with staff; how the staff is able to communicate with Student to help them calm down; Student’s increased engagement with peers; improvements they have seen in Student’s feeding and toileting skills; Student’s emerging interests in reading and counting; increased attention span; and decreased frequency of dysregulation and time spent dysregulated (Ex. M-7).

Finding of Appropriateness In sum, Private School provides special education for students, like Student, who live with Autism and neurodevelopmental delays in relating and communicating, and who require a high level of support and services. Private School identified Student’s educational needs and created an educational program specifically to address them. Private School is implementing that program, instituting appropriate grouping with small class sizes, low student/teacher ratios, the support of a full time 1:1 paraprofessional and numerous related services to enable Student to access the educational curriculum. Further, Private School continues to re-assess and monitor Student’s needs and progress. Student is progressing as a result of the interventions and supports. I find that Parent has established by a preponderance of the evidence that Private School is an appropriate program for this Student.

Accordingly, I turn to Prong Three of the Burlington/Carter test, equities.

PRONG THREE- EQUITIES

The equities in this matter weigh in favor of Parent’s placement.

In deciding whether equities support the claim, including whether the remedy should be barred altogether or modified in some way, IHOs must consider a multitude of relevant facts. These can include whether the cost of the private education was unreasonable (see L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]), whether the parents failed to make their child available for evaluation by the district (see 20 U.S.C. § 1412[a][10][C][iii][III]) or whether actions taken by the parents were unreasonable (see 20 U.S.C. § 1412[a][10][C][iii][III]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 [2d Cir. 2014] [stating, “[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”]; Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F. Supp.2d 403, 419 [S.D.N.Y. 2011] [finding equities met where parents cooperated in good faith at all times with the DOE, participated in the CSE meeting, visited proposed placements and notified district of unilateral placement].) The Second Circuit also has looked at whether the parents should have availed themselves of needbased scholarships or other financial aid from the private school, whether there was any fraud or collusion by the parent or the private school in generating the tuition or whether the arrangement with the school was fraudulent or collusive. See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

Additionally, as part of the equities analysis, reimbursement may be reduced or denied if the 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 10 business days before such removal. That notice must state that the parent is rejecting the proposed placement and must include their concerns and intent to enroll the student in a private school at public expense. See 20 U.S.C. § 1412(a)(10)(C)(iii)(I). The purpose of this statute is to enable the school district an opportunity to take the necessary steps to determine whether it can provide a FAPE to the student in a public school setting. See e.g. Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004). As the Second Circuit explained, "[t]he ten-day notice requirement gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections—all before the parents enroll their child in a private school and file a due process complaint." Further, "if parents unreasonably reject the school district's proposed changes to the IEP, or are otherwise uncooperative, courts and hearing officers are fully empowered to deny them reimbursement." Bd. of Educ. of Yorktown Cent. Sch. Dist. v. C.S., 990 F.3d 152, 171 (2d Cir. 2021). Parents of students enrolled in private school are not exempted from 10-day notice requirements. See S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-363 (S.D.N.Y. 2009).

Examining the many relevant factors as they pertain to this case, I find that the equities do not bar a full tuition remedy. Analysis of Equities As already noted, the District did not present witnesses (Tr. dated 7/12/2023 pp. 10, 19). They declined to cross-examine Parent (Tr. dated 7/12/2023 pp. 19, 44), and did not ask any questions of Program Director bearing upon equities (Tr. dated 7/12/2023 pp. 26-38). In their opening statement they did not address equities (Tr. dated 7/12/2023 p. 20), and they waived their closing statement (Tr. dated 7/12/2023 p. 45). Accordingly, I find that the District failed to prove that equities are in their favor.

Despite the District’s failure to meet their burden, I am required to analyze the entire record before me, which includes Parent’s documentary evidence and the testimony. I find that equities lie with Parent and that Parent is entitled to full tuition reimbursement.

Regarding the evidence presented, I find that the record is devoid of any unreasonableness with respect to Parent’s actions. For example, Parent fully cooperated with the CSE, as demonstrated by providing them Student’s April 2021 Neuropsychological Report and academic and related services progress reports from Private School, participating in the IEP meeting, explaining Student’s academic, physical and medical needs, and expressing concerns about the recommended program (Ex. M-2, 5, 6; Ex. A-5, 6; Ex. C-1, 35, 36). Additionally, despite previously touring several District 75 schools and being “very concerned” about Student’s needs being met in such a placement, Parent informed the CSE that they would consider the CSE’s recommendation (Ex. M-6; Ex. A-7; Ex. C-36).

Despite the District’s failures, on June 20, 2022, Parent, through their attorney, sent the District a TDN (Ex. M-6; Ex. A-1, 7; Ex. B). In their very detailed letter, Parent recounted Student’s medical background and history with the DOE (Ex. B-2-6). Parent also relayed what transpired at the May 2022 IEP meeting and all the reasons why they believed the District failed to offer Student a FAPE for the 2022-2023 school year (Ex. B-6-9). Parent stated they would re-enroll Student at Private School for the 2022-2023 school year and intended to seek tuition reimbursement in the form of direct payment to Private School, as well as appropriate transportation (Ex. M-6; Ex. B-1, 9-10; Ex. A-1). I find that letter proper in all respects. I also find that the DOE did not respond to Parent’s letter (Ex. M-6). I further find that although Parents signed the contract on May 17, 2022, the day before the CSE met (Ex. M-2; Ex. N-12; Ex. D; A-5 Ex C-34, 37), the contract specifically states that Parents expressed that they expected to continue working with the DOE to identify a public school or NPS that has a contract with the DOE, and that if the DOE offers Student a FAPE, Parents can accept that offer and withdraw Student from Private School (Ex. D-2). Further, if Parents were to have notified Private School of such a placement before September 12, 2022, Parents would only have been liable for the non-refundable deposit (Ex. D-2).

Finally, there is no evidence to suggest that the cost of the school is unreasonable or that there was any collusion between Private School and Parent as to the tuition or otherwise.

Accordingly, I find that Parent acted reasonably and equitably at all related times for the 2022-2023 school year.

REMEDIES

Reimbursement/Direct Funding of Tuition Tuition at Private School for Student for the 12-month 2022-2023 school year, running from July 5, 2022 through June 23, 2023, was $184,980 (Ex. M-6; Ex. N-12; Ex. D; Ex. F). This includes $156,000 for tuition and $28,980 for the paraprofessional (Ex. N-12; Ex. D-1, 5, 7, 9; Ex. F). Parent seeks reimbursement of $4,000 and direct funding to Private School for $180,980, the balance of the tuition amount (Ex. M-6, 7; Ex. N-12; Ex. F). As explained, Parent would have been released from the contract if the DOE offered Student a FAPE and Parent accepted that offer and withdrew Student from Private School (Ex. D-2). The contract further states that if Parents “do not qualify financially for prospective payment of tuition or . . . are denied payment by a final decision resolving their claim for prospective payment of tuition, Parent will remain responsible for tuition costs per the Enrollment Agreement” (Ex. M-6; Ex. D-6, 7). As explained more fully below, I find that Parent is entitled to the requested form of payment. Pursuant to Connors v. Mills, 34 F.Supp.2d 795, 799, 805-06 (N.D.N.Y. 1998) “once the Burlington prerequisites are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of the private placement immediately.” See also Mr. & Mrs. A. v. New York City Dep’t. of Educ., 769 F. Supp. 2d at 427 (stating that where the Burlington factors are met, the court may award retroactive direct payment of private school tuition.) Here, I find that Parent testified credibly that they were able to make one payment of $2,500 and one of $1,500 (Ex. M-6; Ex. N-12; Ex. F), but were unable to pay the full tuition (Ex. M-6, 7-8). I find that such is supported by their tax return which reflects that Parent’s adjusted gross income was $ REDACTED in 2021 and that their income then is similar to their current income (Ex. M-6, 7-8; Ex. L).

As I have found that the Burlington/Carter test has been met, that there is no evidence that the tuition amount sought is unreasonable, and that there is evidence that Parent is unable to pay for Private School, I am granting the request to reimburse Parent $4,000 and to order direct funding to Private School for $180,980 for the 12-month 2022-2023 school year (Ex. M-6, 7; Ex. N-12; Ex. F).

As the Enrollment Contract and Tuition Affidavit are already in the hearing record, they need not be re-submitted (Ex. D; Ex. F).

TRANSPORTATION

Parent has requested a declaration that Student is entitled to appropriate transportation services (SC #3 Tr. dated 6/30/2023 p. 41; Tr. dated 7/12/2023 pp. 9, 46). I find that transportation services are appropriate and that Student is entitled to such.

The IDEA requires that a school district must provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’ . . . even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport.” Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala.., 117 F.3d 1371, 1374 [11th Cir. 1997] (internal citation omitted). Transportation may be deemed necessary “if in its absence a disabled child in private school would be denied ‘a genuine opportunity for equitable participation in [a special education program]’, . . . or special education program benefits “comparable in quality, scope, and opportunity for participation . . . [to those provided for] students enrolled in public schools.’” Id. at 1375 (internal citations omitted). 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” Education Law §§ 4401(1), 4402(4)(a); see also Education Law § 4401(2); 8 NYCRR § 200.1(ww).

I find that Student is entitled to specialized transportation to access and benefit from their special education program. Specifically, Student is entitled to receive specialized transportation to and from school from the closest safe curb location. I further find that the CSE determined that Student requires this specialized transportation, having recommended it on the May 2022 IEP (Ex. C-33-34).

OTHER CONTENTIONS

Parent seeks payment of attorneys’ fees and expenses associated with representation in this matter (Ex. A-10). The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party. Entitlement, if any, to costs must be determined by a court of competent jurisdiction. See 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008; Application of a Child with a Disability, Appeal No. 06-109. I would be exceeding the scope of my authority by determining that Parent is the prevailing party entitled to attorneys’ fees.

Other than the relief set out in my Order below, and my findings detailed in this section of “Other Contentions,” I find the Parties’ remaining contentions to be unnecessary to this decision, without merit, beyond my jurisdiction, subsumed within the statutory framework of the IDEA or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all of Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDERS

IT IS HEREBY ORDERED that the New York City Department of Education (“DOE”) is to fund the cost of Student’s 12-month 2022-2023 school year tuition at Private School up to a total amount of $184,980; and it is further

ORDERED that the DOE shall pay for the forgoing tuition by reimbursing Parent $4,000 within thirty-five (35) days of the date of this decision for tuition payments made to Private School for the 2022-2023 school year; and it is further

ORDERED that the DOE shall directly pay Private School the remainder of the tuition, $180,980, within thirty-five (35) days of the date of this decision; and it is further

ORDERED that the DOE was to have provided Student, throughout the 12-month 2022-2023 school year, round-trip special education transportation consisting of specialized transportation to and from school from the closest safe curb location.

August 11, 2023 (signed electronically)

Ginger James Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

APPENDIX A- REDACTION IDENTIFICATION PAGE

Redacted Information Term Used In FOFD

REDACTED Student

REDACTED Parent

REDACTED Non-Testifying Parent

REDACTED

Parents

REDACTED Parent’s Attorney

REDACTED District Representative #1

REDACTED District Representative #2

REDACTED District Representative #3

REDACTED District

REDACTED Private School REDACTED Program Director of Private School REDACTED Head Teacher at Private School REDACTED Occupational Therapist

REDACTED Physical Therapist

REDACTED Speech Language Pathologist

APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Impartial Hearing Request and Pendency Form 03/15/2023 13 pages

B. Ten Day Notice and Ten Day Notice Receipt 06/20/2022 11 pages

C. Individualized Education Program 05/18/2022 37 pages

D. REDACTED Enrollment Contract 06/22/2022 9 pages

E. REDACTED Attendance 2022-2023 2 pages

F. REDACTED Tuition Affidavit 03/29/2023 1 page

G. REDACTED Schedule 2022-2023 1 page

H. REDACTED Program Description REDACTED Interdisciplinary Report of Undated 8 pages

I. Progress Update REDACTED Interdisciplinary Report of June 2023 16 pages

J. Progress Update December 2022 13 pages

K. WITHDRAWN

L. Parent Tax Return 2021 2 pages

M. Parent Affidavit: REDACTED 07/05/2022 8 pages

N. School Administrator Affidavit: REDACTED 07/05/2023 12 pages

DOE EXHIBITS

1. WITHDRAWN DOE

2. Due Process Complaint 03/15/2023 13 pages DOE

3. Individualized Education Program 05/18/2022 37 pages DOE

4. Prior Notice Package 06/21/2022 4 pages DOE

IHO EXHIBITS

None

Footnotes

[4] Settlement conferences are conducted by an OATH Settlement Officer or OATH IHO not assigned to the case whose purpose is to aid the parties in exploring and facilitating a resolution to the DPC. Settlement Conference discussions are confidential, and the parties are directed to attend with knowledge of the dispute and settlement authority should there be an interest in resolution. Settlement conferences are not recorded.

[5] The District’s use of the terms “Prong One” and “Prong Two” refers to the Burlington/Carter standard as applied to cases involving direct funding for special education and related services and the rates for such for students placed in nonpublic schools by their parents.

[6] Exhibit K had been withdrawn (Tr. dated 7/12/2023 p. 16).

[7] A “squigz” is a rubbery sensory tool that Student could put in their mouth as an oral motor device or pull on to get tactile input (Tr. dated 7/12/2023 pp. 39-40).

[8] Occupational Therapist, Speech Language Therapist and Physical Therapist would all sing to Student in Spanish and use Spanish words to help Student during transitions (Ex. N-10).

[9] Student’s progress across multiple domains from December 2022 through June 2023 is extensively documented in Exhibit I. I have only included examples of progress in various areas. Student’s progress across multiple domains from September 2022 to December 2022 is extensively documented in Exhibit J. I have not specifically included examples from that report in this FOFD, but have reviewed that document and find that it supports the appropriateness of the Private School, including how they identified and addressed Student’s needs and how Student progressed.