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Special Education Law
DECISIONDistrict PrevailedIHO Case No. 246877

New York City Department of Education, Impartial Hearing Decision

June 9, 2023·representative (Educ. Law § 4402; see 20 U.S.C. §

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 597592 NYC: 246877

NEW YORK CITY OFFICE OF ADMINISTRATIVE

TRIALS AND HEARINGS (OATH)

SPECIAL EDUCATION HEARINGS DIVISION

REDACTED, a Minor, by and through his/her Parent(s),

PETITIONER

against

THE NEW YORK CITY

DEPARTMENT OF EDUCATION,

RESPONDENT

FINDINGS OF FACT AND DECISION

Dustin Johnson, Esq.

Impartial Hearing Officer

FINDINGS OF FACT AND DECISION

I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.

II. Overview – Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at 1 Findings of Fact and Decision an impartial hearing conducted at the local level before an Impartial Hearing Officer (“IHO”) (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1][3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).

III. Background and Procedural History

Petitioner is the parent of REDACTED (“Student”). On March 22, 2023, Petitioner filed an initial Due Process Compliant (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”) (see DOE-1; P-J). On April 3, 2023, Petitioner filed a second DPC against Respondent (see DOE-2; P-K).

The undersigned Hearing Officer was appointed to preside over the first DPC on March 23, 2023, and the second DPC on April 3, 2023. On April 25, 2023, a prehearing conference was held (See IHO-II). On April 25, 2023, an Order of Consolidation was issued consolidating the two DPCs (see IHO-I). On May 17, 2023, an impartial hearing on the merits of the DPC was held and completed the same day.

By DPC notice dated March 22, 2023, the parent alleged that she paid out of pocket for academic enrichment for the student to address learning loss and was seeking reimbursement from the District (see DOE-1; P-J). By DPC notice dated April 3, 2023, the parent alleged a denial of additional hours with a Special Education Teacher Support Services (“SETSS”) teacher and requested continued 1:1 instructional support for 2 hours per week (see DOE-2; P-K).

IV. Preliminary Motions

A. Statute of Limitations

On May 8, 2023, the District filed a motion to dismiss claims related to the 2020-2021 school year as time-barred by the Statute of Limitations (see IHO Exhibit V). On May 13, 2023, via email, the Parent objected, alleging that the Parent “never received any documentation stating my parental rights in the IEP process in the 2019-2020 school year. Or any documentation indicating that there was a 2-year statute of limitations informing me of my rights in the IEP

2 Findings of Fact and Decision process.” (see IHO Exhibit III). On May 15, 2023, the undersigned granted the District’s motion precluding all claims prior to March 22, 2021, as time-barred by the Statute of Limitations (id.).

The IDEA requires that, unless a state establishes a different limitations period under state law, a party must request a due process hearing within two years of when the party knew or should have known of the alleged action that forms the basis of the complaint (20 U.S.C. § 1415[f][3][C]; see also 20 U.S.C. § 1415[b][6][B]; Educ. Law § 4404[1][a]; 34 CFR 300.511[e]; 8 NYCRR 200.5[j][1][i]; Somoza v. New York City Dep't of Educ., 538 F.3d 106, 114 n.8 [2d Cir. 2008] [noting that the Second Circuit applied the same "knows or has reason to know" standard of IDEA claim accrual both prior to and after codification of the standard by Congress]; M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-22 [2d Cir. 2003]; G.W. v. Rye City Sch. Dist., 2013 WL 1286154, at *17 [S.D.N.Y. Mar. 29, 2013], aff'd, 554 Fed. App'x 56, 57 [2d Cir Feb. 11, 2014]; R.B. v. Dept. of Educ., 2011 WL 4375694, at *2, *4 [S.D.N.Y. Sept. 16, 2011]; Piazza v. Florida Union Free Sch. Dist., 777 F. Supp. 2d 669, 687-88 [S.D.N.Y. 2011]). New York State has affirmatively adopted the two-year period found in the IDEA (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j][1][i]). Determining when a parent knew or should have known of an alleged action "is necessarily a fact-specific inquiry" (K.H. v. New York City Dep't of Educ., 2014 WL 3866430, at *16 [E.D.N.Y. Aug. 6, 2014]).

Exceptions to the timeline to request an impartial hearing apply if a parent was 1) prevented from filing a due process complaint notice due to a "specific misrepresentation" by the district that it had resolved the issues forming the basis for the due process complaint notice; or 2) the district withheld information from the parent that it was required to provide (20 U.S.C. § 1415[f][3][D]; Educ. Law 4404[1][a]; 34 CFR 300.511[f]; 8 NYCRR 200.5[j][1][i] R.B., 2011 WL 4375694, at *6).

As the District indicated in its motion: Parent alleges in the DPC: “I paid out of pocket for academic enrichment for my daughter monthly from July 2020-November 2022.” To the extent this claim relates to the period from July 2020 to March 22, 2021, these claims expired under the two-year SOL prior to the Parent filing the DPC on March 22, 2023.

Parent alleges that she obtained the tutoring services “[a]t the start of the pandemic to address learning loss.” As such, by her own allegations, the Parent was aware as of the date she obtained the services of her claim for “learning loss” (see IHO Exhibit V).

Furthermore, as also indicated in the District’s motion and supported by evidence offered by the District: Here, the Prior Written Notice was sent to the Parent on 02/27/2020, which notified the Parent in writing that a copy of the procedural safeguards notice can be downloaded on the DOE's website or Parent could request the procedural safeguards notice from the DOE representative listed on the Prior Written Notice, which contained the DOE representative's phone number. In addition, the Prior Written Notice sent to the Parent stated that if the Parent did not agree with the 3 Findings of Fact and Decision

CSE's recommendation, the Parent had the right to an impartial hearing or to request mediation in writing. The Prior Written Notice also informed the Parent that an impartial hearing request needed to be made in writing and listed the address of the Impartial Hearing Office. (see IHO Exhibit V-1)

The "withholding of information" exception to the timeline to request an impartial hearing applies "if the parent was prevented from filing a due process complaint notice due to . . . the [district's] withholding of information from the parent that was required . . . to be provided to the parent (20 U.S.C. § 1415[f][3][D]; Educ. Law 4404[1][a]; 34 CFR 300.511[f]; 8 NYCRR 200.5[j][1][i]). Case law interpreting the "withholding of information" exception to the limitations period has found that the exception almost always applies to the requirement that parents be provided with the written notice of procedural safeguards required under the IDEA (Bd. of Educ. of N. Rockland Cent. School Dist. v. C.M., 744 Fed Appx 7, 11 [2d Cir. Aug. 1, 2018]; R.B., 2011 WL 4375694, at *4, *6; see D.K. v. Abington Sch. Dist., 696 F.3d 233, 246 [3d Cir. 2012]; C.H. v. Northwest Ind. Sch. Dist., 815 F. Supp. 2d 997, 986 [E.D. Tex. 2011]; Tindell v. EvansvilleVanderburgh Sch. Corp., 805 F. Supp. 2d 630, 644-45 [S.D. Ind. 2011]; El Paso Indep. Sch. Dist. v. Richard R., 567 F. Supp. 2d 918, 943-45 [W.D. Tex. 2008]; Evan H. v. Unionville-Chadds Ford Sch. Dist., 2008 WL 4791634, at *7 [E.D. Pa. Nov. [4], 2008]). Such safeguards include the requirement to provide parents with prior written notices and procedural safeguards notices containing, among other things, information about requesting an impartial hearing (see 20 U.S.C. § 1415[b][3]; [d]; 34 CFR 300.503; 300.504; 8 NYCRR 200.5[a], [f]). Under the IDEA and federal and State regulations, a district must provide parents with a copy of a procedural safeguards notice annually (20 U.S.C. § 1415[d][1][A]; 34 CFR 300.504[a]; 8 NYCRR 200.5[f][3]). However, if a parent is otherwise aware of his or her procedural due process rights, the district's failure to provide the procedural safeguards notice will not necessarily prevent the parent from requesting an impartial hearing (see D.K., 696 F.3d at 246-47; R.B., 2011 WL 4375694, at *7; Richard R., 567 F. Supp. 2d at 944-45). Furthermore, the regulations of the Commissioner of Education allow a district to place a copy of the procedural safeguards notice on its website if such website exists (see 20 USC 1415[d][1][B]; 8 NYCRR 200.5[f][4]) (see also Application of a Student Suspected of Having a Disability, Appeal No. 22-105).

In the instant case, as discussed above, the hearing record shows that the District provided the Parent with a February 27, 2020, prior written notice, wherein the District directed the Parent to the District's website to obtain a copy of the procedural safeguards notice and provided contact information for someone who could provide the Parent with a copy, and further informed the Parent of the right to request mediation or an impartial hearing and where to address such requests (see IHO Exhibit V-1). Furthermore, the Parent’s allegations contained within her DPC alleging she never received login credentials to the online account that would have included her parental rights is unavailing (see DOE-1). A cursory Google Search of “NYC DOE PROCEDURAL SAFEGUARDS” immediately generates NYC DOE website links with the Procedural Safeguards Notice available therein and which are accessible to the public without any login credentials or a private online account.

Based on the foregoing, the evidence in the hearing record leads me to conclude that the withholding of information exception does not apply to the Parent's claims preceding March 22, 2021, and, therefore, I find that all of the Parent's claims prior to March 22, 2021, are barred by the IDEA's two-year statute of limitations.

B. The Five-Day Exclusionary Rule

State regulations set forth the procedures for conducting an impartial hearing and address, in part, minimal process requirements that shall be afforded to both parties (8 NYCRR 200.5[j]). Among other due process rights, each party shall have an opportunity to present evidence, compel the attendance of witnesses, and to confront and question all witnesses (8 NYCRR 200.5[j][3][xii]). However, federal and State regulations provide that a party has the right to prohibit the introduction of evidence that has not been disclosed to that party at least five business days in advance of the impartial hearing (34 CFR 300.512[a][3]; 8 NYCRR 200.5[j][3][xii]). Further, State regulation provides that the IHO "shall exclude any evidence that he or she determines to be irrelevant, immaterial, unreliable, or unduly repetitious" or issue a subpoena if necessary (8 NYCRR 200.5[j][3][xii][c]; see 8 NYCRR 200.5[j][3][iv]).

However, courts have not enforced absolute adherence to the five-day rule for disclosure but have upheld the discretion of administrative hearing officers who consider factors such as the conditions resulting in the untimely disclosure, the need for a minimally adequate record upon which to base a decision, the effect upon the parties' respective right to due process, and the effect upon the timely, efficient, and fair conduct of the proceeding (see New Milford Bd. of Educ. v. C.R., 431 Fed. App'x 157, 161 [3d Cir. June 14, 2011]; L.J. v. Audubon Bd. of Educ., 2008 WL 4276908, at *4-*5 [D.N.J. Sept. 10, 2008], aff'd, 373 Fed. App'x 294 [3d Cir. 2010]; Pachl v. Sch. Bd. of Indep. Sch. Dist. No. 11, 2005 WL 428587, at *18 [D. Minn. Feb. 23, 2005]; Letter to Steinke, 18 IDELR 739 [OSEP 1992]; see also Dell v. Bd. of Educ., 32 F.3d 1053, 1061 [7th Cir. 1994] [noting the objective of prompt resolution of disputes]).

On May 10, 2023, at 5:01pm, the District submitted to the Parent, with a copy to the undersigned, the District’s proposed evidentiary disclosures in advance of the May 17, 2023, hearing on the merits of the DPC (see IHO Exhibit IV). On May 10, 2023, at 5:10pm, the District submitted to the Parent, with a copy to the undersigned, updated disclosures with the lone change being the inclusion of numbering on the documents per the undersigned’s order (see IHO Exhibit IV; IHO Exhibit II). On May 10, 2023, at 5:21pm, Petitioner emailed a motion to dismiss the DOEs disclosures, alleging untimeliness (see IHO Exhibit IV). On May 11, 2023, the undersigned denied Petitioner’s motion to dismiss.

Hearing officers are charged with making a determination of whether the student received a FAPE based on substantive grounds (20 U.S.C. § 1415[f][3][E][i]; 8 NYCRR 200.5[j][4][i]), and, if necessary, they must take steps to ensure that an adequate hearing record has been completed upon which to base a decision (see 8 NYCRR 200.[5] [j][3][vii]).

In this case, other than alluding to a technical timeliness default and without citing to any statutory authority for the Petitioner’s position (the veracity of which is questionable), the Petitioner here failed to articulate any prejudice as a result of the undersigned’s determination to allow the District's documents into the hearing record as evidence. (34 CFR 300.512[a][3]; 8 NYCRR 200.5[j][3][xii]; see Jusino v. New York City Dep't of Educ., 2016 WL 9649880, at *6 [E.D.N.Y. Aug. 8, 2016], aff'd, 700 F. App'x 25 [2d Cir. 2017] ["Like all procedural rules and Even assuming arguendo that the District’s disclosures were untimely, and overlooking the glaring reality that a number of the District’s offered submissions were duplicative of the Petitioner’s own submissions, and after having considered the enumerated factors for admitting untimely evidence (specifically, the conditions resulting in the purportedly untimely disclosure, the need for a minimally adequate record upon which to base a decision, the effect upon the parties' respective right to due process, and the effect upon the timely, efficient, and fair conduct of the proceeding), the undersigned would have nevertheless admitted the offered documents as an exercise of discretion to ensure an adequate hearing record and to make a determination of whether the student received a FAPE based on substantive grounds. 1

For the reasons indicated above, the undersigned’s admission of documentary evidence in this matter was proper.

V. Findings of Fact

On May [6], 2021, the student received a pediatric neurology evaluation (P-B). Evaluator 1 recommended academic and behavioral supports and interventions, and if difficulties persist, Evaluator 1 recommended the consideration of medication therapy (P-B).

On August 10, 2021, the student received another pediatric neurology evaluation (P-C). Evaluator 2 noted that based on the student’s learning needs, she could benefit from a 1:1 paraprofessional and an afterschool program to assist with her homework (P-C).

On March 9, 2022, and March 16, 2022, the student received a Neuropsychological Evaluation (P-D; DOE-3 (subsequent citations only to District’s exhibit)). The Neuropsychological Evaluator found that the student’s academic history and evaluation results are consistent with language-based learning disorders (DOE-3-10). The student was diagnosed with Specific Learning Disorders in reading, written expression, and mathematics, as well as Mixed Receptive-Expressive Language Disorder-Moderate, and Attention Deficit Hyperactivity Disorder (DOE-3-11). The Neuropsychological Evaluator made various generalized recommendations to address the student’s deficits (DOE-3-11-12).

On February 12, 2020, September 27, 2021, and September 23, 2022, and as further discussed below, the District generated procedurally and substantively valid IEP’s that were reasonably calculated to enable the student to receive educational benefits (see generally DOE-4; DOE-6; DOE-10).

VI. Applicable Standards

1 It bears noting that accommodations were also made for the Petitioner’s failure to provide timely disclosures to the appropriate email address of the District’s representative and Petitioner’s disclosures were likewise accepted.

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; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; 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. Fla. 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]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017]). 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. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). 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).

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 adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 137 S. Ct. at 1001). 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.,

7 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]). 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 Endrew F., 137 S. Ct. at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; 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).

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]), 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]). 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, 36970 [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).

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

8 Findings of Fact and Decision 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 their unilateral placement provides every service necessary to maximize the student's potential, but rather, must demonstrate that the placement provides education instruction specially designed to meet the unique needs of a student (M.H., 685 F.3d at 252; Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 365). 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 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).

VII. Additional Findings of Fact and Discussion

9 Findings of Fact and Decision

In her DPC, the Parent alleged that she paid out of pocket for academic enrichment for the Student to address learning loss and was seeking reimbursement from the District, as well as alleging a denial of additional hours with a SETSS teacher and requesting continued 1:1 instructional support for 2 hours per week (see DOE-1; P-J; DOE-2; P-K).

A. FAPE

Based on a thorough and independent review of all the documentary evidence and testimony, as further discussed below, I find that the District offered the student a FAPE as required by Federal and State law. As such, I decline to grant the Petitioner any requested relief and am dismissing the entire consolidated DPC with prejudice.

a. Appropriateness of IEP

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]), 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]).

At the hearing on the merits, the DOE offered credible testimony from a DOE Special Education teacher who participated in the creation of the student’s 2022-2023 IEP (DOE-14). The Special Education teacher testified that the recommendations contained within the students September 2022 IEP were appropriate for the student to receive an educational benefit (DOE-14-1). The Special Education teacher further testified to considering putting the student in a 12:1 class but that the parent wanted the student in an ICT classroom (DOE-14-1). The Special Education teacher testified to the assessments utilized in generating the IEP and the recommended supports provided, which include an ICT class setting with the support of a special education teacher, a full-time 1:1 paraprofessional, SETSS services two times a week for ELA, SETSS services two times a week for Math, Physical Therapy two times a week, and Speech-Language Therapy three times a week (DOE-14-2). The Special Education teacher further testified to the student’s need for a 1:1 paraprofessional (DOE-14-2). The Special Education teacher also testified that the student has improved academically this school year and is making progress (DOE-14-2).

At the hearing on the merits, the DOE also offered credible testimony from another DOE Special Education teacher who works with the student (DOE-15). Special Education Teacher 2 testified to the ample support the student is receiving from Special Education Teacher 2, including reading and math strategies, as well as extra support provided to the student as a result of Covid (DOE-15-1). Special Education Teacher 2 testified that the student does not need additional SETSS because the student receives so much support in the SETSS program in school and after school by a paraprofessional, and that extra private support is not needed because the student receives so much support in school and has been making progress (DOE-15-1).

10 Findings of Fact and Decision

In reaching my conclusions below, I give considerable weight and deference to the District’s witness testimony in finding that the District’s recommendations are appropriate and that the student does not need additional SETSS. Furthermore, even though the District adopted many of the private evaluators’ recommendations, I am not inclined to afford the private evaluators’ opinions and recommendations any greater weight than the judgment of district staff, which generally is afforded some amount of deference (see Lessard v. Wilton Lyndeborough Coop. Sch. Dist., 592 F.3d 267, 270 [1st Cir. 2010] [noting that "the underlying judgment" of those having primary responsibility for formulating a student's IEP "is given considerable weight"]; J.E. & C.E. v. Chappaqua Cent. Sch. Dist., 2016 WL 3636677, at *16 [S.D.N.Y. June 28, 2016], aff'd, 2017 WL 2569701 [2d Cir. June 14, 2017], citing E.S. v. Katonah-Lewisboro Sch. Dist., 742 F. Supp. 2d 417, 436 [S.D.N.Y. 2010] ["The mere fact that a separately hired expert has recommended different programming does nothing to change [the] deference to the district and its trained educators"], aff'd, 487 Fed. App'x 619 [2d Cir. July 6, 2012]; Z.D. v. Niskayuna Cent. Sch. Dist., 2009 WL 1748794, at *6 [N.D.N.Y. June 19, 2009] [explaining that deference is frequently given to the school district over the opinion of outside experts]).

The Special Education teachers’ credible testimony is further corroborated by the IEPs generated by the CSE, which were procedurally and substantively valid, and reasonably calculated to enable the student to receive educational benefits (see generally DOE-4; DOE-6; DOE-10).

On September 23, 2022, the District generated a thorough and exhaustive IEP for the student, classified the student as Learning Disability, and recommended a placement in a NYC DOE non-specialized school with appropriate supports and services (DOE-4). In developing its recommendations for the student’s IEP, for the student’s present levels of performance and individual needs, the District reviewed numerous evaluation results, including the student’s March 2022 Neuropsychological Evaluation (DOE-4-1). Upon reviewing the available records, the CSE concluded that with related services and placement in an ICT 2 classroom, as well as specific accommodations, the student will be able to access instruction in the general education classroom (DOE-4).

As mentioned in the September 2022 IEP, the parent’s concerns were noted, and significant discussion was devoted to the additional supports recommended for the student to support the student’s academic needs and progress (DOE-4-33). Other options were considered by the IEP team, such as related services only and special classes with smaller student to teacher ratios (DOE-4-33-34). These other options were rejected because it was determined by the IEP team that the student would be able to receive instruction in an integrated co-teaching class and a more restrictive class setting was rejected by the student’s mother (DOE-4-34).

In formulating its IEP recommendations, the CSE established numerous specific measurable annual goals in expressive language skills, auditory comprehension skills, speech

2 State regulation describes ICT services within the continuum of services as the "provision of specially designed instruction and academic instruction provided to a group of students with disabilities and nondisabled students" (8 NYCRR 200.6[g]). According to State regulation, ICT services minimally require the assignment of a special education teacher and a regular education teacher (8 NYCRR 200.6[g]2]).

11 Findings of Fact and Decision intelligibility, Physical Therapy, decoding skills, word problems, comprehension skills, writing, phonological awareness, and memory and processing of auditory information, all designed to meet the student's needs resulting from the student's disability and to enable her to make progress in the general education curriculum (see generally DOE-4-13-25).

To accomplish all these goals, the CSE recommended the following special education programs and services: Integrated Co-Teaching Services in ELA, Math, Social Studies, and Sciences, Special Education Teacher Support Services (“SETSS”) in Math and ELA, as well as related services of Physical Therapy and Speech-Language Therapy multiple times per week (DOE-4-26-27). The CSE further recommended numerous testing accommodations for the student to include extended time and on-task focusing prompts (DOE-4-28).

Having conducted a thorough independent review of the IEP, I find that the goals and management needs portion of the September 2022 IEP provides the supports necessary to address the student's unique challenges and the ICT program would provide the necessary small group and direct instruction to address the student's deficits, while allowing the student to interact with typically developing peers.

A thorough independent review of the September 2021 and February 2020 IEPs generated for this student likewise show that the District provided the supports necessary to address the Student’s unique challenges in previous years (see generally DOE-6; DOE-10).

In sum, the record reflects that the CSE developed thorough and exhaustive IEPs that included a statement of the student’s present levels of academic achievement and functional performance, reviewed the recommendations of numerous individuals, established measurable annual goals designed to meet the student's needs resulting from the student's disability and to enable her to make progress in the general education curriculum, and provided the use of appropriate special education services, all in compliance with Federal and State law.

For the reasons stated above and contained within the record, I do not find that any of the District generated IEPs are substantively deficient in any way. I find that the IEPs are all reasonably calculated to enable the student to make progress appropriate with her abilities and I also find that the IEPs establish annual goals designed to meet the student's needs resulting from the student's disability and enable her to make progress in the general education curriculum. Therefore, I find that the IEPs developed for the student provided the student with a Free Appropriate Public Education in compliance with Federal and State law.

b. CSE Procedurally Valid

Upon a thorough review of the record, I find that the record supports the conclusion that the IEPs generated by the District were procedurally valid and that the parent was provided with prior written notice (see generally DOE-4; DOE-6; DOE-7; DOE-8; DOE-10; and DOE-11).

For the reasons discussed above and contained within the record, I find that the district offered the student a FAPE as required by Federal and State law and that the student’s IEP was appropriate and reasonably calculated to enable the student to make progress appropriate with 12 Findings of Fact and Decision her abilities. As such, I decline to grant the Petitioner any requested relief and am dismissing the consolidated DPC in its entirety with prejudice.

Having found that the district offered the student a FAPE, I need not reach the issues of whether the private educational services obtained by the parents were appropriate for the student or whether equitable considerations supported the parent's request for relief and the necessary inquiry is at an end.

However, for the sake of thoroughness and completeness of the record, I have reviewed all the evidence in the hearing record and undertaken an analysis regarding the remaining two prongs in the Burlington-Carter analysis.

B. Unilateral Placement

Had I found a violation of FAPE and moved onto the second prong of the analysis, I would not have found that the parent sustained her burden of proving the unilateral placement was appropriate.

The question of whether the parent’s unilateral placement was an appropriate unilateral placement is principally determined by analyzing whether the combined program provided "educational instruction specially designed to meet the unique needs of [the student]" (Rowley, 458 U.S. at 188-89; see Gagliardo, 489 F.3d at 115; Frank G., 459 F.3d at 365).

A review of the hearing record establishes that the evidence submitted by the parent in this case was insufficient to satisfy the parent’s burden to establish the appropriateness of the unilateral placement.

Although not dispositive, the hearing record also fails to contain any evidence to support a finding that the student made progress at the unilateral placement. With respect to the student's progress, a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78, 2013 WL 1277308 [2d Cir. Mar. 29, 2013]; D.DS. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81, 2012 WL 6684585, [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]; see also Frank G., 459 F.3d at 364). However, a finding of progress is, nevertheless, a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).

Based upon the foregoing, the hearing record fails to demonstrate sufficient evidence describing how the unilateral placement addressed the student's needs and how the program is reasonably calculated to confer educational benefits on the Student. Therefore, I find that the 13 Findings of Fact and Decision parent’s unilateral placement was not appropriate and that the parent failed to sustain her burden of proof.

C. Equitable Considerations

The final criterion for a reimbursement award would have been that the Parent’s claim be supported by equitable considerations. For the reasons discussed below, I would not have found that equitable considerations support a claim for reimbursement and would have denied reimbursement on equitable grounds.

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 also 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 10 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. § 14129(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). Parents of students enrolled

14 Findings of Fact and Decision in private school are not exempted from 10-day notice requirements (S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-63 [S.D.N.Y. 2009]).

The Second Circuit has recently reiterated that "[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" and that "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]).

The record fails to contain any evidence that the parent provided the District with notice of the parent’s intent to unilaterally place the student at the Eye Level academic enrichment tutoring program beginning as early as July 2020 and seek reimbursement from the District, as is required by law. Notwithstanding any of my findings above, based solely on the parent’s failure to provide proper notice in compliance with statutory mandate, I would have denied reimbursement entirely on equitable grounds and found that the equitable considerations weigh against any award of reimbursement.

While it is axiomatic that the parent here loves this student and wants what is best for her, it bears repeating that 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).

VIII. Conclusion

In reaching my conclusions above, I have considered all of the testimonial and documentary evidence presented by both parties, and carefully marshaled and weighed all of the evidence in the hearing record before me.

I have reviewed all of the Petitioner’s remaining contentions contained within the consolidated DPCs and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Petitioner’s remaining claims not discussed herein are all dismissed with prejudice.

FOR THE REASONS SET FORTH ABOVE, THE MARCH 22, 2023, AND APRIL 3, 2023, CONSOLIDATED DUE PROCESS COMPLAINTS ARE DISMISSED WITH

PREJUDICE.

DATED: SO ORDERED

6/9/2023 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

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 proceedings 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.

IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD

I, Dustin Johnson, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record were represented to me to be either the original or a true copy of the original materials that were provided to me in this matter.

DATED: CERTIFIED BY

6/9/2023 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

EXHIBITS

REDACTED

Footnotes

[4] Findings of Fact and Decision

[5] Findings of Fact and Decision deadlines, those set in this sort of administrative proceeding were set to ensure a fair and expedited process, not a summary 'gotcha' game. No prejudice from the failure to notice…testimony five days before the hearing (as opposed to the four days' notice given before her testimony) was articulated"]).

[6] Findings of Fact and Decision Two purposes of the 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 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, 206-07 [1982]).