New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 247250

Student's Name: Redacted

School District: Redacted

Impartial Hearing Officer: Michelle S. Babbitt

Date of Filing: 4.3.23

Hearing Requested by: Parent

Date of Hearing: 6.12.23 and 6.28.23

Record Close Date: 8.22.23 Date of Post Hearing Written 8.18.23 Summation:

NAMES AND TITLES OF PERSONS WHO APPEARED ON 6.12.2023:

For the Student:

Redacted, Esq. (hereinafter referred to as “Parent’s representative”) Redacted, Program Director at Private School (hereinafter referred to as “Witness #1”) (affidavit in lieu of direct testimony and cross-examination) Redacted, Parent (hereinafter referred to as “Witness #2) (affidavit in lieu of direct testimony and cross-examination)

For the Department of Education (“DOE”): Redacted, Esq., Agency Attorney (hereinafter referred to as “District’s representative”)

NAMES AND TITLES OF PERSONS WHO APPEARED ON 6.28.2023:

For the Student:

Redacted, Esq (hereinafter referred to as “Parent’s representative”) Redacted, Neuropsychologist (hereinafter referred to as “Witness #3”) (affidavit in lieu of direct testimony and cross-examination

For the Department of Education (“DOE”): Redacted, Esq., Agency Attorney (hereinafter referred to as “District’s representative”)

Date of Decision: 8.23.23

BACKGROUND AND PROCEDURAL HISTORY

Petitioner filed a Due Process Complaint on 4.3.23 against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”). I was appointed as the impartial hearing officer on 4.11.23. I held a Prehearing Conference on this matter on 5.16.23. The District representative stated that he is still investigating the case. Therefore, I directed that the DOE shall advise the Parent and this tribunal of its position with respect to the allegations and requested relief in the DPC by sending an email to both Parent and me on or before the close of business (5:00 p.m.) on 5.26.23. The parties selected 6.12.23 from 1:00 p.m.-5:00 p.m. for the hearing on the merits. Parent anticipated putting on three witnesses (the parent, one witness from the Private School, and the psychologist) and intends to submit affidavits in lieu of direct testimony. The DOE anticipated putting on two witnessesone to address the educational program and one to address the placement (IHO Exhibit 2).

On 5.26.23 the District sent an email stating that “[p]ursuant to IDEA 300.503 and 300.508(e), the prior written notice has previously been provided to parent, and as such it constitutes the due process response.” (Prior Written Notice at IHO Exhibit 3).

Participating in the hearing were Parent’s Representative and the District’s representative.

HEARING

At the beginning of the 6.12.23 hearing, I confirmed the District’s position. The District representative stated they were conceding Prong 1, not introducing any documents as disclosure, and not presenting any witnesses. The District representative also stated that they were not going to present any Prong III issues (Tr. 4- 5, 12-13, 63).

Parent sought to admit Exhibits A through P into evidence. There was no objection to the admission of the documents by the District, although the Parent did not disclose them in a timely manner. Exhibits A through P, inclusive, were admitted into evidence. Exhibit Q, an affidavit from a witness, was not admitted into evidence as it was not signed nor notarized (Tr.5, 8-10).

The District waived their right to make an opening statement (Tr. 10). The Parent made an opening statement describing the Student, her challenges, and how the unilateral placement meets the educational needs of the Student (Tr.11-12). The District stated they were not presenting any witnesses (Tr. 12-13).

In response to this tribunal asking questions concerning an IEP, both Parent’s and the District’s representatives stated that neither party had disclosed the current IEP. I requested that the District provide a copy of the IEP for clarification, completion, and background as to the Student, and I would mark it as IHO Exhibit 1(Tr. 13) (IHO Exhibit 1).

The hearing continued 6.28.23.

Parent submitted a closing brief on 8.18.21(IHO Exhibit 4). The District did not submit a written summation, nor did they make a closing on the record. On 8.21.23 the District sent an email stating: “The DOE is going to rely on the record for the closing but will note the following from the transcripts:

June 12, 2023; Page 18-Witness Redacted: Q: Okay can you describe, well, Redacted class, the size of it and how it’s grouped.

A: Sure, Redacted is placed in a 10:1:2 classroom ratio.

June 28, 2023; Page 46-Witness Redacted:

A: But at the time I saw her, she was in a, she was in a 10:1:2, I believe. And that felt like too big for her. She really struggled with transitions in that setting” (IHO Exhibit 5).

FINDINGS OF FACT AND DECISION

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

The Student has been diagnosed with Other Specified Attention Deficit/ Hyperactivity Disorder (“ADHD”) and Language Disorder (Exhibit C-5). She also meets the criteria for Language Processing Disorder and Developmental Articulation Disorder and has significant developmental challenges that impact her functioning in school (Exhibit D-1-2). The DPC was filed for the 2022-2023 school year, during which time the Student was five years old and attended kindergarten at the Private School (Exhibit P-1).

Witness #1 testified: “As program director, I help develop the curriculum, I supervise the teacher, and I support the classroom and classroom management, curriculum implementation and read the reports and support the families as needed as well (Tr. 17; Exhibit O-1). According to Witness #1, the Private School “is a 12-month specialized private school for students who have language-based learning disabilities, speech and language impairments, executive functioning delays, attentional deficits, learning difficulties, emotional regulation and sensory challenges as well as students who are diagnosed with autism spectrum disorder” (Exhibit O-2). The Private School has a 6:1:2 and a 10:1:2 for our school-age students. “Students in our school-age 6:1:2 classes are students who have more difficulties with language, attention, regulation, and cognition, requiring a significant amount of support to learn and participate in classroom activities. Although the school aged students placed in our 10:1:2 classes are more independent, they also struggle with deficits in attention, regulation, and language, which impacts their learning” (Exhibit O-2-3).

Witness #1 stated the Student:

was placed into the 10:1:2 classroom because of her cognitive potential and her social interest. [The Student’s] placement into this class size is appropriate because she is capable of learning academic concepts when provided with a structured environment with minimal distractions, decreased language demands and frequent reminders to increase her attention to the task. Deficits in expressive and receptive language, and challenges with attention, self-directed behaviors, executive functioning skills, fine motor and sensorimotor skills, impact [the Student’s] academic and social functioning across all settings. She requires individualized support to participate appropriately and learn new academic concepts. (Exhibit O-4).

“The Student’s classroom schedule for the 2022-2023 school year is broken down into 15-minute increments throughout the day and includes morning meetings, literacy, math, science, and social studies instruction. Although some activities last longer than 15-minutes, the schedule is broken into 15-minute increments to accommodate the needs of students who have difficulty sustaining their attention for extended periods of time” (Exhibit O-4-5). Witness #3 opined that the 10:1:2 classroom size was “too big” for the Student (Tr. 46). “She really struggled with transitions in that setting. So, I wanted to make sure that she had a small student to teacher ratio based on, based on, you know, what I knew about her and, and, and the additional services and supports that she would be -- and without, without capping her or limiting the, the types of services or placements she would be in the following year” (Tr. 46-47). Witness #3 stated that it was “outside the scope of [her] practice” to recommend a class size as the amount and type of related services would affect her recommendation (Tr. 47-48). On re-direct, when questioned by the Parent’s representative as to the “maximum ratio between students and teachers that you thought was appropriate for [the Student] at this time” Witness #3 responded “[t]he maximum would be about three -- no more than three students to one te- one adult in the classroom” (Tr. 50). The 7.7.22 letter provided by Parent from a Division of Developmental Behavioral Pediatrics doctor at Private Hospital also opined that a 12:1:1 classroom recommended in the IEP was not appropriate for the Student. Notwithstanding, no recommendation for a classroom size is set forth in the letter, except to say the classroom size should be “small.” (Exhibit D-2). Witness #3 recommended “push-in services or wraparound services where her speech and language and OT services are embedded throughout her program without pull out. She does have her -- significant challenges with transitions and pull-out services would be -- would not be -- would essentially impair her engagement in the rest of the classroom and with her peers” (Tr. 49).

In both Witness #3’s affidavit and her report, Witness #3 indicated that the Student has difficulty remaining still and staying seated (Tr.52, Exhibits C-4). In her report, Witness #3 described the Student as follows: had a very short attention span and required a great deal of scaffolding and frequent reinforcers. When working, [the Student] was restless, had difficulty staying seated, and was highly active. She needed frequent repetition of test instructions and test items. She struggled to sustain her effort and needed a variable schedule of reinforcement to attend and respond to test items. Having a bite of Kinder Joy eggs following every few responses helped to maintain her motivation, focus, and task persistence. Low stamina and short attention span led her to need a break after 10 to 15 minutes of work. [The Student] also benefitted from frequent movement breaks. (Exhibit C-4). Witness #3 noted that [f]irst [the Student] shows weaknesses in her ability to regulate her attention and activity level. She has a short attention span, has difficulty remaining still even for short periods of time, and has marked difficulty regulating her behaviors and with inhibitory control (Exhibit C-5 (emphasis provided by Witness #3 in her evaluation). Witness #3 opined that the Student exhibited “clinically meaningful challenges that substantiate an Other Specified Attention-Deficit/Hyperactivity Disorder” (Exhibit C5). The Student’s challenges with attention were also noted by the Private School (Exhibit K1-2) and the Doctor from the Private Hospital (Exhibit D-1). Witness #3 was asked by this tribunal how long she thought it was appropriate for the Student (given her profile and characteristics) to be on a bus from her home to school, and from school to her home. After much back and forth, Witness #3 stated: “I think with supervision, with an- another adult on the bus with her, supervising her, I think she can be on the bus for, for 30 minutes with adult supervision, just to, just to ensure safety and monitoring her attention and hyperactivity” (Tr. 55). Witness #3 made recommendations to the Parent for specific private schools in Manhattan, Queens, and Long Island (Tr. 56-57). Witness #2 stated that the Student needed a 12-month program yet enrolled the Student at the Private School in a ten-month program in a 10:1:2 classroom (Exhibit G-1 and Exhibit F-5 (the Student’s “complex set of disabilities necessitates placement in a small self-contained special education class within a special education school on a 12-month basis to meet her learning needs”). Considering the foregoing, and as more fully discussed below, I find that a) the DOE did not offer the Student a FAPE for the 2022-2023 school year; b) the Private School offers the Student specially designed instruction sufficient to meet the Student’s needs and c) the equities do not wholly favor the Parent.

Burden

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in a parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. ^[1]

Prong I

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE").^[2] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”).^[3] A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits.^[4] In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” 5

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden at the hearing. The District representative stated they were conceding Prong 1, not introducing any documents as disclosure, and not presenting any witnesses. The District representative also stated that they were not going to present any Prong III issues (Tr. 4- ^[5], 12-13, 63).

Parent had alleged the following in its DPC:

In reviewing the IEP, it is apparent that it does not fully or adequately describe [the Student] or the significant amount of supports and modifications that she requires to make progress. The goals are not realistically achievable in the recommended setting. Similarly, the management needs are insufficient and not reflective of the supports that [the Students] needs. A teacher tasked with implementing the IEP would not have an adequate understanding of [the Student] to do so. Furthermore, [the Student] has language delays and the IEP fails to provide [the Student] with enough support for her speech language deficits; she requires a special education school specifically for students with attentional and language-based learning disabilities. The IEP team reduced [the Student’s] speech support from 3x 30 sessions per week that she received as a CPSE student to 2x30 minute sessions per week. This impacts her in all curricular areas and needs to be addressed throughout the entire school day; however, this is not sufficiently addressed in her IEP. (Exhibit A-2).

The District did not address any of the foregoing deficiencies alleged by the Parent.

There was no testimony to explain the CSE’s decisions and recommendations from the IEP meeting conducted in 2022, let alone a “cogent and responsive” explanation (IHO Exhibit 1).^[6] The DOE failed to provide a witness to explain its recommendations or respond to the deficiencies alleged by Parent. ^[7]

Prong II

A private school placement must be "proper under the Act."^[8] This means that the private school must offer an educational program that meets the student's special education needs.^[9] Parents seeking tuition reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”^[10] 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.” ^[11]

Parents need not show that the placement provides every special service necessary to maximize the student's potential.^[12] 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.”^[13] A private placement is appropriate if it provides instruction specially designed to meet a student’s unique needs. ^[14]

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 benefits, 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. ^[15]

Private School was an appropriate educational program for the Student

The Private School addresses the Student’s challenges with the following:

The Student was placed in a class with a 10:1:2 maximum ratio that had 6 students enrolled in the class (Exhibit O-3). Her classroom schedule was broken down into 15-minute increments and included morning meetings, literacy, math, science, social studies, physical education, music, and art (Exhibit O-4-5). The Student received the related services of Occupational Therapy, Speech and Language Therapy, and Counseling in 30-minute increments (Exhibit O-5). As a result of the small, supportive program at the private School, over the course of the 2022-2023 school year, the Student made progress across all domains, including academic, social-emotional, communication, and visual and fine motor skills (Exhibit O-7-8).

The Private School adheres to the New York State Early Learning Standards and Common Core Standards while also differentiating instruction to create individualized learning programs that meet the educational needs of each student (Exhibit O-3). The Student was placed in the 10:1:2 classroom because of her cognitive potential and social interest. The Student was capable of learning academic concepts when provided with a structured environment with minimal distractions, decreased language demands, and frequent reminders to increase her attention to the task. Deficits in expressive and receptive language, and challenges with attention, self-directed behaviors, executive functioning skills, fine motor, and sensorimotor skills, impact the Student’s academic and social functioning across all settings. She required individualized support to participate appropriately and learn new academic concepts (Exhibit O-4). The Student made progress as follows: • Literacy skills improved. By the end of the school year, the Student could identify the initial sounds in words, write lowercase letters, encode CVC words, and decode and blend CVC words (Exhibit O-7). • In math, she could add and subtract within 10 at the pictorial and concrete levels (Exhibit O-7). • [The Student] was provided opportunities to develop and practice her socialemotional skills during Counseling sessions and in class (Exhibit O-7). • [The Student] made steady progress in her overall communication skills. She was able to answer basic who, what, and where questions in conversations and while listening to books (Exhibit O-8; Tr. 20-25, 29)). Witness #1 testified: I have observed [the Student] participating more in her classroom, her language has improved, she's using more language and is able to organize it more appropriately. Her regulation has also improved, she is now able to sit and sustain attention for longer periods of time during the school day and during individual activities and academic periods. She also has made progress in her mathematical skills and her literacy skills, which has been assessed through the assessments that are connected to the programs that we use. So, for math, we use the Math in Focus program, and [the Student] gets chapter tests and we've seen notable growth in her academics based on those chapter assessments, where she is now able to count and able to do simple addition problems and subtraction problems within ten. And then in the literacy domain, we also have assessments that are connected to the curriculum and we are able to also -- we also do inventory assessments periodically throughout the year and we have noticed improvement in her ability to identify letters and sounds and being able to sound out CBC words and is beginning to blend those sounds together to read CBC words that contain the short A sound. (Tr. 20).

The Student receives “occupational therapy two times individually and one time in a group. She receives speech and language therapy two times individually and one time in a group. And counseling one time individually and two times in a group” (Tr.22). At the hearing, the District stated that the unilateral placement was not an appropriate placement. However, the District elected not to submit a written summation and memorandum, although they agreed to do so on the record (Tr. 63-65). The District submitted an email highlighting that the class size ratio in the unilateral placement was one that was rejected by the Parent’s neuropsychologist (IHO Exhibit 5). It is not this tribunal’s responsibility to craft arguments on behalf of a party. ^[16] The Private School was an appropriate educational placement for the Student to make meaningful progress.

No showing that a 12-month program was warranted for the 2022-2023 school year

The IEP recommends a 10-month educational program (IHO Exhibit 1). The Parent stated that the Student requires a 12-month educational program yet placed the Student in a 10-month educational program (Exhibit G-1 and Exhibit F-5 (the Student’s “complex set of disabilities necessitates placement in a small self-contained special education class within a special education school on a 12-month basis to meet her learning needs.”) There is no evidence that the Parent enrolled the Student in an educational program for the summer of 2022 despite the recommendation of the pediatric physician (Exhibits D-2). In the DPC there is no request for a 12-month program nor is such request in the Parent’s written brief (Exhibit A and IHO Exhibit 2).

The facts of the case do not support a twelve-month program [12-month special services and/or programs in accordance with their need to prevent substantial regression. Requires July/August programs to operate for at least 30 days Approved July and August programs must operate for six weeks and shall be funded for 30 days of service. See Ed L§§4402(2)(a), 4403(17); 4410(5)(h). 8 NYCRR §200.1(aaa); 200.1(eee); 200.6(k); 200.16(i)(3)(v) Ed. L. §4408(1)].

Extended school year services are defined as:

"special education and related services that (1) [a]re provided to a child with a disability . . . [b]eyond the normal school year of the public agency; . . . [i]n accordance with the child's IEP; and . . . [a]t no cost to the parents of the child; and (2) [m]eet the standards of the [state education agency]." 34 C.F.R. § 300.106. [*49] Students are entitled to ESY services if "because of their disabilities, [they] exhibit the need for a 12-month service and/or program provided in a structured learning environment of up to 12 months duration in order to prevent substantial regression." 8 N.Y.C.C.R.R. 200.6(k)(1)(v) . Substantial regression is defined as: a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year. 8 N.Y.C.C.R.R. 200.1(aaa) (emphasis added).” ^[17] Parent has not produced any evidence of regression. They have failed to produce any evidence that the Student’s regression was atypical—that her academic skills would regress after summer vacation or another extended break to the point that they could not be recouped in twenty-to-forty school days. (Extended School Year Programs and Services Questions and Answers,"http://www.p12.nysed.gov/specialed/finance/2011QA.pdf (emphasis added); see also Application of a Child with a Disability, Appeal No. 08-078, at 21-22; Application of a Child with a Disability, Appeal No. 07-089, at 8 n.3. Id.)

The burden of production rests with the parent of the child seeking the extended school year.^[18] Parent’s Representative provides no legal support for Parent’s request for an extended school year (See IHO Exhibit 2).

Accordingly, neither the facts nor the law support Parent’s request for a twelve-month program for the Student.

Equities

Even if a parent establishes a right to reimbursement under the IDEA, “courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant.”^[19] In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether (1) the parent provided the Department with adequate notice of the withdrawal, (2) the amount of private-school tuition was reasonable, (3) the parent should have availed herself of need-based scholarships or other financial aid from the private school, and (4) there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or the arrangement with the school was fraudulent or collusive in any other respect. ^[20]

There is no evidence that the Parent obstructed or was uncooperative in the District’s efforts to meet its obligations under the IDEA. The DOE did not present evidence that the Parent hindered its efforts to provide the Student a FAPE.

It bears noting that the IEP meeting for the 22-23 school year was 5.31.23 (IHO Exhibit 1). Parent first reached out to the District to express their discontent with the IEP on 7.12.23, approximately one and one months after the IEP meeting (Exhibit F-5). The Parent’s actions in placing the Student in the Private School are contradictory to Parent’s assertions and the recommendations of their clinicians. Specifically, the Parents allege that a 12:1:1 class size is “much too large” (Exhibit B-2) and the Student needs a 12-month educational program (Exhibit E-1, F-5), yet the Parents placed the Student in a 10-month educational program in a 10:1:2 class (Exhibit G, 6.12.23 Tr. 18). The documents from the pediatrician and neuropsychologist and the testimony of Witness #3 stated that a 10:1:2 class was too large for the Student (“But at the time when I saw her, she was in a, she was in a 10:1:2, I believe. And that felt like too big for her. She really struggled with transitions in that setting. So, I wanted to make sure that she had a small student to teacher ratio…” (Tr. 46-47)). Witness #3 testified that (a) an appropriate class size for the Student should be no more than 3 students to 1 teacher (Tr. 50) and (b) the related services should be push in, rather than pull-out because the Student has difficulty with transitions. ^[21]

Although the record is not wholly clear as to the delivery of all related services, OT is outside the Private School, at a third-party site, Redacted (Tr. 24-25). The neuropsychologist recommended that the related services should be push in for the Student. Further, there was no testimony or documentary support showing that the list of recommendations to target attention and executive functioning skills set forth by Witness #3 were instituted at the Private School (Exhibit C-7).

The above are deficiencies in the Private School program.

Next, although Parent signed an enrollment contract for the ten-month school year on 8.10.23, it is reasonable to assume that they made an application to the Private School and a determination well before that date. In fact, the Parent stated that they went to visit the Private School in July 2022 (Tr. 29). However, the record demonstrates that they did not advise the District of their intention to send the Student to the Private School until 8.24.23, two weeks after they signed an enrollment contract and certainly not enough time to afford them the right to cancel the enrollment contract (Exhibit G-1). Parent testified that he had the right to terminate the enrollment contract if the District offered the Student an appropriate placement, but according to the contract itself, the right to terminate had to be exercised prior to 8.30.23 (Exhibits G-1 and P-4). The Parent’s right to terminate the contract terminated on 8.30.23, prior to the District’s ten-day period to have offered the Student a placement. This timing was solely within the Parent’s control. The issuance of the ten day notice just met the statutory requirement and the timing (at the end of the summer and prior to a holiday weekend) appears calculated to deprive the district of the opportunity, before the student was removed "to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." ^[22]

Although one of the Student’s deficits is based on attentional deficiencies and she has trouble staying still and remaining seated (Exhibit C-10, K-9, Tr. 51), the Parents chose to send the Redacted -year-old Student to a Private School in Manhattan, a 1.5 hour bus ride, from their home in Redacted.^[23] The Student then must return home to Redacted from Manhattan, another 1.5 hour commute, which adds three hours round-trip to the Student’s school day (Tr. 33). Witness #3, the Parents’ neuropsychologist, testified that any more than a thirty-minute ride on a bus for the Student was not appropriate or safe (Tr. 52-55) (“I think with supervision, with another adult on the bus with her, supervising her, I think she can be on the bus for, for 30 minutes with adult supervision, just to, just to ensure safety and monitoring her attention and hyperactivity.” (Tr.55)). The Student’s bus ride each way is three times that recommended by the Parent’s neuropsychologist. It is doubtful that a 30-minute commute between the boroughs could be achieved. The Parent himself noted the Student’s “high level of distractibility” and “significant attention … deficits” (Exhibit P-1-2). The Parent admitted that the “school is very far away from our home” (Exhibit P-4). The Parent did not request any relief for transportation either in the DPC or at the hearing. The Parent testified that two other Private Schools in Manhattan rejected the application for Student’s admission, stating that the Student was too distracted for them to meet her needs (Tr. 35-36). The Parent’s chosen unilateral placement was contrary to the recommendations of the Parent’s clinicians. Similarly, the transportation component, a related service under the IDEA, and part of the educational placement is inappropriate. There was no testimony by Parent that they sought placement at a school closer to their home to better address the Student’s commute considering her attention deficit deficiencies and age. Witness #3 testified that she made a list of recommended schools, with some in Queens and Glen Cove, Long Island (Tr. 56-57).

Witness #3 stated that he asked for a reconvene based on the letter from the doctor which contained “new information.” A review of that 7.6.22 two-page letter, which does not state that any diagnostic tests or evaluations were conducted, shows that the assertions therein are conclusory, without any objective or scientific basis (Exhibit D-2). The letter does not attach “supporting documentation” nor does it “expound” on the Student’s needs, as Parent states in their 7.12.23 letter to the CSE (Exhibit E). The 2-page letter does not contain any information not contained in the 22-page neuropsychological evaluation dated 3.24.23 (Exhibit C). It appears that the Parent affirmatively made efforts to create a record.

While the above factors may support a finding that the educational program was not appropriate for the Student, I am taking a less strident approach. Based on the totality of the foregoing, which demonstrate the unreasonableness of the Parent’s actions, I exercise my discretion under the circumstances in this case to reduce reimbursement for the Student's unilateral placement by 15 percent of the tuition (15% of $77,000=$11,550). 24

The Parent has requested an award of direct tuition payment to the Private School. The record demonstrates that the Parent is liable for tuition to the school but asserts that they lack the financial means to pay the tuition in advance and await reimbursement (Exhibit G, Tr. 32-33). 25 The enrollment contract obligates Parent financially in the amount of $77,000.00 for the 2022-2023 school year (Exhibit H). The Parent provided proof of income and testimony during the hearing detailing Parent’s financial means to support their request for prospective funding (Exhibits N and Tr. 36).^[26] The Parent stated they have a high cost of living, including housing expenses, medical expenses, student loans (Tr. 32-33). Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. ^[27] Having reviewed the Private School’s enrollment contracts and accompanying financial information, and the affidavits submitted by the Parents, I find that the unilateral tuition does not exceed the Parent’s income but am constrained to rely on their representation that there expenses prevent them from making any payment more than the down payment deposit. The District did not cross-examine parent on this issue. Equity demands that the DOE fund Student’s Private School tuition at the aforesaid reduced rate.

24

See Application of a Student with a Disability, SRO 23-056. 25 The testimony was conclusory rather than detailed: “We have a very high cost of living. Living in New York City, we have substantial expenses related to housing. We have medical expenses. [The other Parent] has a student loan that is large. We have a number of expenses associated with parenting [the Student] as a special needs child. Evaluations, development, pediatricians, none of which are covered by insurance. And so, there are a lot of out-of-pocket, a lot of out-of-pocket expenses for us. Additionally, [the other Parent] is an Redacted, and his income is variable and had been impacted by the COVID-19 pandemic significantly. And you know, there's a lot, there's a lot that we're carrying and in addition to other things that are not reflected on the tax return, family assistance, things of that nature.” (Tr.32-33).

The undersigned has reviewed the Parent’s remaining contentions and finds them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, 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 Parent’s remaining claims not discussed herein are dismissed.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT

IS HEREBY ORDERED THAT: (1) Parent’s claim for tuition funding for the Private School for the 10-month 2022-2023 school year in the reduced amount of $65,450.00 for the Student’s unilateral placement is GRANTED.

(2) The District shall reimburse the Parent $10,000.00 for their payment toward the 2022-2023 tuition at the Private School.

(3) The District shall pay the Private School directly in the amount of $55,450.00 toward the 2022-2023 tuition.

Dated: August 23, 2023

Michelle S. Babbitt

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.

DISTRICT EVIDENCE

None

PARENT EVIDENCE

A. Impartial Hearing Request with Receipt 4.3.23 4 pages

B. Ten Day Notice with receipt 8.25.22 5 pages

C. Neuropsychological Evaluation 3.22.22, 3.24.22 3.17.22 22 pages

D. Developmental Pediatrician Report 7.7.22 2 pages

E. Request for IEP Reconvene – Redacted 7.12.22 1 page

F. Follow-Up Request for IEP Reconvene – Redacted 7.19.22, 8.1.22 7.18.22 5 pages

G. Enrollment Contract 8.10.22 2 pages

H. School Profile Undated 6 pages

I. Attendance Record 2.5.23 1 page

J. Class Schedule 22-23 1 page

K. Mid-Year Report 1.18.23 13 pages

L. Tuition Affidavit 2.9.23 1 page

M. Proof of Payment 8.12.22,9.2.22 2 pages

O. N Parents 2021 Tax Return 2.12.22,3.28.22 2 Testimony Affidavit Redacted Program Director 6.7.23 9 pages

P. Testimony Affidavit, Redacted, Father 6.9.23 5 pages

Q. Testimony Affidavit, Redacted, Pediatric Neuropsychologist 6.10.23 5 pages

IHO EXHIBITS

1. Individualized Education Program 5.31.22 29 pages IHO

2. Prehearing Conference Summary and Order 5.16.23 9 pages IHO

3. Prior Written Notice 6.13.22 4 pages IHO

4. Parent’s Closing Brief 8.18.23 10 pages IHO

5. Email from DOE APPENDIX Information Term Used In FOFD Redacted Student Redacted, Esq. Parent Attorney/Representative Redacted, Esq. District Attorney/Representative Redacted Private School Redacted, Program Director at Witness #1 Private School Redacted, Parent Witness #2 Redacted, Neuropsychologist Witness #3 8.21.23 2 pages IHO

Footnotes

[1] See NYS Educ. Law § 4404(1)(c); R.E. v. N.Y.C. Dept. of Educ., 694 F.3d 167, 184-185 (2d Cir. 2012), C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 835-836 (2d Cir. 2014).

[2] See 20 U.S.C. § 1400 (d)(1) (A)

[3] See 34 C.F.R. § 300.13

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

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

[6] Endrew F. Mr. P. & Mrs. P. v. West Hartford Board of Educ., 885 F.3d 735 (2d Cir. 2018). R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 185-186 (2d Cir. 2012); see also, L.O. v. N.Y.C. Dep’t of Educ., 822 F.3d 95, 111 (2d Cir. 2016) (holding that the district could not meet its burden of proof to demonstrate sufficient evaluative material was relied upon creating an IEP without testimony regarding such).

[7] See A.M. v. New York City Department of Education, 845 F.3d 523 (2d Cir. 2017) (reliance on the views of DOE witness, which were against the clear consensus of the substance of the evaluative materials present at the CSE meeting and the views of student’s evaluators and educational instructors, was error); S.B. v. New York City Department of Education, 117 F. Supp. 3d 355 (S.D.N.Y. 2015) (reliance upon testimony of one DOE representative, who never met student, over evidence by student’s own teachers and therapists, “flies in the face of reason”); W.S., individually and on behalf of A.S., v. New York City Dep’t of Educ., 188 F. Supp.3d 293 (S.D.N.Y. 2016) (placement offered by the DOE did not bear a reasonable relation to the needs of student where placement was based on opinion of a DOE representative in contrary to the evidence at IEP meeting).

[8] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); see also Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359, 370 (1985).

[9] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998).

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

[11] Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)

[12] See Frank G., 459 F.3d at 364-65.

[13] Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 115.

[14] See 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).

[15] See Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65.

[16] See, Deutsche Bank National Trust Company v Flagstar Capital Markets Corporation, 32 N.Y.3d 139 *; 112 N.E.3d 1219 **; 88 N.Y.S.3d 96 (Ct. of Appeals 2018); In the Matter of Corey Krug v City of Buffalo,. 34 N.Y.3d 1094 *; 140 N.E.3d 531 **; 117 N.Y.S.3d 157 (Ct. of Appeals 2019)

[17] D.D-S. v. Southold Union Free Sch. Dist., No. 09-CV-5026, 2011 WL 3919040 (E.D.N.Y. Sept. 2, 2011)

[18] See Brennan v. Reg'l Sch. Dist. No.1 Bd. of Educ., 531 F. Supp. 2d 245, 273 (D. Conn. 2008)

[19] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009).

[20] 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. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 [2d Cir. 2014] [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"]).

[21] See Tr. 49: “I would recommend push-in services or wraparound services where her speech and language and OT services are embedded throughout her program without pull out. She does have her -- significant challenges with transitions and pull-out services would be -- would not be -- would essentially impair her engagement in the rest of the classroom and with her peers.”

[22] See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004).

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

[26] Parent stated they are unable to pay more than $10,000 of the tuition even though the tax returns showed adjusted gross income of $262,000 (Tr. 36, Exhibit N).

[27] See e.g., Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”).