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CASE NUMBER: 598645 – NYC: 247630
CORRECTED FINDINGS OF FACT AND DECISION
Case Number: 247630 Student’s Name: REDACTED School District: REDACTED Impartial Hearing Officer: Ginger James Date of Filing: April 20, 2023 Hearing Requested By: Parent Date of Hearing: June 22, 2023 Record Close Date: August 16, 2023 Date of Decision: August 16, 2023 Time Sensitive: No Findings of Fact and Decision Case No. 247630
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 23, 2023
REDACTED, Esq., Parent’s Attorney — Student
For the New York City Department of Education: — Student
REDACTED, Esq., District Representative — Student
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 30, 2023
REDACTED, Esq., Parent’s Attorney — Student
For the New York City Department of Education: — Student
REDACTED, Esq., District Representative — Student
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 22, 2023
REDACTED, Esq., Parent’s Attorney — Student
REDACTED, — Parents
For the New York City Department of Education: — Student
REDACTED, Esq., District Representative — Student
Findings of Fact and Decision — Student
INTRODUCTION
On April 20, 2023, Parent 1 filed a Due Process Complaint (“DPC”) against the New York City Department of Education (“DOE” or “the District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), Part 200.5 of the Regulations of the Commissioner of New York State, and Section 504 of the Rehabilitation Act (“Section 504”), alleging that the DOE failed to offer Student a free appropriate public education (“FAPE”) for the 2022-2023 school year (Ex. A). In support of their claim, Parent alleges numerous procedural and substantive issues, including that the District failed to: offer an appropriate program; recommend appropriate service mandates; accurately describe Student’s present levels of academic achievement and functional performance (“PLAAFPs”); develop appropriate goals; conduct required evaluations; discuss management needs; follow the continuum of available special education services; address methodologies; and meaningfully include Parent in the development of the Individualized Education Program (“IEP”) and in the placement selection process (Ex. A-3-7; Tr. 52).[2] In addition to their allegations regarding the denial of a FAPE, Parent asserts that Private School is an appropriate placement for Student and that equities support their claim for tuition reimbursement for the school year at issue (Tr. 52-53).
Parent seeks the following relief: 1) a declaration of the denial of FAPE for the 2022-2023 school year; 2) a declaration that the violations significantly impeded Parent’s procedural and substantive rights; 3) an interim order compelling publicly funded independent educational evaluations (“IEEs”) in all areas of suspected disability; 4) an order directing reimbursement to Parent and/or direct payment to Private School for tuition for the 2022-2023 school year; 5) an order to provide Student appropriate transportation to and from school and reimbursement for any transportation
1 No personal identifying information is contained within the body of this Findings of Fact and Decision (“FOFD”). For personal identifying information, please refer to the attached Appendix. Further, this FOFD contains no references to the gender binary. The pronoun “they” is used as needed.
Findings of Fact and Decision
expenses during the school year at issue; 6) an award of attorney’s fees; and 7) any other relief deemed appropriate (Ex. A-7; Tr. 53-54).[3] In light of the foregoing and as more fully discussed below, I find that: the District failed to meet its burden to prove it offered Student a FAPE for the 2022-2023 school year; Private School offers Student specially designed instruction sufficient to meet Student’s needs; and that the equities largely support the Parent’s requested relief. As explained below, I have reduced the total amount of funding by four days to account for Parent’s failure to provide timely service of their Ten Day Notice (“TDN”). I decline to award attorney’s fees and expenses.
PROCEDURAL HISTORY AND BACKGROUND
As of April 20, 2023, the date of the filing of the DPC, Student was [REDACTED] years old and attending Private School (Ex. L-1; Ex. A-1). Student is classified as a Student with “Multiple Disabilities” (Ex. 1-1). That classification is not in dispute.
After the filing, the Resolution Period began. It ended on May 20, 2023 with no resolution meeting held (PHC Tr. 5).
On April 21, 2023, I was appointed Impartial Hearing Officer (“IHO”) for this case.
On May 23, 2023, Parent’s Attorney and District Representative (‘the Parties”) met with a Settlement Officer for a Settlement Conference and thereafter met with me for a Pre-Hearing Conference (“PHC”).[4] District Representative relayed that they would not be putting on a case,
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but expected to rest “on the disclosure” (PHC Tr. 11-12) We discussed various issues related to the hearing including remedies, burdens of proof and presentation of witnesses (PHC Tr. 10-23). As the Parties wished to explore the possibility of settlement, I scheduled a Status Conference for May 30, 2023 (PHC Tr. 5-9, 11, 23-25).
On May 30, 2023, the Parties appeared before me for the Status Conference. Parent’s Attorney relayed that they wished to proceed to hearing (SC Tr. 32-33). I scheduled the Due Process Hearing (“DPH”) for June 27, 2023 and granted the Parties’ request to extend the compliance date (SC Tr. 33-34).
On June 22, 2023, the DPH commenced.[5] The Parties addressed the issues, remedies sought and burdens of proof (Tr. 43-44, 45-46). Turning to the exhibits, District Representative explained that although they would be submitting exhibits and resting on that disclosure, they were conceding Prong One (Tr. 45).[6] District Representative sought to introduce Exhibits 1 through 3 (Tr. 46-47). Parent’s Attorney had no objection to any of the exhibits, and I admitted them into evidence (Tr. 47). Parent’s Attorney sought to introduce Exhibits A through L, which included an affidavit from the Principal and Executive Director of Private School (“Principal”) (Tr. 49-50; Ex. K). District Representative had no objection to the exhibits, nor to the content of the affidavit (Tr. 50-51), and I admitted Exhibits A though K into evidence (Tr. 50-51). Parent’s Attorney also proffered Exhibit L, a document containing the proposed direct testimony of Parent (Tr. 49-50; Ex. L). I admitted it into evidence upon Parent’s attestation to its content (Tr. 55-56). After District Representative waived their opportunity to present an opening statement (Tr. 51), Parent’s Attorney presented an opening statement (Tr. 51-54). Parent testified through affidavit and live testimony (Ex. L; Tr. 5657). District Representative declined to cross-examine Parent (Tr. 56). As neither District Representative nor I had questions for Principal, Principal testified through affidavit only (Ex. K; Tr. 58). District Representative declined the opportunity to present a closing statement (Tr. 59), before Parent’s Attorney presented a closing statement (Tr. 59).
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On August 14, 2023, in response to my request, via email, Parent’s Attorney clarified questions I had regarding Parent’s name (IHO Ex. I). I admitted those emails into evidence.
FINDINGS OF FACT
My findings of fact as explained below were made after considering all the admitted evidence, which included testimony from Principal and Parent. I also found both witnesses credible.
Student is diagnosed with: REDACTED (“REDACTED”), a REDACTED; REDACTED; developmental disorder of speech and language; specific disorder of motor function; myopia, bilateral; and other diagnoses (Ex. L-1; Ex. K-13; Ex. A-1-2). Student is non-ambulatory and nonverbal (Ex. A-2). Student experiences global delays and “struggles significantly in every way” (Ex. L-1; K-13).
Until the 2022-2023 school year, Student had attended public schools (Ex. L-1; Ex. A-2). During the pandemic, Student did not receive consistent remote services and Public School informed Parent that they could not send someone to Student’s home to work with them (Ex. A-2). Accordingly, Student did not receive a special education program or related services for much of the 2020-2021 school year and Student regressed (Ex. A-2). During the 2021-2022 school year, Public School did not fully implement Student’s IEP, including their recommended speech language therapy (“SLT”) and consistent, appropriate 1:1 paraprofessional support (Ex. A-2). Additionally, Public School did not communicate with Student’s family, including by failing to provide reports and updates on Student’s progress (Ex. A-2). Assessment scores revealed that Student physically regressed and did not progress in many academic areas (Ex. A-2-3). Student also became more irritable (Ex. A-3).
On October 22, 2021, the School Based Support Team (“SBST”) convened to conduct an annual review (Ex. A-3). Parent expressed their concerns, but the SBST continued to recommend a 12:1+(3:1) program and retained the same related services recommendations (Ex. A-3). The Findings of Fact and Decision
projected annual review date for this IEP was October 22, 2022, and thus, was the operative IEP for the start of the 12-month 2022-2023 school year (Ex. 1-1).
On June 30, 2022, Parent, sent the District a TDN (Ex. B; Ex. A-3). In their very detailed letter, Parent recounted Student’s medical background and history with the DOE (Ex. B-1-2). Parent also relayed what transpired at the October 22, 2021 meeting with the SBST, including the concerns Parent raised at that meeting (Ex. B-2-3). Among their specific concerns were that the SBST: failed to review or discuss documentary or evaluative material; failed to send IEP goal progress reports; did not discuss management needs or a Behavior Intervention Plan (“BIP”); predetermined Student’s program; did not consider or discuss other options; and failed to conduct any evaluations, including the triennial evaluation (Ex. B-3). They also relayed that the SBST failed to provide “a cogent or responsive explanation for the recommendations” or objective data to support their assertions that Student had made progress (Ex. B-30). Parent further stated that as a result of the District’s failures for the 2022-2023 school year, Parent intended to unilaterally place Student and seek funding for the tuition and reimbursement for transportation expenses if transportation was not provided by the DOE (Ex. B-3). Parent further stated they would seek compensatory education services if the District failed to provide transportation and Student missed school (Ex. B-3). The District did not respond to the TDN. Student began the 2022-2023 school year at Private School.
On May 25, 2022, Parent and Non-Testifying Parent (“Parents”) signed a contract with Private School (Ex. D). The Education Program Costs at Private School for Student for the 12-month 2022-2023 school year, running from July 11, 2022 through June 30, 2023, was $194,080 (Ex. D1; Ex. E). This includes tuition and the services of a 1:1 paraprofessional (Ex. D-1-2). The contract specifically states that Parents will be released from the Enrollment Contract if the DOE identifies an appropriate public school or state-approved nonpublic school, and Student enrolls in that school by October 15, 2022 (Ex. D-2). Further, at the discretion of Private School, Parents could have terminated the contract before Student’s first day of attendance with certain financial penalties (Ex. D-3). The contract also states that Parents may seek public finding from the school district by asserting Student’s due process rights (Ex. D-2). If Parents are “denied all or part of the Education Program Costs and any applicable additional costs due under this Enrollment Contract Findings of Fact and Decision by a final administrative or judicial decision resolving the claim for such funding, Parent understands that Parent remains responsible to pay the remaining Education Program Costs and any applicable additional costs due and owing to [Private School] . . .” (Ex. D-2). Due to “limited financial resources,” Parent made no payment to Private School and seeks direct funding to Private School for the full cost the education program in the amount of $194,080 (Ex. L-2; Tr. 56-57; Ex. E). Student began attending Private School on July 11, 2022 (Ex. K-12; Ex. D-1; Ex. E; Ex. G-2).
LEGAL STANDARDS AND FRAMEWORK
Overview of FAPE Impartial Hearing Officers (“IHOs”) are tasked with determining whether a student received a free appropriate public education (“FAPE”). See 20 U.S.C. § 1415(f)(3)(E)(i); 8 NYCRR § 200.5(j)(4)(i). That determination must be made on substantive grounds and with regard to the meeting of certain procedural requirements. Id. In guiding their decision, IHOs are bound by two purposes of the IDEA: (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and to prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and of their parents are protected. See 20 U.S.C. § 1400(d)(1)(A),(B); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 (2009); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-190 (2d Cir. 2012); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012). More specifically, the educational program must be “reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 137 S. Ct. 988, 1001 (2017).
Findings of Fact and Decision
Regarding procedural requirements, to deprive a student of a FAPE, the procedural inadequacies must have impeded the student’s right to a FAPE, significantly impeded the parent’s opportunity to participate in the decision-making process or deprived the student of educational benefits. See 20 U.S.C. §1415(f)(3)(E)(ii); 34 CFR § 300.513(a)(2) and 8 NYCRR § 200.5(j)(4)(ii).
Regarding the substantive requirement, as the words in FAPE indicate, students are entitled to an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998), quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). The IEP, which is at the center of the analysis, must address the “unique circumstances of the child for whom it was created." Endrew F., 137 S. Ct. at 1001. It must also be “likely to produce progress, not regression.” See Cerra v. Pawling Cent. Sch. Dist, 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130 (quotations omitted).
Accordingly, an IEP must: include a statement of the student's present levels of academic achievement and functional performance; establish annual goals designed to meet the student's needs resulting from the student's disability and enable the student to make progress in the general education curriculum; and provide appropriate special education and services. See generally 34 CFR § 300.320(a) and 8 NYCRR § 200.4(d)(2). The IEP must be developed in consideration of the student’s: “(1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs.” Brock v. N.Y. City Dep’t of Educ., 2015 WL 1516602, 2015 U.S. Dist. LEXIS 44254, 3 (S.D.N.Y. 2015), quoting M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d at 224 (further citation omitted). Finally, the student's recommended program must be provided in the least restrictive environment (“LRE”). See 20
U.S.C. § 1412(a)(5)(A); 34 CFR § 300.114(a)(2)(i), 34 CFR § 300.116(a)(2); 8 NYCRR
§ 200.1(cc), 8 NYCRR § 200.6(a)(1).
Overview of Unilateral Placement and Tuition Reimbursement Analysis Decisions concerning tuition reimbursement matters must focus on the seminal United States Supreme Court cases of Sch. Comm. of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359 (1985) and Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993) and their progeny.
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Read together, the seminal cases produced what is commonly referred to as the “Burlington/Carter” test which establishes the framework for inquiry. Pursuant to the test, parents who unilaterally place their children in private school will be entitled to reimbursement if: (1) the school district’s proposed placement was inadequate or inappropriate; (2) the parent’s alternative private placement is appropriate to meet the student’s needs; and (3) equitable considerations support the claim. See Sch. Comm. of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. at 369-370 and Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. at 15-16. See also Brock, 2015 WL 1516602, 2015 U.S. Dist. LEXIS 44254, 14 quoting E.M. v. N.Y.C. Dep’t of Educ., 758 F.3d 442, 451 (2d Cir 2014).
Generally, the DOE bears the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings. However, in a tuition reimbursement matter, the parent bears the burden of proof, including the burdens of persuasion and production, solely on the issue of the appropriateness of the placement. See NYS Educ Law § 4401(1)(c); see R.E. v. New York City Dep’t of Educ., 694 F.3d at 184-85. Accordingly, in a tuition reimbursement matter, the DOE bears the burden of proof on what is commonly referred to as Prong One, the provision of a FAPE. Should it be determined that a FAPE was not provided, the burden then shifts to the parent to prove what is commonly referred to as Prong Two, the appropriateness of the parentally selected placement. Thereafter a balancing of the equities must be conducted with the DOE bearing the burden of proof on Prong Three. Id.
FINDINGS OF FACT AND DECISION
PRONG ONE- THE PROVISION OF A FAPE
As to Prong One of the Burlington/Carter standard, District Representative affirmatively conceded Prong One at the DPH (Tr. 45). Therefore, I am constrained to find that the DOE failed to offer Student a FAPE for the 2022-2023 school year. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to confer a FAPE for the 2022-2023 school year.
Findings of Fact and Decision
PRONG TWO- APPROPRIATENESS OF PARENT’S PLACEMENT
Examining the totality of the evidence presented, I find that Private School provides educational instruction specifically designed to meet the unique needs of this Student, supported by services as are necessary to permit this Student to benefit from the instruction. Therefore, I find that Parent met their burden of proving by a preponderance of the evidence that their unilateral placement of Student at Private School was appropriate.
In support of their position, Parent provided the Private School Program Description, Student’s Schedule, Student’s Attendance Record, a Quarterly Progress Report, an Educational Annual Assessment and a Prospective Student Intake Evaluation (Ex. C; Ex. F; Ex. G; Ex. H; Ex. I; Ex. J).
The record also includes testimony from two witnesses– Parent and Principal of Private School. Parent generally testified about Student’s needs and that Student has made progress since enrolling in Private School (Ex. L). Principal testified about the school in general and specifically how it addressed this Student’s needs as well as the progress Student has made (Ex. K). Among their responsibilities, Principal oversees the “development and implementation of policies, programs and curricula that promote the educational and physical development of each student” (Ex. K-2). Principal also oversees the professional development of staff members, participates in the development of IEPs for students and evaluates student data (Ex. K-2). Principal visits classrooms and observes student interactions with teachers and related services providers (Ex. K-2). Principal participated in the development of Student’s program, and is involved with monitoring it (Ex. K12). Principal frequently visits Student’s classroom and works directly with Student’s teacher and teacher’s supervisors (Ex. K-13). Principal also has observed Student in individual therapy sessions and has spoken with Student’s related service providers (Ex. K-13). I found both witnesses credible.
Determining Appropriateness When a parent seeks tuition reimbursement after unilaterally placing their child in a private program, the parent must demonstrate that the program is appropriate to meet their child’s needs. A.D. ex rel. E.D. v. Bd. of Educ. Of City Sch. Dist. Of New York, 690 F.Supp.2d 193, 206 Findings of Fact and Decision
(S.D.N.Y. 2010). The issue is whether the placement is “reasonably calculated to enable the child to receive educational benefits.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir 2017), citing Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d. Cir 2006). The “unilateral private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115 quoting Frank G., 459 F.3d at 365.
The Parent must prove appropriateness by a preponderance of the evidence. See NYS Educ Law § 4401(1)(c); see R.E. v. New York City Dep’t of Educ., 694 F.3d at 184-185.
Among the considerations are whether the private placement is likely to produce progress, not regression. See Gagliardo, 489 F.3d at 112, quoting Walczak, 142 F.3d at 130. Moreover, as specifically noted in Frank G.,
No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specifically designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-365.
Overview of The Private School Program Private School is an independent school for students who are severely disabled, including students with traumatic brain injuries (“TBI”), multiple disabilities, vision impairments, hearing Findings of Fact and Decision impairments, medical issues, cognitive delays, and significant mobility issues (Ex. K-2; Ex. C-2). Students may also have complex medical needs, including seizure disorders and g-tube feeding (Ex. K-2). Most student use wheelchairs or other mobility equipment (Ex. K-2). Students’ verbal skills range from non-verbal, non-symbolic communication to verbal communication (Ex. K-7-8). However, most students are non-verbal communicators and all use same type of augmentative communication device (“AAC”) (Ex. K-2). All students have limitations in their gross and fine motors skills (Ex. K-2). All students use assistive technology (“AT”) (Ex. K-2-3).
Private School offers a 12-month school year (Ex K-3; Ex. C-2). Private School conducts an intensive admissions process, including an initial interview, review of a student’s medical and educational records, an in-person assessment and additional evaluations to determine a student’s present levels of performance across all academic and therapeutic disciplines (Ex. C-3).
All teachers hold master’s degrees or are working towards master’s degrees (Ex. K-11). Staff have ongoing professional development opportunities, including in the areas of safe feeding, modifying materials, creating tactile symbols, Partner Assisted Scanning (“PAS”) and [REDACTED] within the classroom (Ex. K-12).
Private School uses a variety of curricula for students, including those related to academic subjects and those related to enrichment and transitions skills (Ex. K-4-5). Private School’s instructional model is based on ongoing assessments and evaluations (Ex. K-5). Educational and therapeutic decisions about location, group size, and intensity and duration of interventions are based on individual student responses to interventions (Ex. K-5).
For the 2022-2023 school year, Private School enrolled 105 students from age 5 to age 21 (Ex. K3). Students are grouped by age, developmental level and their ability to learn and interact in the classroom (Ex. K-3). Class sizes are small, with low student-to-teacher ratios (Ex. K-4). Each student has a 1:1 paraprofessional assigned to them at all times (Ex. K-4). Staff is comprised of 15 teachers, 2 associate teachers, 3 school nurses and 48 related services providers, including speech language pathologists (“SLP”s), physical therapists and occupational therapists.
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Paraprofessionals, social workers, teachers for the visually impaired and teachers for the hearing impaired are also part of the staff (Ex. K-3).
All students receive Activities of Daily Living (“ADL”) training tailored to their needs (Ex. K-5). For example, each classroom is equipped with an ADA compliant accessible bathroom which is further adapted to meet the specific needs of each student, and each classroom has a changing room (Ex. K-5-6).
AT is a “keystone” of Private School as all students have significant disabilities which prevent them from communicating, holding books and pencils, actively participating in academics, using a computer/iPad or getting around the school (Ex. K-10-11; Ex. C-5). Each student is assigned a specific set of AT to use throughout the day (Ex. K-11; Ex. C-5). The Access Clinic is a “grand rounds style consultation” to assist with AT solutions (Ex. K-11).
In addition to “traditional” learning within the classroom, students learn through field trips and programming provided by visiting community partners (Ex. K-9). Private School employs a collaborative model and engages an interdisciplinary team for each student (Ex. K-7; Ex. C-4).
Private School administers intensive Occupational Therapy (“OT”), SLT, Physical Therapy (“PT”) and other services as needed (Ex. K-6; Ex. C-4). Related services are provided through a “pushin/pull-out” therapy model (Ex. K-6; Ex. C-4). OT focuses on daily living skills, the use of alternative communication devices and the use of AT (Ex. K-6; Ex. C-6). They also work on improving strength, flexibility, fine motor skills and upper body development (Ex. K-7; Ex. C-6). All occupational therapists hold master’s degrees (Ex. K-7). SLPs help students learn how to communicate, including by assisting with oral-motor function, language development and the use of AT (Ex. K-8; Ex. C-7). All SLPs hold master’s degrees (Ex. K-8). PT focuses on preventing regression and maintaining a student’s current level of mobility as well as on increasing strength and mobility (Ex. K-7; Ex. C-6). All Physical Therapists are licensed (Ex. K-7). Once per week, students also engage in PT yoga to promote flexibility, body awareness, muscle strength and posture (Ex. K-10).
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Other services and classes include music therapy, visits from therapy dogs, weekly art lessons and weekly empowerment lessons (Ex. K-9-10; Ex. C-4, 5, 8). Additionally, there are numerous “clinics” to assess and address various needs. For example, there is an Equipment Clinic and a Brace Clinic (Ex. K-10; Ex. C-4, 6). Occupational and Physical Therapists work closely with the Orthotics Team. Orthotics casts, measures and fits students on site (Ex. K-10). The Power Chair Clinic offers assessment and fitting for personal loaner power chairs with AT (Ex. K-11).
Private School also offers feeding assessments and programs (Ex. K-11). These ensure proper intake and safe feeding, and help students develop oral motor and proper hygiene skills (Ex. K11). The Lunch Bunch is a multidisciplinary feeding assessment to evaluate feeding and swallowing skills, develop a safe mealtime plan and train staff on safe feeding practices (Ex. K11; Ex. C-7).
Private School develops their own IEP goals as part of a quarterly cycle, and issues quarterly Progress Reports (Ex. K-6; Ex. C-4; Ex. H). As part of the process, related services providers complete assessments to determine each student’s therapeutic or learning needs and progress (Ex. K-6; Ex. H). In the third quarter, these assessments contribute to the development of the IEP for the following year (Ex. K-6).
The Private School Identified This Student’s Specific Educational Needs I find that Private School identified this Student’s specific educational needs.
Prior to admission, Student and their parents visited Private School (Ex. K-12). Student was evaluated by Private School staff including the Assistant Principal of Education, a Social Worker, the Director of Occupational Therapists, the Director of Physical Therapists, a senior Speech and Language Pathologist and the Director of Vision and Hearing Services (Ex. K-12; Ex. J). They developed a plan specific to Student, including services mandates, classroom placement, and goals and benchmarks for the 2022-2023 school year (Ex. K-12; Ex. J). Additionally, throughout the year, Student was assessed to determine whether services needed adjustment (Ex. I; Ex. J).
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Private School is aware of Student’s many diagnoses (Ex. K-13; Ex. I-1, 5; Ex. J-1). They also understand that Student exhibits delayed oral motor movements and consumes a pureed diet and thin liquids (Ex. K-13; Ex. J-3). Student is nonambulatory, traveling in a stroller or manual wheelchair (Ex. K-13; Ex. I-1, 5; Ex. J). Student requires total assistance to transition between locations and to change positions (Ex. K-13; Ex. J). Student possesses “extremely delayed and limited gross and fine motor skills” (Ex K-13). Student requires significant assistance in all aspects of daily life including ambulation, feeding, dressing and toileting (Ex. K-13; Ex. J-3). Student is nonverbal and has limited vocal approximations due to the medical diagnoses (Ex. K-13; Ex. I-1, 5; Ex. J-2). Student communicates through a combination of facial expressions, vocalizations, tapping on the table and use of an AAC device (Ex. K-13; Ex. I-1, 5; Ex. J-2). Student requires a communication partner (Ex. K-13). During Intake, Private School further identified that Student has certain vision issues indicative of Cortical Vision Impairment and suggested Parent speak with Student’s eye doctor (Ex. J-2).
For academic lessons and activities, Private School determined that Student benefits from: tangible symbols; verbal, tactile and auditory cues; extended processing and response time; consistent choice presentation; and aided language stimulation, such as modeling on their communication device (Ex. K-13-14; Ex. I-2). They also determined that Student benefits from support to engage socially with others, especially to initiate conversations (Ex. K-14).
Private School conducted numerous assessments to identify Student’s various related services needs (Ex. I-7-27).
The Private School Addresses this Student’s Specific Educational Needs I find that Private School addresses Student’s educational needs.
Private School developed an individualized program for Student for the 2022-2023 school year (Ex. K-14; Ex. J). Student requires significant adaptations in order to learn, such as adapted materials, a class size of six students, high-tech and low-tech communication access, intensive occupational, physical and speech therapy, and an integrated educational model (Ex. K-14; Ex. J). Private School also developed specific goals and objectives for Student (Ex. K-17; Ex. H). These Findings of Fact and Decision
goals include academic goals and goals related to SLT, OT and PT, and were modified as needed (Ex. H).
Student’s initial placement in Private School was in an 8:1:1 special education classroom (Ex. K14; Ex. J-2, 4). However, after further assessment, it was determined that Student’s physical, medical, learning, social/interpersonal and communication needs would better be served in a 6:1:1 classroom (Ex. K-14; Ex. I-6). This ratio also addresses Student’s pace of learning (Ex. K-14). Student’s cohort consists of peers of a similar age and on similar levels of need and support (Ex. K-17). Student’s classes consist of literacy, math, science, social studies, music, art, transition, vocational/community outings, social skills and morning meetings (Ex. K-18; Ex. F-1). Student’s Lead Teacher holds a New York State (“NYS”) Childhood Education Certificate, a NYS School Building Leader Certificate and a NYS Students with Disabilities Certificate (Ex. K-17). [7]
In academic classes, Student benefits from touching and exploring manipulatives, tangibles and books (Ex. K-18; Ex. I-2). Student also benefits from repeated modeling and prompting (Ex. K-
18 Ex. I-2). Student was assessed in the “Early Transitional Emerging Literacy” phase (Ex. I-35). Their Literacy class focuses on alphabet/sound awareness instruction, shared reading and writing and independent reading and writing (Ex. H-1, 2; Ex. I-3, 5). Math class focuses on cause and effect, problem solving and using math tools and manipulatives (Ex. H-2; Ex. I-5). Student requires a 1:1 Paraprofessional to assist with ADLs throughout the day (Ex. K-14). The Paraprofessional ensures that Student can safely and fully participate in academic and therapeutic sessions (Ex. K-17-18). Student receives individual SLT four times per week for 60 minutes per session (Ex. K-14, 15; Ex. F-2; Ex. J-3). The 60-minute sessions allow for extra processing time, necessary breaks, repetition and collaboration among staff (Ex. K-14, 15; Ex. J-3). Student works on expressive and receptive language skills, as well as oral motor and feeding skills (Ex. K-15; Ex. H-3-4). Student Findings of Fact and Decision
communicates, in part, using AAC (Ex. K-15; Ex. H-4), and Private School uses various strategies and systems to support Student’s communication (Ex. K-15-16; Ex. H-5).
Student receives individual OT four times per week for 60 minutes per session (Ex. K-14; Ex. F2; Ex. J-3). The 60-minute sessions allow time for the required 2-person transfer, rest breaks, redirection, and extra time and repetition for processing directions (Ex. K-16; Ex. J-3). Student works on self-care skills, play skills and academic skills (Ex. K-16; Ex. H-5-6; Ex. J-4). Student requires many adaptations, including a modified toilet and faucet and special utensils (Ex. K-16).
Student receives individual PT five times per week for 60 minutes per session (Ex. K-14; Ex. F-2; Ex. J-2). The 60-minute sessions allow time for orthotic management, transitions, and preparation such as soft tissue massage and stretching (Ex. K-16; Ex. J-4). Student works on building strength and endurance which assists with motor planning and developing higher gross motor skills (Ex. K-16; Ex. H-6-7).
To address physical needs, Private School provides Student various specialized equipment, such as a stroller, a wheelchair, an activity chair, and ankle foot orthoses (Ex. K-16-17). Student uses a Rifton activity chair to provide optimal and safe positioning (Ex. K-14; Ex. I-1, 5; Ex. J-4). Private School also provided Student various AT devices, such as an enlarged keyboard with a text to speech program on the computer as well as a light tech 4-letter paper flipbook and a voice output communication device (Ex. H-3; Ex. I-2).
Private School offers Parent Counseling and Training (“PCAT”) one time per week for 60 minutes to help them generalize school services at home and in the community and to teach them how to access community support (Ex. K-14, 17).
Student’s Progress I find that Student has made progress at Private School.
Student’s progress at Private School was documented through testimony, a Quarterly Progress Report from the period of July 11, 2022 through April 14, 2023 and an Educational Annual Findings of Fact and Decision
Assessment conducted in December 2022 (Ex. K; Ex. L; Ex. H; Ex. I). Student demonstrated varying rates of progress on their goals in each area of their program (Ex. K-18, 21; Ex. H; Ex. I).
In the classroom, Student’s teacher noted increased level of attention and participation in all adamic activities (Ex. K-18). In literacy, Student was “gradually learning” to identify a target letter, meaning that Student was progressing slowly but goal achievement was possible (Ex. K-18; Ex. H-1). Student was working on choosing a letter out of a field of three letters using a choice board or 4 letters using the appropriate alternative pencil (i.e. print flip chart, enlarged keyboard) (Ex. K-18; Ex. H-1). Student was making similar progress using the alternative pencil through PAS or direct selection to choose at least two letters relevant to the topic (Ex. K-18-19; Ex. H-1). Student increased their understanding of how to use the alternative pencil and began to choose more letters during relevant activities (Ex. K-19; Ex. H-1-2). In Math, Student worked on identifying objects based on attributes (Ex. K-19; Ex. H-2). Student’s progress was “inconsistent” meaning that Student might not achieve the goal (Ex. H-1, 2). Student demonstrated willingness to engage with and physically explore manipulatives presented, though (Ex. K-19).
Student made progress in SLT (Ex. K-19; Ex. H-3-5). Student worked on communicating wants and needs by “requesting, commenting, and negating” using various AAC devices (Ex. K-19; Ex. H-3). Student made “gradual” progress communicating wants and needs and participating in social conversations using pre-programmed messages (Ex. K-19-20; Ex. H-3, 4-5). Student worked on receptive language understanding by independently initiating various cause/effect language-based activities (i.e. online book reading computer games, adaptive toys) as demonstrated by activating switches on their AAC (Ex. K-19; Ex. H-3-4). Student was “progressing satisfactorily” in this skill, meaning that Student was expected to achieve that goal (Ex. H-1, 3-4) Student benefitted from extended wait-time and consistent modeling, verbal and gestural cues (Ex. K-19). Student was “progressing satisfactorily” on goals related to oral motor skills as demonstrated by decreased spillage of liquid and improved timeliness of swallow (Ex. K-20; Ex. H-4).
Student made progress in OT (Ex. K-20; Ex. H-5-6). Student learned to explore familiar classroom tools continuously for one minute with moderate cueing and used the tools with moderate to maximal assistance (Ex. K-20; Ex. H-5). Student learned to advance pages of a digital book more Findings of Fact and Decision effectively (Ex. K-20; Ex. H-5). Student increased independence in ADLs such as handwashing and self-feeding (Ex. K-20; Ex. H-6). Student “achieved” a goal related to leisure/prevocational activities related to unpacking items and selecting materials (Ex. H-5).
Student made “satisfactory” progress in PT (Ex. K-21; Ex. H-6-7). For example, Student increased maintaining their balance, strengthened their core, and increased their postural endurance (Ex. K21; Ex. H-6-7). Student also made progress transitioning from sitting on a bench to standing with moderate assistance (K-21; Ex. H-7). Student improved tolerance with bearing weight through their feet with the use of a stander (Ex. K-21; Ex. H-7).
Parent has seen “tremendous improvement” as evidenced by Student’s “far better” mood, increased comfortability and decreased irritable behaviors (Ex. L-2). Parent is “absolutely convinced that [Private School] if the right placement for [Student]” (Ex. L-2).
Finding of Appropriateness In sum, Private School provides special education for students, like Student, who are severely disabled due to brain injuries and other various impairments, and who require a high level of support and services. Private School identified Student’s educational needs and created an educational program specifically to address them. Private School is implementing that program, instituting appropriate grouping with small class sizes, low student/teacher ratios, the support of a full-time 1:1 paraprofessional and numerous related services to enable Student to access the educational curriculum. Further, Private School continues to re-assess and monitor Student’s needs and progress. Student is progressing as a result of the interventions and supports. I find that Parent has established by a preponderance of the evidence that Private School is an appropriate program for this Student.
Accordingly, I turn to Prong Three of the Burlington/Carter test, equities.
PRONG THREE- EQUITIES
The equities in this matter weigh in favor of Parent’s placement.
Findings of Fact and Decision
In deciding whether equities support the claim, including whether the remedy should be barred altogether or modified in some way, IHOs must consider a multitude of relevant facts. These can include whether the cost of the private education was unreasonable (see L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]), whether the parents failed to make their child available for evaluation by the district (see 20 U.S.C. § 1412[a][10][C][iii][III]) or whether actions taken by the parents were unreasonable (see 20 U.S.C. § 1412[a][10][C][iii][III]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 [2d Cir. 2014] [stating, “[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district’s efforts to meet its obligations under the IDEA”]; Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F. Supp.2d 403, 419 [S.D.N.Y. 2011] [finding equities met where parents cooperated in good faith at all times with the DOE, participated in the CSE meeting, visited proposed placements and notified district of unilateral placement].) The Second Circuit also has looked at whether the parents should have availed themselves of needbased scholarships or other financial aid from the private school, whether there was any fraud or collusion by the parent or the private school in generating the tuition or whether the arrangement with the school was fraudulent or collusive. See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
Additionally, as part of the equities analysis, reimbursement may be reduced or denied if the parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school or by written notice ten (10) business days before such removal. That notice must state that the parent is rejecting the proposed placement and must include their concerns and intent to enroll the student in a private school at public expense. See 20 U.S.C. § 1412(a)(10)(C)(iii)(I). The purpose of this statute is to enable the school district an opportunity to take the necessary steps to determine whether it can provide a FAPE to the student in a public school setting. See e.g. Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004). As the Second Circuit explained, "[t]he ten-day notice requirement gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections—all before the parents enroll their child in a private school and file a due process complaint." Further, "if parents unreasonably reject the school district's proposed changes to the IEP, or are otherwise uncooperative, courts and hearing officers Findings of Fact and Decision are fully empowered to deny them reimbursement." Bd. of Educ. of Yorktown Cent. Sch. Dist. v. C.S., 990 F.3d 152, 171 (2d Cir. 2021). Parents of students enrolled in private school are not exempted from 10-day notice requirements. See S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-363 (S.D.N.Y. 2009).
Examining the many relevant factors as they pertain to this case, I find that the equities do not bar a full tuition remedy.
Analysis of Equities As already noted, the District did not present witnesses (Tr. 45), did not cross-examine any of Parent’s witnesses (Tr. 56, 58), and declined to present opening and closing statements (Tr. 51, 59). Therefore, I find that the District failed to prove that equities are in their favor.
Despite the District’s failure to meet their burden, I am required to analyze the entire record before me, which includes Parent’s documentary evidence and the testimony. I find that equities largely lie with Parent and that Parent is entitled to tuition reimbursement, less a slight reduction because of their late TDN.
Regarding the evidence presented, I find that the record is devoid of any unreasonableness with respect to Parent’s actions. For example, Parent fully cooperated with the CSE, as demonstrated by participating in the IEP meeting, explaining Student’s academic, physical and medical needs, and expressing concerns about the recommended program (Ex. A-3). Additionally, until the 20222023 school year, Student had attended public schools (Ex. L-1; Ex. A-2), and “ideally [Parent] would have liked to have kept [Student] in a DOE school” (Ex. L-1).
In light of the District’s failures, on June 30, 2022, Parent, through their attorney, sent the District a TDN (Ex. B; Ex. A-3). In their detailed letter, Parent recounted Student’s medical background and history with the DOE (Ex. B-1-2). Parent also relayed what transpired at the October 2021 IEP meeting and all the reasons why they believed the District failed to offer Student a FAPE for the 2022-2023 school year (Ex. B-2-3). Parent informed the District that they intended to unilaterally place Student and seek funding for the tuition and reimbursement for transportation Findings of Fact and Decision expenses if transportation was not provided by the DOE (Ex. B-3). Parent further stated they would seek compensatory education services if the District failed to provide transportation and Student missed school (Ex. B-3). Although Parent did not testify that the District failed to respond to that notice, I would have expected the District to present evidence of their response had they done so. Therefore, I find that the DOE did not respond to Parent’s notice.
I further find that the Private School contract specifically states that Parents would have been released from the Enrollment Contract if the DOE identified a public school or state-approved nonpublic school, and Student enrolled in that school by October 15, 2022 (Ex. D-2).
I also find no evidence to suggest that the cost of the school is unreasonable or that there was any collusion between Private School and Parent as to the tuition or otherwise.
Although I find Parent’s actions equitable and the TDN substantively proper, I find that it was not timely served. Student began attending Private School on July 11, 2022 (Ex. K-12; Ex. D-1; Ex. E; Ex. G-2).[8] Parent was to have provided the District notice on June 24, 2022, ten (10) business days prior to July 11, 2022. See 20 U.S.C. § 1412(a)(10)(C)(iii)(I). Parent’s TDN was served on June 30, 2022 (Ex. B; Ex. A-3). Further, Parents signed the contract on May 25, 2022 (Ex. D). I find no reason why timely notice was not provided, and in light of the notice being four days late, I have reduced the award by $3,714.44, resulting in a total amount to be reimbursed of
$190,365.56. [9]
Findings of Fact and Decision
REMEDIES
Direct Funding of Tuition Education Program Costs at Private School for Student for the 12-month 2022-2023 school year, running from July 11, 2022 through June 30, 2023, is $194,080 (Ex. D-1; Ex. E). This includes tuition and the services of the 1:1 paraprofessional (Ex. D-1-2). Parent seeks direct funding to Private School for the total amount (Ex. L-2; Tr. 56-57). As explained, Parent would have been released from the contract if the DOE offered Student a FAPE and Parent accepted that offer and timely withdrew Student from Private School (Ex. D-2). The contract further states that if Parent is denied all or part of the Education Program Costs and any applicable additional costs due under the Enrollment Contract by a final administrative or judicial decision resolving the claim for such funding, Parent remains responsible to pay any remaining costs (Ex. D-2). As explained more fully below, I find that Parent is entitled to the requested form of payment.
Pursuant to Connors v. Mills, 34 F.Supp.2d 795, 799, 805-06 (N.D.N.Y. 1998) “once the Burlington prerequisites are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of the private placement immediately.” See also Mr. & Mrs. A. v. New York City Dep’t. of Educ., 769 F. Supp. 2d at 427 (stating that where the Burlington factors are met, the court may award retroactive direct payment of private school tuition.) Here, I find that Parent testified credibly that due to “limited financial resources,” it would be an “incredible hardship” for Parent to front the educational expenses and await reimbursement (Ex. L-2). I further find that Parent is not required to produce anything further to satisfy the request for direct funding. See Ferreira v. New York City Dep’t of Educ., 2023 WL 2499261 (S.D.N.Y. March 14, 2023) (noting that the court found no caselaw holding that “proof of inability to pay is required to establish the propriety of direct retrospective payment,” and that “where it is undisputed that the DOE is responsible for payment, and the DOE does not contest the reasonableness of the cost of tuition, it would be nonsensical to draw a distinction on equitable grounds between requiring the DOE to pay the school directly and forcing the parents to make an initial payment in the same amount that the DOE is then required to reimburse”).
Findings of Fact and Decision
As I have found that the Burlington/Carter test has been met, that there is no evidence that the tuition amount sought is unreasonable, and that there is evidence that Parent is unable to pay for Private School and await reimbursement, I am granting the request to order direct funding to Private School for $190,365.56 for the 12-month 2022-2023 school year (Ex. L; Ex. D; Ex. E).
As the Enrollment Contract and Tuition Affidavit are already in the hearing record, they need not be re-submitted (Ex. D; Ex. E).
TRANSPORTATION
Parent has requested an order to provide Student appropriate transportation to and from school and reimbursement for any transportation expenses during the school year at issue (Ex. A-7; Tr. 54). I find that transportation services are appropriate and that Student is entitled to such. Parent has not provided any documentation or receipts in support of their request for reimbursement of transportation expenses. Therefore, I decline to order any such reimbursement.
The IDEA requires that a school district must provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’ . . . even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport.” Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala.., 117 F.3d 1371, 1374 [11th Cir. 1997] (internal citation omitted). Transportation may be deemed necessary “if in its absence a disabled child in private school would be denied ‘a genuine opportunity for equitable participation in [a special education program]’, . . . or special education program benefits “comparable in quality, scope, and opportunity for participation . . . [to those provided for] students enrolled in public schools.’” Id. at 1375 (internal citations omitted). In addition, State law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs” Education Law §§ 4401(1), 4402(4)(a); see also Education Law § 4401(2); 8 NYCRR § 200.1(ww).
Findings of Fact and Decision
I find that Student is entitled to specialized transportation to access and benefit from their special education program. Specifically, in accordance with medical documentation and because Student uses a wheelchair, Student is entitled to receive specialized transportation to and from school from the closest safe curb location in an air conditioned “lift bus,” with a “regular size” wheelchair, and with limited travel time. I further find that the CSE determined that Student requires this specialized transportation, having recommended it on the October 22, 2021 IEP (Ex. 1-18), and that Private School also determined such to be a necessity (Ex. K-14; Ex. J-5).
OTHER CONTENTIONS
Parent seeks payment of attorneys’ fees and expenses associated with representation in this matter (Ex. A-7). The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party. Entitlement, if any, to costs must be determined by a court of competent jurisdiction. See 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08008; Application of a Child with a Disability, Appeal No. 06-109. I would be exceeding the scope of my authority by determining that Parent is the prevailing party entitled to attorneys’ fees.
Other than the relief set out in my Order below, and my findings detailed in this section of “Other Contentions,” I find the Parties’ remaining contentions to be unnecessary to this decision, without merit, beyond my jurisdiction, subsumed within the statutory framework of the IDEA or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all of Parent’s remaining claims not discussed herein are dismissed with prejudice.
Findings of Fact and Decision
ORDERS
IT IS HEREBY ORDERED that the New York City Department of Education (“DOE”) is to fund the cost of Student’s 12-month 2022-2023 school year tuition at Private School up to a total amount of $190,365.56 by directly paying Private School the tuition within thirty-five (35) days of this decision; and it is further
ORDERED that the DOE shall provide to Student, throughout the 12-month 2022-2023 school year, round-trip special education transportation which shall consist of transportation in an airconditioned “lift bus” to accommodate a “regular size” wheelchair with pickup and drop off from the closest safe curb location and with limited time travel. The DOE shall fund appropriate transportation consistent with this Order for any time the DOE fails to provide such transportation.
August 16, 2023
(signed electronically) _______________________________________________________________________________________
Ginger James Impartial Hearing Officer Findings of Fact and Decision
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.
Findings of Fact and Decision
APPENDIX A- REDACTION IDENTIFICATION PAGE
Redacted Information Term Used In FOFD
REDACTED Student
REDACTED
Parent
REDACTED Non-Testifying Parent
REDACTED Parent’s Attorney
REDACTED District Representative
REDACTED District
REDACTED
Private School
REDACTED Principal and Executive Director of
Private School Findings of Fact and Decision
APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
Exhibit Title of Document Date Number of
Pages
A Due Process Complaint 04/20/2023 8
B Ten Day Notice 06/30/2022 5
C REDACTED Program Description 22-23 SY 11
D Student Enrollment Contract 06/14/2022 5
E Tuition Affidavit of REDACTED 07/14/2022 [1]
F Student Schedule 22-23 SY 2
G Student Attendance 05/23/2023 11
H Quarterly Progress Report 22-23 SY 7
I Educational Annual Assessment Varied 27
J Prospective Student Intake Evaluation 05/09/2022 5
K Affidavit of REDACTED 06/15/2023 22
L Affidavit of REDACTED Undated [2]
DOE EXHIBITS
Exhibit Title of Document Date Number of
Pages
Findings of Fact and Decision
3 Special Education Recovery Services Form 11/16/2021 1
IHO EXHIBITS
Exhibit Title of Document Date Number of
Pages
Emails Regarding Parent’s Name and Request to 08/14/2023 and
I Extend the Compliance Date 08/15/2023 5
Footnotes
[2] References to the transcript from the Pre-Hearing Conference are denoted “PHC Tr.” References to the transcript from the Status Conference are denoted “SC Tr.” References to the transcript from the Due Process Hearing are denoted “Tr.”
[3] At the Due Process Hearing, Parent withdrew their request for “independent evaluations in all areas of suspected disability” (Tr. 43). Additionally, in light of Parent’s testimony that they had not made any payments to Private School, Parent’s Attorney withdrew their request for tuition reimbursement and requested direct payment for the entire tuition (Tr. 56-58).
[4] Settlement conferences are conducted by an OATH Settlement Officer or OATH IHO not assigned to the case whose purpose is to aid the parties in exploring and facilitating a resolution to the DPC. The content of the conferences is confidential, and the parties are directed to attend with knowledge of the dispute and settlement authority should there be an interest in resolution. Settlement Conferences are not recorded.
[5] Through a series of emails among Parent’s Attorney, District Representative and me, we rescheduled the DPH for June 22, 2023 (Tr. 42).
[6] The District’s use of the terms “Prong One” refers to the Burlington/Carter standard applied to cases involving requests for tuition reimbursement for students placed in private schools by their parents.
[7] Student had a different Lead Teacher for the first quarter of the 2022-2023 school year. That teacher also holds a Master’s Degree in Special Education (Ex. K-17).
[8] NYC Public School students entitled to extended year services began school on July 5, 2022, the day after the July 4, 2022 holiday. See https://www.schools.nyc.gov/learning/special-education/supports-and- services/extended-school-year-services-for-july-and-august (last visited August 13, 2023).
[9] I arrived at this amount by dividing the total Education Program Cost by 209 days, which accounts for the 180 school days during the DOE school year and the 29 school days during the DOE extended school year, resulting in a daily educational cost of $928.61. I then multiplied the $928.61 by 4 and subtracted that from the total educational cost of $194.080.
[1] 21.22 Holdover IEP 10/22/2021 20
[2] Prior Notice Package for Placement 10/28/2021 1