New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 599119 - NYC: 247922

FINDINGS OF FACT AND DECISION

Case Number: 247922

Student’s Name: [REDACTED] (“Student”)

Date of Birth: [REDACTED]

School District: NYC DOE

Hearing Requested by: [REDACTED] (“Parent(s)”)

Request Date/Date Complaint Filed: 5/3/2023

Date(s) of Hearing: 6/29/2023

Actual Record Closed Date: 7/16/2023

Date of Decision: 7/17/2023 Time Sensitive No Hearing Officer: Daniel M. Hochbaum

INTRODUCTION

This is a decision in a hearing under the Individuals with Disabilities Education Act (“IDEA”). This case concerns Student, a [REDCTED]-year-old Student who attends the Private School (“Private School”). Ex. A:1. In the Parent’s Due Process Complaint (“DPC”), the Parent alleged that the Department of Education (“DOE”) failed to provide the Student a Free Appropriate Public Education (“FAPE”) for the 2022-2023 school year. Id.

The Parent requests an award of tuition for the 2022-2023 school year for the Student’s attendance at the Private School, a private program that is not approved by the Commissioner of Education for the education of students with disabilities. Id at 3. In the DPC, the Parent also sought payment for the cost of an independent behavioral assessment, but the Parent withdrew that claim and request for relief at the hearing. Ex. A:3; Tr. 22.

As discussed below, I find that the DOE denied the Student a FAPE for the 2022-2023 school year.

I find that the Private School offers the Student specially designed instruction sufficient to meet the Student’s needs, and the equities support the Parent’s request for payment of tuition for the 2022-2023 school year. I further find that an IEP meeting and associated relief is appropriate.

PROCEDURAL HISTORY

The Parent filed this case on 5/3/2023. Ex. A:1. The DOE appointed me to hear this case on 5/4/2023. I conducted a Pre-Hearing Conference (“PHC”) with the Parties on 6/8/2023. PHC Tr. 4. During the Pre-Hearing, I set a briefing schedule to address the Parent’s request for Stay Put/Pendency services, but the Parent withdrew her request for a Pendency order on 6/21/2023. IHO Ex. I:1. The DOE did not file a response to the DPC as required by law. 34 C.F.R. § 300.508(e).

I held a hearing on 6/29/2023. Tr. 5. It was a closed hearing. The Parent’s attorney represented the Parent. Tr. 5. The DOE attorney represented the DOE. Tr. 6.

In her opening statement, the DOE attorney conceded that the DOE denied the Student a FAPE for the 2022-2023 school year but argued that the Parent would be unable to prove that the Private School was appropriate for the Student and reserved any equitable arguments. Tr. 20-21. The DOE did not introduce any exhibits into evidence or call any witnesses. Tr. 19. The DOE Attorney waived her closing statement. Tr. 62. In its closing, the DOE argued that tuition should be denied in full because the Parent did not provide sufficient information about the qualifications of the Private School’s related service providers and because the Parent did not provide sufficient information about how the Private School’s program was tailored to meet the Student’s unique needs. Tr. 62. The DOE also argued that should I award tuition, the award should be prorated to 9 months based on the DOE’s concerns about the Student’s attendance. Tr. 62-63.

The Parent’s attorney delivered an opening statement in which she argued that the DOE denied the Student a FAPE, that the Private School was appropriate for the Student, and that the equities supported the Parent’s request for relief. Tr. 21-22. The Parent’s attorney entered into evidence exhibits A-N.^[1] Tr. 29, 51. One of the exhibits, Exhibit N, was an unsigned affidavit from one of the witnesses, but the witness swore to its contents at the hearing. Tr. 30-31. The Parent’s Attorney called two witnesses, the Parent and the Student’s head teacher (“Teacher”) from the Private School. Ex. N; Tr. 53. The DOE cross examined both witnesses. Tr. 35, 56. The Parent’s attorney delivered an oral closing statement. Tr. 63.

FINDINGS OF FACT

The Student is a [REDACTED]-year-old who has attended the Private School since October 2022. Ex. A:1. The Student is diagnosed with Autism and Developmental Language Disorder per a January 2023 neuropsychological evaluation. Ex. H:14-15.

The Student has a variety of difficulties that impact him in school. According to records from his preschool placement, he has delays with “acquisition of cognitive and pre academic concepts, speech and language development, fine and gross motor development and the attainment of age appropriate social and symbolic play skills.” Ex. D:7. The Student also has variable attention and distractibility. Id. With respect to speech, staff at the Private School noted that he has delays in receptive, expressive, pragmatic language and articulation skills. Ex. N:8. Additionally, regarding occupational therapy, the Student also needs support for executive functioning skills, development of motor planning skills, sensory processing and regulation. Id at 8-9.

On 6/6/2022, the DOE held an IEP meeting for the Student. Ex. J:33. The DOE classified the Student with Autism. Id at 11. The DOE developed an IEP for the Student with the following services: a 10-month placement in a Special Class 12:1:1 classroom, placement in a DOE Non-Specialized School, Speech Language Therapy 1x30 1:1 and 1x30 in group of 2, Occupational Therapy 2x30 in group of 2, Physical Therapy 2x30 1:1, and Counseling 1x30 1:1. Id at 26-27. The DOE offered a school placement at the DOE Public School, but the school did not have a 12:1:1 classroom and instead had class sizes of up to 21 students. Tr. 54.

The Parent disagreed with the IEP program and the school placement that the DOE offered. Tr.

54. Among the reasons that the Parent disagreed were that she believed that the Student needed more individualized attention, that the IEP did not recommend 12-month services, and that the placement could not implement the recommendation for a 12:1:1 class in any event. Tr. 54; Ex. B:1. As a result, the Parent sent the DOE notice of her disagreement and unilaterally placed the Student at the Private School. Ex. B.

The Private School is an independent, coeducational, special education school that serves students with “developmental and severe language-based learning disabilities which significantly compromise their academic, communication, social/emotional and adaptive living skills.” Ex. N:3. The Private School operates a lower school which focuses on integrating academics, life skills, and social/emotional growth for students. Id. The Lower School has around 60 students, and most of the students have mild-to-moderate cognitive deficits and significant academic delays. Id.

The Private School provides instruction across educational domains including ELA, math, science, social studies, adaptive physical education, yoga, music, art therapy and technology. Id. The Private School provides small class sizes of up to 12 students, 2 teachers, and various related service providers who lower the student-to-teacher ratio to 2 to 1. Id at 4. The Private School provides related services including Speech-Language Therapy, Occupational Therapy, Physical Therapy and Counseling. Id at 5.

The Student began attending the Private School on 10/3/2022. Id.

CONCLUSIONS OF LAW AND ANALYSIS

This case concerns the Parent’s request that the DOE pay for the Student’s tuition to the Private School for the 2022-2023 school year. When a parent believes that a school district has failed to provide a student with a FAPE, a parent may unilaterally enroll the child in a private school and seek tuition payment from the school district by filing a due process complaint. Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 376 (2d Cir. 2014) (quoting Reyes ex rel. R.P. v. New York City Dep’t of Educ., 760 F.3d 211, 215 (2d Cir. 2014)). The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” 20 U.S.C. § 1415(b)(6)(A).

A district must pay for the cost of a student’s tuition at a private school if the three prongs of the Burlington/Carter test are met: (1) the DOE denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition. See Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-15 (1993).

In IDEA due process hearings in New York, school districts have the burden of proof – including the burden of production and burden of persuasion – except that a parent or person in 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. NY Educ. Law § 4404(1)(c).

A. Prong I

The IDEA states that children with disabilities are entitled to a Free Appropriate Public Education (“FAPE”). 20 U.S.C. § 1400 (d)(1)(A). In order to provide a Student with a FAPE, a school district must develop an Individualized Education Program (“IEP”) that consists of specialized instruction and related services designed to meet a student’s unique needs and must then implement the services in the IEP. 34 C.F.R. § 300.13. The law states that a school district offers 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. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

In the DPC, the Parent alleged that the DOE failed to provide the Student with a FAPE. Ex. A:1-

2. Specifically, the Parent alleged that the DOE improperly rejected an 8:1:1 class ratio because it was only available in a specialized setting, that the DOE failed to recommend Extended School Year/12-Month services for the Student for summer 2022, that the DOE relied on inappropriate evaluations in developing the IEP (including evaluations without standardized assessments), and that the DOE recommended a placement that did not have a 12:1:1 class. Id at 2. The Parent also alleged violations related to the lack of a Behavior Intervention Plan but withdrew that claim and the associated relief at the hearing. Id at 2; Tr. 22.

As to Prong I of the Burlington/Carter standard, the DOE conceded that it denied the Student a FAPE for the 2022-2023 school year and that it was not calling any witnesses or submitting any documents in its defense. Tr. 20. Therefore, I must find that the DOE denied the Student a FAPE and that it failed to carry its burden under Prong I.

Related to its concession, I must also discuss the Parent’s allegation regarding ESY as it related to relief that I will order below. The DOE also failed to carry its burden of showing that the Student did not require 12-month services in order to receive a FAPE. Tr. 20. According to the IDEA’s regulations, ESY services are: special education and related services that – (1) Are provided to a child with a disability – (i) Beyond the normal school year of the public agency; (ii) In accordance with the child’s IEP; and (iii) At no cost to the parents of the child; and (2) Meet the standards of the SEA.

34 C.F.R. § 300.106. ESY services must be provided “only if a child’s IEP Team determines, on an individual basis, in accordance with §§ 300.320 through 300.324, that the services are necessary for the provision of FAPE to the child.” Id. In New York, “[g]enerally, a student is eligible for a 12-month school year service or program ‘when the period of review or reteaching required to recoup the skill or knowledge level attained by the end of the prior school year is beyond the time ordinarily reserved for that purpose at the beginning of the school year.’” Application of a Student with a Disability, Appeal No. 22-112 (citing “Extended School Year Programs and Services Questions and Answers,” VESID Mem. (Feb. 2006), available at http://www.p12.nysed.gov/specialed/applications/ESY/2014-QA.pdf.

As noted above, the DOE conceded that it denied the Student a FAPE, and it did not limit or narrow its concession to particular allegations or make any arguments regarding ESY. Tr. 20. Neither the IEP (J:8-9) nor the Prior Written Notice (J:28) explain why the DOE refused to include ESY on the Student’s IEP. Additionally, the DOE did not call any witnesses or to explain the decision. Tr. 19. As a result, I find that the DOE failed to carry its burden with respect to ESY, and I order the DOE to amend the Student’s IEP as outlined in the Order below.

B. Prong II

A private school placement must be “proper under the Act.” Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370. This means that the Private School must offer an educational program which meets the student’s special education needs. 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). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” Gagliardo, 489 F.3d at 112 (“Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).

Parents need not show that the placement provides every special service necessary to maximize the student’s potential. Frank G., 459 F.3d at 364-65. Instead, they need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a student with a disability, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112 citing Frank G., 459 F.3d at 364-65. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 C.F.R. § 300.39(a)(1); 8 NYCRR § 200.1(ww); Hardison, 773 F.3d 386.

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. Frank G., 459 F.3d at 364. No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Id. 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. Id. 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.” Id; see also Gagliardo, 489 F.3d at 115.

In this case, the Private School meets the Frank G. standard and “provides educational instruction specially designed to meet the unique needs” of the Student that will enable him to make progress. First, the Private School is appropriate because it provides the Student with small class sizes and groups him with similarly functioning peers. Second, the Private School provides the Student with instruction and related services that he needs. Third, the Private School provides the Student with highly trained teachers and therapists. Fourth, the Private School adapts the instruction to help the Student learn. Finally, the Student is making significant progress at the Private School. I will discuss each in turn.

First, the Private School is appropriate because it provides the Student with small class sizes and groups him with similarly functioning peers. Small class sizes can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement. Frank G., 459 F.3d at 365 (citing Knable v. Bexley City Sch. Dist., 238 F.3d 755, 768 (6th Cir. 2001)). Small class sizes at a unilateral placement “come[] within the IDEA definition of ‘special education,’ namely, ‘specially designed instruction . . . to meet the unique needs of a child.’” Frank G., 459 F.3d at 365 (citing 20 U.S.C. § 1401(29)). The Private School placed the Student in a class of 12 students, 1 head teacher, 1 assistant teacher and 3 paraprofessionals, as well as a full-time Speech Therapist and Occupational Therapist. Ex. N:6. The Teacher explained that with these small ratios, academics can be tailored to the needs of each student, including the Student. Tr.

46. Additionally, the Private School’s small class size was consistent with the recommendation of the Neuropsychologist who recommended a “highly structured classroom with a low student-to teacher ratio and individualized instruction.” Ex. H:15. Additionally, the Private School grouped the Student with other students of similar ages, cognitive skills, and adaptive functioning skills which allowed him to work in small groups and practice skills that they all needed to learn. Ex. N:6. As such, the small class sizes and peer grouping are one factor among others that make the Private School appropriate under Prong II.

Second, the Private School is appropriate for the Student because it provides him with instruction and related services that he needs. One of the Student’s major needs was language development, and the Private School’s classes created a language rich environment for the Student. Tr. 45. Additionally, as discussed above, the Student needed help with adaptive skills, and the teacher testified that the Private School’s instruction included work on skills including taking turns, sharing materials, waiting for his turn to speak, sitting nicely, paying attention to the teacher, following instruction presented to a group of students, and answering questions. Ex. N:6. The Private School also provided the Student with the related services that he needed. The Neuropsychologist recommended that the Student receive Speech-Language Therapy, Occupational Therapy, and Physical Therapy, and the DOE’s IEP recommended Counseling in addition to these services. Ex. H:15; J:27. The record demonstrated that the Private School provided the Student with each of these services. Ex. N:8-9. For example, the Student received Speech-Language Therapy individually and in small groups multiple times per week due to his difficulty with receptive and expressive language skills, pragmatic and play skills. Id at 8. Likewise, the Student participated in weekly life skills classes co-led by the Occupational Therapist and participated in OT in individual sessions in the sensory gym twice per week and in a small group session in the classroom as part of writing centers once per week. Id. The Student also participated in Physical Therapy individually once per week in the OT/PT Sensory Gym and in a small group setting once per week as a push-in during Playground to improve his strength, balance, flexibility, range of motion, endurance, and coordination so that he could fully participate in school and daily activities. Id at 9. Additionally, the Private School provides the Student with Counseling once per week individually and once per week in a small group in addition to weekly Social Skills and Life Skills classes, co-led by the Student’s School Psychologist and Occupational Therapist. Id at 9. Therefore, the Private School is providing the Student with instruction and related services targeting his deficits.

Third, the Private School is appropriate for the Student because it provides the Student with highly trained teachers and therapists. The law in this circuit is that “a private placement need not provide certified special education teachers…for the disabled student,” but the Private School nevertheless ensures that its teachers have the training and specialization necessary to teach the Student based on his needs. Frank G., 459 F.3d at 364. In this case, both of the Student’s classroom teachers have, or are pursuing, Master’s degrees in special education and/or hold New York State teaching certifications. Ex. N:6. Additionally, teachers at the Private School undergo internal professional development related to teaching students with disabilities. Tr. 47-48. Regarding related service providers, while the DOE argued that the Parent did not demonstrate that the school had licensed related service providers, the Teacher explicitly testified that all of the Student’s related service providers are licensed in the State of New York. Ex. N:6. Therefore, the teachers and providers have sufficient training under the Frank G. standard to teach the Student based on his needs.

Fourth, the Private School is appropriate because it adapts the instruction to help the Student learn. When a teacher at the unilateral placement adapts instruction (for example, working one-on-one with the student, creating a communications book, giving the student extra time to complete work, allowing the student to work in isolated areas of the classroom, adapting tests to allow the student to take them orally), these factors weigh in favor of the appropriateness of the parent’s unilateral placement. Frank G., 459 F.3d at 365-66. To support the Student’s speech development, the Private School provides the Student with adaptations including teacher support, repetition, models, and multimodal cues. Ex. N:8. The Teacher explained that these supports are “needed” to help the Student consistently use 2-3 word utterances in both individual and group settings, engage in conversation with peers and adults, interact with peers during play activities, follow 2-step directions, and transition. Id. Similarly, the Occupational Therapist provides the Student with adaptations including modeling, multimodal cues, moderate physical assistance, increased time, adaptive scissors, slant board, and small writing utensils. Id at 9. Overall the record is clear that the Private School staff adapt instruction to support the Student’s learning.

Fifth, the Private School is appropriate because the Student is making progress at the school. Significant educational progress can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement. Frank G., 459 F.3d at 365 (citing Knable, 238 F.3d at 768). While a student’s progress at the private placement is not by itself sufficient to determine whether a placement is appropriate, that progress is a relevant factor in assessing the appropriateness of the placement. Weaver v. Millbrook

Cent. Sch. Dist., 812 F. Supp. 2d 514, 523 (S.D.N.Y. 2011). In reading, the Student has made progress reading environmental print, such as the daily schedule and gained independence in participating in reading groups through listening to his peers while waiting for his turn. Ex. N:7. In writing, the Student made progress adding details to representational drawings, writing some of the letters in his name with increased clarity and decreased size and copying letters other than those in his name. Id. In math, the Student made progress using language to describe the properties of shapes (including counting sides), composing and decomposing shapes using their component parts (for example, combining two triangle manipulatives to form a rhombus shape), and with counting, Ex. L:2, M:2. In Speech, the Student increased his spontaneous language and demonstrated comprehension of new words by incorporating them into responses about theme-related questions. Ex. L:8. In OT, the Student has made “steady progress in visual motor control through simple craft and coloring activities” and has also made progress in fine motor strength and bimanual coordination. Ex. M:14-15. He is also making progress in establishing a consistent right hand dominance in table top activities like writing, drawing, cutting. Id at 16. Finally, related to his social emotional functioning, the Student displayed progress with independently engaging in play with peers and activities and with communication skills throughout the day. Id at 13. Therefore, the Student is making progress at the Private School, and this is another factor that contributes to a finding that the Private School is appropriate for the Student for the 2022-2023 school year.

The weight of the evidence establishes that Student’s individual special education needs were addressed by the Private School, and that the instruction offered there was “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364. As a result of the above, I find that Parent has satisfied her burden in proving that the Private School offered an educational program which met Student’s needs under Prong II of the Burlington/Carter standard.

C. Prong III

Under the third and final prong of the Burlington/Carter test, courts consider “equitable factors” relevant to an order of tuition. Gagliardo, 489 F.3d at 112. “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [Department] throughout the process to ensure their child receive[s] a FAPE.” Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007). Specifically, equitable considerations include the parents’ participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the DOE. See D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 (S.D.N.Y. 2011). In this case, the equities weigh in favor of the Parent.

First, the Parent fully cooperated in the IEP process. When a parent cooperates with the CSE, including by providing reports, attending the IEP meeting, and participating in the meeting, this weighs in favor of the parent’s request for a tuition award under Prong III of the Burlington/Carter test. M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 254 (2d Cir. 2012). Here, the Parent attended the 6/6/2022 IEP meeting. Ex. J:33. Additionally, the Parent consented to the DOE evaluating the Student as evidenced by the classroom observation, social history update, and educational evaluation reports that the DOE conducted prior to the IEP meeting. Id at 1-7. As such, the Parent’s cooperation with the IEP process weighs in her favor under the equities.

Second, the Parent attempted to acquire information about the DOE’s proposed placement. A parent’s attempt to investigate the district’s proposed placement is another factor that weighs in favor of an award of tuition under Prong III. C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 82 (2d Cir. 2014). Here, the Parent investigated the DOE’s proposed placement and found out that the DOE’s placement could not implement the IEP and only had a classroom with over 20 students. Ex. B:2; Tr. 54. As such, I find that the Parent engaged in the school selection process and that this weighs in her favor under Prong III.

Third, on 9/19/2022, the Parent provided the necessary ten-days’ notice (“TDN”) of her concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year and her intent to unilaterally place the Student in the Private School. 34 C.F.R. § 300.148(d)(1)(ii); Ex. B. In her notice letter, the Parent listed concerns regarding the Student’s IEP and the school placement. Id at 1-2. The DOE did not submit evidence at hearing describing its response to the TDN.

Fourth, I find that the tuition cost is reasonable. “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.” Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16, 114 S. Ct. 361 (1993); see also J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) (“[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”). The Parent signed an enrollment contract with the Private School on 9/12/2022 for an annual tuition of $85,850.00. Ex. K:1-

3. In light of the highly specialized nature of the program and the small student to teacher ratio, I find this cost to be reasonable. Ex. N:6; Tr. 46.

The DOE argued that I should reduce the tuition award because the Student did not begin attending the Private School until 10/3/2023 but that the contract was for 10 months of tuition (from SeptemberJune). Tr. 62-63. Specifically, the DOE argues that I should pro-rate the tuition by the one month (September) before the Student began attending and reduce a tuition award by $8,580.00. Tr. 62-63.

The DOE did not carry its burden regarding a potential reduction of tuition, and I do not believe the equities support a reduction. First, the equities weigh against the DOE because it was not providing a FAPE to the Student in September 2022 in the first instance. Tr. 20. The DOE could have responded to the Parent’s TDN and addressed her concerns about the IEP, but it did not. Additionally, the DOE could have offered a placement that could implement the program that they themselves recommended, but they did not. Second, the DOE did not clearly establish the appropriate amount of any reduction, as was its burden. NY Educ. Law § 4404(1)(c). The DOE suggested that I prorate the tuition by one month but did not establish whether this month had more or fewer school days than other months, and therefore I do not know whether prorating by school month as opposed to school day would achieve an equitable result. Third, on its face the contract states that there is a flat annual tuition amount, and the DOE did not call any witnesses to establish that the Parent behaved inequitably when signing a 10-month contract or that they could have requested a nine-month contract at a reduced tuition amount based on the Student’s start date. Tr. 19; Ex. K:1. It is entirely conceivable that the Parent had no choice but to sign a 10 month tuition contract simply to secure a seat for the Student at the school, and the DOE did not establish that the Parent had any other option and behaved inequitably by selecting this option. Therefore, considering all the facts, I am not reducing or prorating the tuition award.

After considering the record at hearing, I find that the equities support Parent’s claim for the cost of tuition and order the DOE to fully fund the Student’s tuition to the Private School for the 2022-2023 school year.

D. Other Issues

As discussed above, the DOE denied the Student a FAPE. IHOs have broad authority regarding relief, “restrained only by the Supreme Court’s directive that ‘the relief is to be appropriate’ in light of the purpose of the Act.” L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 125 (2d Cir. 2016) (citing Burlington, 471 U.S. at 369). Additionally, [a]lthough Part B does not address the specific remedies an impartial hearing officer may order upon a finding that a child has been denied FAPE, [the United States Department of Education’s Office of Special Education Program’s] position is that, based upon the facts and circumstances of each individual case, an impartial hearing officer has the authority to grant any relief he/she deems necessary…to ensure that a child receives the FAPE to which he/she is entitled.” Letter to Kohn, 17 IDELR 522, OSEP 1991. As a result, in addition to the award of tuition, I find that other relief is appropriate and warranted.

To remedy the denial of FAPE, the DOE must conduct a new IEP meeting for the Student. The DOE broadly admitted that it denied the Student a FAPE, and this was inclusive of the Parent’s allegation that the DOE did not rely on appropriate evaluative measures in developing the IEP. Tr. 20. The Parent obtained an Autism Diagnostic Evaluation in December 2022, after the IEP meeting, and I order the DOE to consider this testing and the progress reports from the Private School in developing the new IEP. Ex. H, L, M. Additionally, as discussed above, the DOE denied the Student a FAPE by failing to include ESY/12-month services on the IEP, and I order the DOE to include ESY/12-month services on the new

IEP. Tr. 20.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered: (1) The DOE shall, within 35 days of this Order, assign an individual from its Impartial Hearing Order Implementation Unit (“IHOIU”) to serve as a contact person for the Parent regarding the implementation of this Order. The IHOIU contact person shall provide their name, direct phone number, and email address to the Parent and the Parent’s attorney within 35 days of the date of this Order. The contact person shall respond to any inquiry by the Parent (or her attorney) concerning the implementation of this Order within 2 business days.

(2) Within 35 days of the date of this Order, the DOE shall directly pay the Private School $85,850.00 for the cost the Student’s tuition. The DOE shall not require any documentation that is not already in the hearing record to issue payment to the Private School.

(3) Within 35 days of the date of this Order, the DOE shall convene an IEP meeting and develop a new IEP for the Student. The DOE shall include ESY/12-Month services in the IEP. The DOE shall consider the 12/2022 Autism Diagnostic Evaluation and the progress reports from Semester 1 and 2 from the Private School in developing the IEP.

SO ORDERED.

DATED: 7/17/2023

/s Daniel M. Hochbaum

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Impartial Hearing Request 5.02.2023 (3 pages)

B. 10 Day Notice 9.19.2022 (2 pages)

C. Counseling Update 12.20.2021 (2 pages)

D. Education Progress Report 21/22 (8 pages)

E. OT Report 12/20/2021 (4 pages)

F. PT Progress Report 12/28/21 (4 pages)

G. SLT Report 12.20.2021 (4 pages)

H. Evaluation Report 12.2022 (21 pages)

I. Private School Program Description Undated (7 pages)

J. DOE Evaluation and IEP 6.2022 (34 pages)

K. Kindergarten Enrollment Contract Undated (3 pages)

L. Report Card Sem 1 2/03/23 (18 pages)

M. Report Card Sem 2 N. Affidavit 2023 11 6/16/23 (23 pages)

DOE EXHIBITS

1. None N/A N/A

IHO EXHIBITS

I. Request 6/21/2023 (10 pages)

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Footnotes

[1] A detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.