Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 247925 Student’s Name: STUDENT School District: SCHOOL DISTRICT Impartial Hearing Officer: Michele Host Date of Filing: May 3, 2023 Hearing Requested by: PARENT Dates of Hearing: August 1, 2023 Record Close Date: August 31, 2023 Time Sensitive: YES Date of Decision: September 1, 2023 Findings of Fact and Decision Case No. 247925

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 1, 2023:

[REDACTED] (Parent’s Counsel) — Student

[REDACTED] (Law Clerk) — Student

[REDACTED] (Parent) — Student

[REDACTED] (Tutoring Provider) — Student

[REDACTED] (Head of School) — Student

[REDACTED] (DOE Counsel) — District

Findings of Fact and Decision — District

INTRODUCTION AND PROCEDURAL HISTORY

This matter concerns the Student, a [REDACTED]-year-old student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). The

Student’s eligibility for special education supports and services is not in dispute.

This matter comes before me on the Parent’s due process complaint, filed on or about May 3, 2023, concerning the 2020-2021, 2021-2022, and 2022-2023 school years. In the Parent’s due process complaint, the Parent alleges that the DOE failed to provide the Student with a free and appropriate public education (“FAPE”) for the school years at issue As relief, the Parent seeks 800 hours of compensatory tutoring services and MetroCards to allow the Student to travel to and from the tutoring location; tuition reimbursement/direct funding for the Student’s unilateral placement at a private school (“Private School”) during the 2021-2022 and 2022-2023 school years; and reimbursement for the funds the Parent spent on meals and transportation for the Student during the 2021-2022 and 2022-2023 school years.

I was appointed to this matter on May 4, 2023, and held a pre-hearing conference on June 8, 2023, during which I scheduled an impartial hearing for August 1, 2023. On June 26, 2023, the DOE submitted a motion to dismiss the Parent’s claims regarding the 2020-2021 school year on statute of limitations grounds. Parent’s Counsel submitted opposition papers on July 10, 2023. On July 11, 2023, I informed the parties over email that I would reserve decision on the DOE’s motion and consider the DOE’s arguments regarding the 2020-2021 school year as an affirmative defense during the due process hearing. (IHO- I)

The impartial hearing took place on August 1, 2023. I entered the DOE’s exhibits 1-16 into evidence without objection, and I also entered Parent’s exhibits A through CC into evidence Findings of Fact and Decision without objection.^[1] (Tr. 8-13) Both parties made opening statements, and the DOE rested. (Tr.

14-20) The Parent called the director of the tutoring company that evaluated the Student as her first witness (“Director”), and the DOE cross-examined the Director. (Tr. 20-41) The DOE then cross-examined the Head of School and the Parent, who both testified via affidavit. (Tr. 41-69)

The DOE did not cross-examine the pediatric neuropsychologist who prepared the December 23, 2022 neuropsychological evaluation of the Student (“Pediatric Neuropsychologist”), who also testified via affidavit. The Parent then rested. (Tr. 69) Both parties presented closing arguments. (Tr. 69-97) I asked DOE Counsel to submit caselaw on one of the points raised in her argument over email by August 4, 2023, which she did, and Parent’s Counsel submitted a brief response. Both email messages are in the record. (IHO-II)

The record in this case closed on August 31, 2023. A list of the documentary evidence in this proceeding is appended to this decision.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law Art 89 § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. Part 200, and Section 504 of the Rehabilitation Act.

FINDINGS OF FACT

After considering all the evidence, as well as the closing arguments of both parties, my findings of fact are as follows:

Findings of Fact and Decision

The Student completed the tenth grade during the 2022-2023 school year and is classified by the DOE as a Student with Emotional Disturbance. (D-5, p. 1; P-CC, ¶ 15)

The Parent testified about the Student’s early educational history. (P-CC, ¶¶ 4-5) The Parent testified that the Student “has been placed by the DOE in a wide range of classroom settings, from Gifted & Talented in a general education program to an 8:1:1 program in District

75. No program could meet both [the Student’s] academic and social-emotional needs, and the DOE consistently called 911 on and suspended [the Student] for behavioral issues.” (P-CC, ¶ 4)

The Parent also described the “severe bullying” that the Student suffered in school, noting that the Student came home with bruises during elementary and middle school. (Id.) By the time the Student was in sixth grade the Student refused to attend school at all. (Id.)

The Parent testified that the Student was recommended for home instruction for the remainder of sixth grade as a “stop-gap” until a more appropriate school placement could be found. (P-CC, ¶ 5) However, the Parent testified, “[the Student] remained on home instruction for 7th and 8th grade as well due to school closures during the COVID-19 pandemic and due to the DOE’s failure to identify a more appropriate placement for [the Student] during that time.”

(P-CC, ¶ 5)

On March 25, 2020, a Committee on Special Education (“CSE”) held an IEP meeting for the Student, which the Parent attended,. (P-A, p. 20) At the time of the IEP meeting, the Student was a 12-year-old seventh grader. (P-A, p. 3) The IEP states that the Student “was previously enrolled in the Home Instruction Schools Program through February, 2020.” (P-A, p. 3) The

IEP refers to a psychological evaluation of the Student conducted in December 2018, and states that the Student received Average and High Average results on the Woodcock-Johnson IV Test of Cognitive Abilities. According to the IEP, the December 2018 evaluation diagnosed the Findings of Fact and Decision

Student with Generalized Anxiety Disorder, Attention-Deficit Hyperactivity Disorder, and

Disruptive Mood Dysregulation Disorder. (P-A, p. 5)

Reports from the Student’s home instruction teacher incorporated into the March 25, 2020 IEP provide detail regarding the Student’s then-present levels of performance in ELA and Math, and also discuss the Student’s iReady results in narrative format. The teacher reported that the Student could write 3-4 sentence responses to questions about texts and communicate ideas and feelings, but needed additional strategies for determining word meaning, determining theme, making inferences, and practicing summaries. In Math, the Student could add three-digit numbers and knew multiplication facts through 9 times 9. The Student needed additional strategies for rounding whole numbers, subtracting three-digit numbers, and many other grade-appropriate math skills. (P-A, p. 3) The teacher reports state that the Student was unmotivated and had difficulty focusing on any topic for more than five minutes. The Student was reluctant to engage in math-related activities. (P-A, p. 3) In addition, the teacher report states that the Student “has a tendency to shut down and not to do anything. [The Student] also expresses intermittent suicide ideation, for which [the Student] is being treated by a psychiatrist.” (P-A, p.

4) Under “Parent Concerns,” however, the Parent stated that the Student had not expressed any desire to engage in self-harming behavior recently but the Student had not received any home instruction for a month—and the Student’s frustrations stemmed from academic work.

The IEP refers to previous occupational therapy (“OT”) progress reports that allegedly stated that the Student had low muscle tone and exhibited “symptoms of inattention, cognitive impulsivity, and distractibility” as well as sensitivity to sights, sounds, and touch. (P-A, p. 5) The IEP also states that “counseling will be a helpful resource” regarding the Student’s ability to cope and transition. (P-A, p. 4) It is unclear from the IEP, however, whether the Student was Findings of Fact and Decision receiving OT or counseling in March of 2020, and the IEP does not include updated progress reports from an occupational therapist or a counselor. (P-A)

The March 25, 2020 IEP recommended that the Student be placed in a 12:1+1 class in a District 75 school, with individual counseling once a week for 30 minutes; group counseling once a week for 30 minutes; and OT twice a week for 30 minutes. (P-A, p. 14)

Under “Parent Concerns,” the IEP states:

Parent strongly disagrees with the program recommendation. [The Student] was previously in District 75 and it didn’t work for [the Student], it is not appropriate.

Academically, [The Student] is significantly above [the Student’s] peers. Parent was told in the past that she is unable to visit a D75 program. As per IEP meeting, CSE staff advised Parent that she would be able to visit the school prior to accepting placement. Parent expressed interest in a Non-Public school that would meet [the Student’s] needs, and a D75 12:1:1 will not meet [The Student]

needs.

(P-A, p. 19)

The Parent testified that the Student remained on home instruction for eighth grade. (P-

CC, ¶ 5) No evidence has been provided that suggests the DOE issued a school location letter for the Student for the 2020-2021 school year.

A Home Instruction IEP Update (“Update”) dated May 6, 2021, when the Student was in the eighth grade, states that the Student was admitted to the Home Instruction program on September 16, 2020. (P-B) The Update describes the Student as “exceptionally bright and capable.” (P-B, p. 2) The Update states that the Student was assessed in ELA and Math using iReady on April 28, 2021, and that in ELA, the Student had a placement of early to mid-eighth grade in subdomains including vocabulary, comprehension, literature, and comprehension:

informational text. In Math, the Student had a seventh grade placement, with skills ranging from fifth grade to eighth grade depending on the subdomain. The Update notes that the Student Findings of Fact and Decision

“missed a lot of formal classroom time throughout the younger grades. Due to [the Student’s]

lack of academic continuity, there is a large gap between skills [the Student] obtained and those [the Student] hasn’t.” (Id., p. 3)

The Update notes that the Student has problems with organizing thoughts and is “easily overwhelmed.” As a result, “it’s difficult to gauge what is a true academic obstacle versus an emotional one.” (Id.) The Update states that the Student has “immense difficulty regulating [the Student’s] emotions” and demonstrates interfering emotional behaviors. (Id. p. 4) The Update advises that the Student “benefits from small group or one-to-one instruction.” (Id.)

On May 11, 2021, the CSE held another IEP meeting for the Student. (D-1, p. 22) The

Student’s Parents, a District Representative, and the Student’s Home Instruction Teacher participated in the meeting. (D-1, p. 24) Like the March 25, 2020 IEP, the May 11, 2021 IEP references the Student’s December 12, 2018 psychoeducational evaluation, before incorporating the Home Instruction IEP Update basically verbatim. The IEP states that the CSE discussed the Student’s need for a Behavior Intervention Plan (“BIP”) and states that the most recent BIP prepared for the Student when the Student was not enrolled in home instruction is attached to the IEP. (D-1, p. 7) The DOE entered a BIP into evidence dated December 10, 2018, that describes the Student’s behavior when the Student was in the sixth grade. (D-10)

Under Management Needs, the IEP selectively quotes from the Home Instruction IEP

Update. The IEP does not include the Update’s language regarding one-on-one instruction, but does state that the Student would benefit from “a structured academic environment with a small student to teacher ratio” as well as teacher check-ins and direct teacher monitoring. (D-1, pp. 7-

8) Findings of Fact and Decision

The IEP contains eight goals. Three are academic (two directed at ELA and one at

Math), four relate to counseling, and there is one OT goal—although there is no progress report from an OT provider or discussion of OT in the IEP. The OT goal states that the Student “will participate in physical activity from 10 minutes to 20 minutes without fatigue to assist [the Student] in participating in classroom activities for longer periods of time.” (D-1, p. 15)

The May 11, 2021 IEP recommends a 12:1 placement in a special class for the Student on a 12-month basis, with counseling twice a week for 40 minutes on an individual basis and once a week in a group for 40 minutes, as well as OT twice a week for 40 minutes on an individual basis. (D-1, pp. 17-18) The IEP also stated that the Student required a BIP. (D-1, p. 8)

On September 27, 2021, the Parent sent a ten-day notice letter to the DOE stating that the Parent was unilaterally placing the Student at the Private School for the remainder of the 2021- 2022 school year, and that the Parent would seek tuition payment from the DOE. (P-F) The Parent’s ten-day notice letter describes the Student’s educational history in great detail and notes that “[t]o date, the DOE has failed to offer any placement for the 2021-2022 school year.” (P-F, p. 4)

The Private School is a private, comprehensive middle and high school. (P-C; BB, ¶ 7)

All of the Private School’s classes are taught on a one-to-one basis, and the Private School’s curriculum is accredited by the New York State Middle States Association and Advanced Ed.

(P-C; BB ¶¶ 7, 9) When Students enroll at the Private School, the Head of School prepares a formal education plan (“FEP”) for them that “provides the student’s information regarding their disabilities, learning needs, and educational levels,” and the Private School’s special education lead teacher “reviews the student’s IEP and determines appropriate IEP notes/special ed lead notes (similar to IEP goals).” (P-BB, ¶ 9) Students enrolled at the Private School attend a Findings of Fact and Decision homework café where they complete their homework and learn executive functioning skills. (P-BB, ¶ 11; Tr. 52)

The Private School does not offer occupational therapy or individual counseling. (Tr. 47)

The Private School does provide a mentoring program in which students choose a teacher mentor that the students meet with on a monthly basis. (Tr. 46-47) The Private School also provides a life skills and a community minds class, and refers students to therapists, as needed. (P-BB, 15; Tr. 47)

When the Student enrolled in the Private School as a ninth grader, the Student took college preparatory classes, namely Ancient Civilizations, Biology, Digital Photography,

English, and Pre-Algebra. (P-D) The Student was also enrolled in Foundations of Personal

Physical Fitness. (Id.) The Student did not receive counseling or OT at the Private School during the 2021-2022 school year.

The Parent signed a tuition contract with the Private School on September 24, 2021. (P-

D) The tuition contract stated that the Student’s 2021-2022 tuition was $54,392.00, but that the total due if paid by ACH, check, wire, or cash would be $53,304.16. (P-D, p. 3) The Parent testified that she could not afford the Student’s 2021-2022 tuition at the Private School;

[REDACTED]. (P-CC, ¶¶ 2, 13) The Parent secured a loan from a loan society (“Loan

Society”) to pay the Student’s tuition. (P-CC, ¶ 13) The Parent’s promissory note with the Loan

Society for the 2021-2022 school year is in evidence as Parent’s exhibit E, and shows that the Parent promised to pay the Loan Society $53,304.16 upon the Loan Society’s demand. A letter to the Loan Society from the Parent clarifies that the Parent was “borrowing $53,304.16” from the Loan Society to enable the Parent to make a payment for the Student’s educational services beginning in October 2021. (P-E, p. 2) The Parent also wrote that she understood and agreed Findings of Fact and Decision that upon closing her loan, the Loan Society would transfer the loan funds directly to the Private School as payment. (P-E, p. 2) The Parent still owes the Private School $196.40 for the Student’s 2021-2022 tuition. (P-CC, ¶ 13)

The Parent testified that she did not receive a school location letter for the Student’s 2021-2022 school year until January 2022, and “with the school year half over, I could not take this placement into consideration when identifying a placement for [the Student] for the 2021- 2022 school year. Moreover, to transfer [the Student] to the recommended school halfway into the year would have been an extremely difficult transition for [the Student].” (P-CC, ¶ 12; P-H)

The DOE provided a prior written notice and school location letter for the Student dated June 20, 2021, and the Parent testified on cross-examination that she did not move from the address listed on the June 20, 2021 school location letter from 2020 until 2023. (D-3; 4; Tr. 68)

The DOE convened another IEP meeting for the Student on March 8, 2022. (D-5)

Before the IEP meeting, an updated psychiatric evaluation was conducted of the Student, which was considered by the IEP team. (P-CC, ¶ 14; D-11) The evaluator interviewed both the Parent and the Student and reviewed some of the Student’s prior evaluations. (D-11, pp. 1-2) The evaluator assessed the Student using the Vanderbilt Parent Assessment Scale and the Patient

Health Questionnaire. (D-11, pp. 7-9) Notably, the Parent told the evaluator that the Student did not receive mental health treatment outside of school at the time of the evaluation because the Student refused treatment. The Student told the evaluator that mental health treatment “doesn’t work.” (D-11, p. 12) The evaluator ultimately diagnosed the Student with ADHD, predominantly inattentive presentation; Oppositional defiant disorder; Major depressive disorder,

Single episode, Moderate, With Anxious Distress; and Obsessive-compulsive disorder. (D-11, p.

14) During the evaluation, the Student told the evaluator that the Student thought the Student Findings of Fact and Decision would be better off dead or hurting themselves in some way, and the Student said that the Student “didn’t know” if the Student had a plan for self-harm. The Parent told the evaluator that she did not feel the Student wanted to hurt themselves. In the evaluation, the evaluator noted that he told the Parent that he planned to tell the DOE that the Student wanted to engage in self-harm. (D-11, p. 14) The evaluator also recounted the steps he took to inform the DOE that the Student said the Student wanted to engage in self-harm. (D-11, pp. 14-15) The evaluation recommended that the Student follow up with a child and adolescent psychiatrist to “discuss all available treatments and for ongoing diagnostic clarification as needed.” (D-11, p. 14) The psychiatric evaluation contained no recommendations regarding the Student’s educational program or placement, stating “[r]recommendations for school programs and related services can be made at the IEP meeting.” (D-11, p. 14)

The IEP dated March 8, 2022 once again refers to the psychoeducational evaluation dated December 12, 2018. (D-5, p. 1) The IEP also incorporates teacher reports from the Private School, including a report from the Student’s Math teacher stating that the Student is “below grade level—at about a middle school level and is missing some key concepts from elementary school.” (D-5, p. 2) The Student’s Biology teacher wrote that the Student “demonstrated difficulty with reading or comprehending the chapter materials.” (D-5, p. 3) The Student’s

History teacher described the Student as “bright” and noted that the Student asked good questions. (Id.) The IEP also listed the Student’s most-recent grades, which were all variations of “A” grades. (Id., p. 4) The teacher report notes that the Student demonstrated an array of interfering emotional behaviors and “benefits from small group or one-to-one instruction.” (Id.,

p. 5) Findings of Fact and Decision

The IEP recommended a 15:1 special class for the Student, with counseling twice a week for 45 minutes, on an individual basis; counseling once a week in a group of 3 for 45 minutes; and OT twice a week for 45 minutes. The IEP also stated that the Student required a BIP. (D-5, pp. 13, 22-23)

The DOE sent the Parent a prior written notice and school location letter on or about April 7, 2022. (D-8) The prior written notice states that the only evaluation that the CSE considered in recommending a 15:1 placement in a non-specialized public school for the Student was the January 26, 2022 psychiatric evaluation, which, as noted above, contained no recommendations regarding the Student’s educational program or placement. (D-7; 8; 11) The Parent testified that when she received the school location letter she called the school to request a tour and was told by a school administrator that the Student was not assigned to the school. (P-

CC, ¶ 16) The Parent testified that the administrator told the Parent that they would “look into the issue and get back to me, but I never received further communication from them.” (P-CC, ¶

16)

On August 22, 2022, the Parent sent the DOE another ten-day notice letter. (P-P) The ten-day notice letter states that the Parent was placing the Student at the Private School for the 2022-2023 school year, which would begin on September 6, 2023.

The Parent signed three different enrollment contracts with the Private School for the 2022-2023 school year, one for the Fall Semester, one for the Winter Semester, and one for the Spring Semester. (P-L; M; N) The Parent again borrowed money from the Loan Society to finance the Student’s tuition, and the Parent did so by signing multiple promissory notes and letters that are similar to the notes and letters the Parent executed for the Student’s 2021-2022 tuition. (P-O) The Head of School testified that the Student’s tuition has been paid in full for the Findings of Fact and Decision

2022-2023 school year. (P-BB, ¶ 32) In total, the Parent owes the Loan Society $73,435.53 for the tuition the Loan Society paid to the Private School on the Parent’s behalf for the 2022-2023 school year.^[2] (P-O; P-CC, ¶ 17)

The Parent arranged for the Student to be evaluated by the Pediatric Neuropsychologist in the Fall of 2022, and the Pediatric Neuropsychologist issued a written report of her findings on December 23, 2022. (P-S) Although the evaluation found that the Student faced challenges with executive functioning and math, the evaluation assessed the Student’s learning and memory at an average level, and the Student’s reading skills at a high average level. The Student displayed very strong spelling skills and average composition skills. The Student’s reading comprehension skills were assessed at a low average level, and the Student’s math performances “ranged from low average to very low.” (P-S, p. 15) The Pediatric Neuropsychologist noted that “[o]verall, mathematics was an area of academic weakness for [the Student].” (P-S, p. 15)

Regarding the Student’s social-emotional and behavioral functioning, the Pediatric Neuropsychologist noted that although the Parent and the Student’s teacher “reported that [the Student] feels sad/unhappy, lonely/unwanted, embarrassed, and worthless/inferior,” the Student did not report atypical levels of depression. (P-S, p. 16) The Pediatric Neuropsychologist wrote that although the Student had a history of diagnoses associated with defiant behaviors, “it is important to note that these types of behaviors have decreased across settings and are not reported in [the Student’s] current one-on-one school environment.” (P-S, p. 18)

The Pediatric Neuropsychologist diagnosed the Student with ADHD and a Specific Learning Disorder with Impairment in Mathematics. (P-S, pp. 17-18) The Pediatric

Findings of Fact and Decision

Neuropsychologist made detailed recommendations for the Student, including an educational placement in a supportive classroom with a low student-to-teacher ratio that allows for individualized instruction. (P-S, p. 19) The Pediatric Neuropsychologist also recommended counseling, OT (with an emphasis on addressing executive functioning weaknesses), and an Assistive Technology Evaluation. (P-S, p. 20) The Pediatric Neuropsychologist additionally recommended individualized academic support and individualized math remediation. (Id.)

The Director testified that she met with the Student and assessed the Student virtually on June 19, 2023. (Tr. 28-29) The Director is the founder and director of Tutoring Company, which specializes in “providing one-on-one tutoring to special education students using the right combination of research-based, multisensory techniques that are most appropriate for each student.” (Tr. 25-26) The Tutoring Center’s one-on-one evidence-based tutoring covers all core skill areas, as well as executive functioning and study skills. (Tr. 26-27) The Tutoring Center works with “all types of special education students,” including Students with ADHD and oppositional defiant disorder, as well as other behavioral issues. (Tr. 27, 39)

The Director testified that before assessing the Student, she reviewed three of the Student’s prior IEPs, as well as several of the Student’s prior evaluations and the Student’s 2022 progress reports from the Private School. (Tr. 30) The Director’s assessment of the Student encompassed the Wide Range Achievement Test, the Test of Written Language, and the Qualitative Reading Inventory. (Tr. 31; P-V) Regarding the Student’s performance on the assessment, the Director testified that the Student:

. . . [d]id test above grade level for certain skills, but significantly below grade level in others. Specifically [the Student] came out at a mid-12th grade level for decoding and spelling. Those are clearly areas of strength for [the Student]. But notably, [the Student] tested at a low 4th grade level for math, and [the Student]

was in the 10th grade at the time. Findings of Fact and Decision (Tr. 42)

The Director testified that she assessed the Student’s writing skills at a low 8th grade level and assessed the Student’s reading comprehension at an 8th grade level. Ultimately, the Director testified that although the Student “has strengths in decoding and spelling, [the Student]

has significant weaknesses in [the Student’s] math, [the Student’s] reading comprehension, and [the Student’s] writing skills.” The Director recommended that the Student receive “intensive one-on-one, evidence-based, multisensory remediation” for ten hours per week over a two-year school time period, for a total of 800 hours of instruction. (Tr. 34) The Tutoring Center’s rate is

$150.00 per hour. (Tr. 36) The Director testified that the Tutoring Center’s rate is at or below market rate, noting that “there are agencies that charge $175 per hour or more.” (Tr. 36)

LEGAL FRAMEWORK

The IDEA establishes a “substantive right to a ‘free appropriate public education’” for children with disabilities. Endrew F. v. Douglas Co. School Dist, 137 S. Ct. 988, 993 (2017)

(quoting Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982)). The IDEA directs that, in general, an IHO’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). Under the IDEA and New York law, where there is a procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE. See 20 U.S.C. § 1415 (f)(3)(E)(ii); 8 N.Y.C.R.R. § 200.5(j)(4)(ii).

A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s Findings of Fact and Decision procedures is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). “Not every procedural error will render an IEP legally inadequate.” M.H. v. New York City Dep’t of Educ., 685 F. 3d 217, 245 (2d Cir. 2012) (citation omitted). If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y.

2007).

In general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i).

A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. School districts are not required to “maximize” the potential of students with disabilities, but must provide “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003).

The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v.

Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.

Throughout the hearing process, a school district bears the burden to show that it (1)

complied with the IDEA’s procedural requirements; and (2) designed an IEP reasonably Findings of Fact and Decision calculated to confer educational benefit on the student. C.B. ex rel W.B. v. N.Y. City Dep’t of Educ., 2005 U.S. Dist. LEXIS 15215, *37 (E.D.N.Y. June 10, 2005); 20 U.S.C.

1415(i)(2)(C)(iii); see also Walczak, 142 F.3d 119. However, “a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” N.Y. Educ. §

4404(1)(c).

Under the three-prong test established by the Supreme Court in Sch. Comm. of Burlington, Mass, v. Dep’t of Educ. of Mass, 471 U.S. 359 (1985) and Florence County. Sch.

Dist. Four v. Carter, 510 U.S. 7 (1993), parents who unilaterally place their children in private school are entitled to reimbursement from the school district if the services offered by the school district were inadequate or inappropriate, the services selected by the parent(s) were appropriate, and equitable considerations support the parent’s claim. See also Frank G. and Dianne G. v. Bd.

of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert. denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 U.S. LEXIS 11520 (Oct. 15, 2007). The first prong of the Burlington-Carter test encompasses whether the student’s IEP provided a FAPE. Brock v.

Dutton, 2015 U.S. Dist. LEXIS 44254, *14 (S.D.N.Y. March 31, 2015).

The Parent has the burden of proving that the unilateral placement was appropriate. To meet this burden, the Parent must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d.

Cir. 2007) (quoting Frank G. v. Bd. of Educ., 459 F.3d at 364-65). The private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.” Frank G. v. Bd. of Educ., 459 F.3d at 364.

Findings of Fact and Decision

The final prong of the Burlington-Carter test involves the balancing of the equities. 20 U.S.C. § 1412(a)(10)(C)(iii). Reimbursement may be limited or denied if the parent failed to act reasonably, did not cooperate with the DOE’s attempts to evaluate the student, or failed to provide proper notice of the parent’s rejection of the Student’s placement. See 20 U.S.C. § 1412(a)(10)(C)(iii). When considering whether the parent has shown that the equities weigh in the parent’s favor, it is important to consider “whether the [parent] cooperated with the district in its efforts to meet its obligations under the IDEA.” C.L v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014).

Compensatory Education

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir.

2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” P. ex rel. Mr. & Mrs. P. v.

Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).

Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child’s education.” Somoza v.

New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008) (citations omitted). Courts

“may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015). Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.” Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) (emphasis in Findings of Fact and Decision original). An award of compensatory education “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid, 401 F.3d at 518, 524. Compensatory education awards may include reimbursement for out-of-pocket educational expenses paid by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate alternative. Foster

v. Bd. Of Educ., 611 Fed. App’x 874, 878-79 (7th Cir. 2015); Batchelor v. Rose Tree Media Sch.

Dist., 759 F.3d 266, 277-78 (3d Cir. 2014).

Section 504 of the Rehabilitation Act

Section 504 prohibits discrimination against qualified students with a disability. 29 U.S.C. § 794(a). Section 504 states, “[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).

Section 504 requires that school districts provide qualified students with a “free appropriate public education… regardless of the nature or severity of the person’s [disability].”

34 C.F.R. § 104.33(a). Under Section 504, an appropriate education means “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to [504’s] procedures.” 34 C.F.R. § 104.33(b).

Section 504 requires that recipients of federal funds that operate public educational programs or activities must “establish and implement . . . a system of procedural safeguards that includes...an impartial hearing with opportunity for participation by the [student’s] parents or Findings of Fact and Decision guardian and representation by counsel, and a review procedure.” 34 C.F.R. § 104.36. Impartial

Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act if delegated the authority by the Local Education Agency (LEA). The New York City Department of Education delegated to OATH the authority to adjudicate due process complaints under Section 504.^[3]

ANALYSIS AND DECISION

Statute of Limitations: 2020-2021 School Year The IDEA requires that unless a state establishes a different limitations period under state law, a party must request a due process hearing within two years of when the party knew or should have known of the alleged action that forms the basis of the complaint. 20 U.S.C. § 1415(f)(3)(C); see also 20 U.S.C. § 1415(b)(6)(B); Education Law § 4404(1)(a); 34 C.F.R. § 300.507(a)(2); 34 C.F.R. § 300.511(e); 8 N.Y.C.R.R. § 200.5(j)(1)(i); Somoza v. New York City Dept. of Educ., 538 F.3d 106, 114-15 & n.8 (2d Cir. 2008). Since an IDEA claim accrues when a parent knew or should have known about the claim, “[d]etermining when a parent knew or should have known is necessarily a fact-specific inquiry.” K.C. ex rel. J.C.T. v. Chappaqua Cent. Sch. Dist., 2018 U.S.

Dist. LEXIS 169438, *37 (S.D.N.Y. Sept. 29, 2018) (internal citation and quotation marks omitted).

In 2004, Congress amended 20 U.S.C. § 1415(b)(6)(B), which essentially mirrored the statute of limitations at § 1415(f)(3)(C) in almost all respects: they both describe a two-year time limit that hinges on the reasonable discovery date; they both provide that any state statute of limitations will override this timeline; and they both incorporate the two exceptions to the statute

Findings of Fact and Decision

of limitations set forth in § 1415(f)(3)(D). Unlike § 1415(f)(3)(C), however, § 1415(b)(6)(B)’s two-year limitations period runs backward instead of forward from the reasonable discovery date.

G.L. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601 (3d Cir. 2015). Courts have resolved this ambiguity by holding that the discovery rule applies. Congress did not intend the IDEA's statute of limitations to be governed by a strict occurrence rule. Both § 1415(b)(6)(B) and §

1415(f)(3)(C) include language pegging the limitations period to the date on which the parent or agency “knew or should have known about the alleged action that forms the basis of the complaint,” not the date on which the action occurred. See § 1415(b)(6)(B), (f)(3)(C). Avila v.

Spokane Sch. Dist. 81, 852 F.3d 936 (9th Cir. 2107). If Congress intended a strict occurrence rule, there would have been no need to include the “knew or should have known” (“KOSHK”) language in § 1415(b)(6)(B) and § 1415(f)(3)(C). Id. The statute of limitations begins to run not when the injury has occurred, but when the parent “knew or should have known” of the injury. These dates, of course, can be the same.

Once the KOSHK date is established, the claim is ripe for adjudication and the two-year statute of limitations begins to accrue from that date. On March 7, 2020, due to the unprecedented

COVID-19 pandemic, then New York State Governor Cuomo signed Executive Order (“EO”)

202.8 which was subsequently extended by a series of EOs, which both on their face and following judicial interpretation, had the effect of tolling, rather than suspending, all statutory timeframes through November 3, 2020. See Brash v. Richards, 195 A.D.3d 582 (2nd Dept., 2021); Matter of

Roach v. Cornell Univ., 207 A.D.3d 931 (3rd Dept., 2022); Lopez-Motherway v. City of Long Beach, 2021 U.S. Dist. LEXIS 48597. This tolling of the statute of limitations necessarily adds an additional 241 days, almost 8 months, to the two-year time from the KOSHK for a timely filing of a due process complaint.

Findings of Fact and Decision

The IDEA’s statute of limitations is viewed as an affirmative defense in New York. M.G.

v. New York City Dept. of Educ., 15 F. Supp. 3d. 296, 304 (S.D.N.Y. 2014), citing Somoza, supra.

Accordingly, the DOE has the burden of proving that the statute of limitations barred plaintiff’s claims. Id. As an affirmative defense, the statute of limitations is considered waived if not raised at the initial administrative proceeding. Id. For a defendant to avail itself of this affirmative defense, factual development beyond those pled is typically required. Wong v. State Dep’t of Educ., 2018 U.S. Dist. LEXIS 10280, *19 (D. Conn. 2018), citing In re S. African Apartheid

Litig., 617 F. Supp 2d 228, 287 (E.D.N.Y. 2009).

Moreover, the IDEA creates two tolling exceptions to the two-year statute of limitations period. A claim will not be considered untimely if “the parent was prevented from requesting the hearing due to (i) specific misrepresentations by the local education agency that it had resolved the problem forming the basis of the complaint, or (ii) the local educational agency’s withholding of information from the parent ‘that is required to be provided under the IDEA.’ K.H. v. New York City Dep't of Educ., 2014 U.S. Dist. LEXIS 108393 (E.D.N.Y. 2014) (citing20 U.S.C §

1415(f)(3)(D)).

Section 504 of The Rehabilitation Act follows a similar analysis as IDEA, in that claims accrue “when [plaintiff] knew or had reason to know of the injury serving as the basis for his claim.” Harris v. City of N.Y., 186 F.3d 243, 247 (2d Cir. 1999). New York courts have found, however, that the statute of limitations for claims raised under section 504 is three years, rather than the two years applicable under IDEA. Bd. of Educ. v. C.M., 744 Fed Appx. 7 (2d Cir. 2018), citing Harris.

Here, DOE filed a Motion to Dismiss all claims related to the 2020-2021 school year as being time barred under the IDEA’s Statute of Limitations. (D-16, p. 3) In the DOE’s motion to Findings of Fact and Decision dismiss, the DOE asserted that the KOSHK date was March 25, 2020—the date of the Student’s IEP meeting. (Id., p. 4) In light of the COVID tolling, that would mean that the Student’s claim for the 2020-2021 expired on November 4, 2022. The due process complaint in this matter was not filed until May 2, 2023. (Id.; D-15) Given that the KOSHK date was in dispute and therefore there remained a material issue of fact in dispute, I declined to decide the motion on papers and directed the parties to address the issue at the substantive due process hearing. DOE Counsel invoked the defense in her opening statement as well as in her closing argument.

In response to the DOE’s assertion that the KOSHK date was March 25, 2020, Parent’s Counsel argued that under the plain text of the IDEA, “there can be no dispute” that the Parent may claim violations from May 2, 2021, to May 2, 2023. Parent’s Counsel then wrote that under New York law, “once a parent has established that the complaint is timely, she is entitled to claim the whole school year as the violation,” citing C.B. v. Pittsford Central School District, 2010 U.S.

Dist. LEXIS 37490 (W.D.N.Y., April 15, 2010).

I am unconvinced by Parent’s argument. In Pittsford, the court found that the KOSHK date fell within the two-year statute of limitations period, and because of that, found that the Parent’s claim for the entire school year in which the KOSHK date fell was timely. Pittsford, 2010 U.S. Dist. LEXIS *55-56. Here, Parent seems to be arguing that because the Parent filed her complaint on May 2, 2023, and the Parent could claim violations from May 2, 2021 to May 2, 2023, the statute of limitations period encompasses the KOSHK date (although Parent’s Counsel does not clearly state what the KOSHK date is), therefore making the Parent’s claim viable. I do not believe Pittsford supports the Parent’s argument.

However, I find that the statute of limitations is tolled in this matter by the DOE’s failure to provide the Parent with procedural safeguards. Parent’s Counsel argued that by failing to Findings of Fact and Decision provide the Parent with procedural safeguards during the 2020-2021 school year, the DOE failed to provide the Parent with information that is required to be provided under the IDEA. (P-W, p.

3-5) The IDEA requires that parents be provided with procedural safeguards at least once a year.

20 U.S.C § 1415(d)(1)(A); see also 8 N.Y.C.R.R. § 200.5(f). In this matter, the DOE has provided no evidence that it gave the Parent procedural safeguards during the 2020-2021 school year.

Instead, the DOE argued that it provided sufficient procedural safeguards to the Parent because a social worker allegedly discussed the Parent’s due process rights with her during a 2013 social history update and/or the Parent was given directions regarding how to obtain a copy of the procedural safeguards in a 2018 prior written notice. (D-16, p. 4) Neither of those supposed notifications would satisfy the IDEA as adequate procedural safeguards for the 2020-2021 school year. The Second Circuit has held that the IDEA’s notice requirement acts as an equitable toll on the two-year limitations period specifically to “minimize[] the inherent inequity between the legal knowledge and experience of the school board and that of the parent.” M.D. v. Southington Board of Educ., 334 F.3d 217, 223-24 (2d Cir. 2003). I find that the Parent has successfully shown that the DOE failed to provide the Parent with procedural safeguards regarding the Parent’s rights related to the 2020-2021 school year, and therefore the statute of limitations is tolled.^[4]

Burlington-Carter Test Prong One

As to Prong I of the Burlington-Carter test, the Supreme Court has found a reviewing court may expect school district staff “to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137

Findings of Fact and Decision

S.Ct. 988, 1002 (2017). In this case, the DOE entered documents into the record, but did not call any witnesses to explain the decisions documented in those documents. Moreover, the weight of the evidence in this matter supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer the Student a FAPE for any of the school years at issue.

To address each year in turn, the DOE does not contest that the DOE failed to provide the Student with a school placement for the 2020-2021 school year. To carry its burden under Prong I, the DOE must prove that it timely offered the Student a placement (a school that would implement the IEP). Failure to do so constitutes a procedural violation that significantly impedes the parent’s ability to participate in the decision-making process regarding the provision of a FAPE. V.A. v. City of N.Y., No. 20-CV-0989 (EK) (RML), 2022 U.S. Dist. LEXIS 84556

(E.D.N.Y. May 10, 2022). In the instant case, the DOE provided no evidence suggesting that a

2020-2021 placement was ever offered to the Student, and the Parent’s evidence shows that the Student was never, in fact, offered a placement.

Turning to the 2021-2022 school year, as an initial matter, it is unclear whether the DOE sent the Parent a timely school location letter. The Parent testified that the first school location letter she received for the 2021-2022 school year was the one she received in January 2022. (P-

CC, ¶¶ 10; 12) The DOE introduced a school location letter dated June 20, 2021, and argued

“[t]the record also establishes that a school location letter was mailed on June 20th, 2021, offering a public school placement, and that the mailing address . . . is still current for the Parent.” (Tr. 72) The fact that a school location letter exists bearing the Parent’s correct address is not itself proof that the letter was mailed, or that the Parent received it. See V.A. v. City of New York, 2022 U.S. Dist. LEXIS 84556, *21-23 (E.D.N.Y. May 10, 2022) (holding that Findings of Fact and Decision

“detailed explanations of office mailing procedures” are necessary to give rise to the presumption of mailing under New York law). Notably, the Parent did not testify that she received the June 20, 2021 school location letter. (P-CC, ¶ 10)

In addition to the DOE’s apparent failure to provide the Parent with a timely school location letter, it is clear that the DOE did not provide the Student with a FAPE for the 2021- 2022 school year because the May 20, 2021 IEP contained insufficient goals for the Student and ignored the home instruction update’s emphasis on the Student’s need for one-to-one instruction.

The May 20, 2021 IEP states that it based on the Student’s home instruction update dated May 6, 2021, a psychoeducational evaluation dated December 12, 2018, and a DOE-conducted behavioral intervention plan dated December 10, 2018. (D-2; 9; 10) Given the Student’s significant academic needs in Math outlined in the IEP (“[the Student’s] largest academic deficit is Math. [The Student] lacks many of the skills that are required for a robust understanding of grade-level material”), the IEP’s inclusion of only one goal that addresses Math is completely inadequate. (D-1, p. 4) Moreover, the most current evaluative material provided for the May 20, 2021 IEP was clearly the home instruction update, which emphasized that the Student “benefits from small group or one-to-one instruction.” (P-B, p. 4) Given this statement, and the other information contained in the home instruction update regarding the Student’s need for a small class size, the CSE’s recommendation that the Student be placed in a 12:1 program is fundamentally flawed.

Regarding the 2022-2023 school year, the March 8, 2022 IEP team recommended a less restrictive placement than the prior IEP, because the IEP team “took into consideration the progress the Student had made in [the Student’s] grades and transcripts from the previous years.”

(Tr. 72-73) But the comments of the Student’s teachers at the Private School emphasize that the Findings of Fact and Decision

Student “benefits from small group or one-to-one instruction.” (D-5, p. 5) It is illogical that the

March 8, 2022 IEP team would take the Student’s progress into consideration, and not take into consideration the fact that the Student’s progress was made in a 1:1 learning environment.

Ultimately, there is no evidence in the IEP suggesting that the Student would succeed in a 15:1

placement.

Moreover, at the time of the March 8, 2022 IEP, the Student was 14 years old and about to enter 10th grade. The Parent testified that during the IEP meeting, “the DOE didn’t discuss any transition goals or services” for the Student. (P-CC, ¶ 15) The IEP refers to the Student enrolling in college after high school and planning to obtain a part-time job/summer employment, but the section under “Transition Needs” is blank. (D-5, pp. 13-14) IEPs are required to contain information about “the transition services needed for a child as he or she begins to leave a school setting.” Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 377

(S.D.N.Y. 2006) (citing 20 U.S.C. § 1414(d)(4)(A)(i); 34 C.F.R. § 300.320(a)(1); see also 8 N.Y.C.R.R. § 200.4(d)). Although “not every procedural error will render an IEP legally inadequate,” M.H., 685 F.3d at 245, in this case, the DOE’s failure to include transition information for the Student combined with the DOE’s failure to accord proper weight to the teacher reports in the IEP denied the Student a FAPE for the 2022-2023 school year.

For all of these reasons, I find that the DOE did not provide the Student with a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years.

Burlington-Carter Test Prong Two: The Appropriateness of the Parent’s Unilateral Placement

A unilateral private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. The Findings of Fact and Decision

relevant standard is whether “the unilateral private placement . . . provides educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo, 489 F.3d at 115 (quotations omitted). No single factor is dispositive in this analysis. Id. The private placement does not necessarily need to provide certified special education teachers or every special service that could assist in maximizing the Student’s potential. Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 2020 U.S. Dist. LEXIS 16007 (S.D.N.Y. 2020), aff’d 2020 U.S. App. LEXIS 39739 (2d Cir. 2020) (citation omitted). Moreover, parental placements are not subject to the same mainstreaming requirements as a school district placement. Frank G. v.

Bd. of Educ., 459 F. 3d at 364.

In this case, the Parent submitted brochures describing the Private School’s educational program, as well as the testimony of the Head of School and the Parent. The DOE provided documentary evidence regarding the educational benefit provided to the Student by the Private School, namely, the Student’s transcripts, progress reports, and teacher reports. (D-12; 13; 14)

The Student’s transcript contains information regarding both the Student’s 2021-2022 and 2022-2023 school years. (D-12) During the Student’s 2021-2022 school year, the Student received “A” grades (including A+ grades in Biology A and Foundations of Personal Fitness A, as well as several A- grades), and a B in Pre-Algebra A. As of February 10, 2023, when the transcript was printed, Pre-Algebra B was still listed as “in progress” for the Student for the 2021-2022 school year. (Id.) Many of the Student’s 2022-2023 classes were still in-progress as of February 10, 2023, but the Student had already earned a B+ in Chemistry A, an A+ in Guitar

1A, an A- in Modern World History A, and an A in Personal Fitness 2A. (Id.) The one-page progress report entered into evidence seems to provide the Student’s grades for several classes that were not yet graded on the Student’s transcript, but the progress report provides no legend or Findings of Fact and Decision date, and is not signed by a school official. (D-13) Therefore, although I will note that the progress report suggests the Student earned a C- in Chemistry B, a B in Pre-Algebra B, an A+ in

Piano A, an A- in English 10A, an A- in Modern World History B, and an A in Personal Fitness

2B, I give the progress report somewhat less weight than the Student’s transcript. (D-13)

The DOE introduced three comments from the Student’s 2022-2023 teachers into evidence. The Student’s History teacher described the Student as “bright and capable,” “polite and respectful,” and “exceptionally quiet.” (D-14, p. 1) The History teacher wrote that the

Student completes the Student’s homework on time but “the responses often suffer from brevity.” (Id.) The History teacher noted that the Student needs very specific directions for assignments. The Student’s English teacher described the Student as “extremely creative” and wrote that the Student “writes some of the best creative fiction of any high school student I’ve had.” (D-14, p. 1) Although the English teacher wrote that the Student reads at grade level, the English teacher wrote that the Student’s writing was below grade level. The English teacher wrote that the Student struggles with essay writing and “connecting ideas logically on paper.”

(Id. at p. 2) The Student’s Piano teacher described the Student as “smart, quick to catch on, and very motivated,” but wrote that the Student is “not always verbal” which can make it difficult to know if the Student understands the material. (Id. at p. 2)

The Head of School has a master’s degree in childhood education, grades one through six, with a concentration in students with disabilities. (P-BB, ¶ 6) The Head of School has been employed in her current position since August 2022, and was Head of School at another location of the Private School immediately prior to assuming her current position. (P-BB, ¶¶ 2-5, 25)

The Head of School has observed the Student in class, observed the Student on campus, and interacted with the Student and the Student’s teachers and family. (Id., ¶ 23) Although the Head Findings of Fact and Decision of School did not observe the Student during the 2021-2022 school year, the Head of School spoke to the Student’s teachers about the Student’s academic performance during the 2021-2022 school year. (Id.) The Head of School testified that the Student’s teachers reported the Student is “bright and creative” but shy, and that “with appropriate pacing and materials broken down into approachable chunks of information, [the Student] is able to perform near grade level.” (P-BB, ¶ 25)

The Head of School reported that during the 2022-2023 school year, the Student “opened up,” developed trusted relationships with teachers, and had no attendance issues “despite [the Student’s] history of school avoidance.” (P-BB, ¶ 26) The Student grew socially, participating in more field trips and developing friendships. (Id.) Although the Student was still working on emotional regulation, the Student “opened up further to [the Student’s] teachers so they understand when [the Student] is feeling frustrated and can adjust and scaffold material to meet [the Student’s] academic and social-emotional needs.” (Id.) Overall, the Head of School testified that the Student “made significant academic and social-emotional progress during the 2021-2022 and 2022-2023 school years.” (P-BB, ¶ 30)

The Parent testified in detail regarding the Student’s progress at the Private School. (P-

CC, ¶¶ 18-20) The Parent testified that, in contrast to when the Student used to refuse to attend school, the Student now “looks forward to [the Student’s] classes and the academic challenges teachers provide to [the Student], which have helped build up [the Student’s] core academic skills and are individualized to meet [the Student’s] learning needs.” (P-CC, ¶ 19) The Parent also testified that since enrolling at the Private School, the Student “has experienced no behavioral issues because the setting provides the appropriate program to maintain [the Findings of Fact and Decision

Student’s] emotional regulation and to allow [the Student] to engage with [the Student’s]

academic curriculum.” (P-CC, ¶ 20)

As noted earlier, the DOE did not object to the Parent’s evidence being entered into the record, including the sworn affidavits of the Head of School and the Parent. The DOE’s cross-examination of the Head of School and the Parent did not undermine either witness’s credibility or testimony. I therefore credit both witnesses’ testimony in full.

The Student has clearly made substantial academic progress at the Private School. The

Student’s grades—with the exception of Chemistry 2—are stellar, and the Student’s teachers’ positive comments underscore that the Student is receiving educational benefit from the Private School. (D-12; 13; 14) Although no single factor is dispositive when determining whether a parent’s 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.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 365 (2d Cir. 2006) (internal citations omitted). In this particular case, the Student’s academic performance over the course of the Student’s time at the Private School supports the Parent’s position.

The Private School does not provide OT or counseling. The fact that a private placement does not provide a student with a service recommended by an IEP does not necessarily render a private placement inappropriate. T.K., 810 F. 3d at 878 (affirming a district court decision overturning SRO and IHO decisions that found a private placement was inappropriate because it offered a student inadequate physical therapy, occupational therapy, speech therapy, and counseling services). Parents are only obligated to show that a unilateral placement is reasonably calculated to provide the Student with educational benefits, not that it “furnishes Findings of Fact and Decision every special service necessary to maximize their child’s potential.” Frank G. at 365. The test for a unilateral private placement “is that it is appropriate, and not that it is perfect.” T.K. v. New

York City Dep’t of Educ., 810 F.3d 869, 878 (2d Cir. 2016) (quoting C.L., 744 F.3d at 837).

In this case, objective evidence shows that the Student’s educational program at the Private School is tailored to the Student’s individual needs and that the Student is making academic progress. Frank G., 459 F.3d at 364-65. Regarding OT, the ongoing recommendations for OT seem to be at least partially rooted in the Student’s executive functioning issues, which are being addressed by the Private School using the homework café.

(P-BB, ¶ 11, 14; Tr. 52) Given the Student’s diagnoses and history, the Private School’s lack of counseling is of more concern, but the Private School’s mentoring program is providing the Student with at least some emotional support.

I find that the Parent has met her burden to prove that the private program offers an educational program that meets the Student’s needs under Prong Two of the Burlington/Carter standard. The weight of the evidence establishes that the Student’s individual special education needs are being addressed by the Private School and that the instruction offered is “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364.

Burlington-Carter Test Prong Three: Equitable Factors

Equitable factors are relevant to fashioning relief under the IDEA. Burlington, 471 U.S. at 374; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 (2d Cir., 2014); M.C. v. Voluntown Bd.

of Educ., 226 F.3d 60, 68 (2d Cir. 2000) (citations omitted); see also Carter, 510 U.S. at 16 (“Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education Findings of Fact and Decision was unreasonable”). Reimbursement of private school tuition may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 300.148(d); see S.W. v.

New York City Dep’t of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 U.S. Dist. LEXIS 11354 (S.D.N.Y. Feb. 4, 2008); Werner v. Clarkstown

Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 (S.D.N.Y. 2005).

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, “that they were rejecting the placement proposed by the public agency to provide [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” 20 U.S.C. § 1412(a)(10)(C)(iii)(I); see 34 C.F.R. § 300.148(d)(1). This statutory requirement “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools.” Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004).

In this case, the record does not establish that the Parent “acted with the requisite level of unreasonableness or misconduct that reimbursement should be denied on equitable grounds.”

Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ., 550 F. Supp 2d 420, 437 (S.D.N.Y.

2008). There is nothing in the hearing record to suggest, let alone demonstrate, that the Parent interfered in any manner with the CSE’s evaluation of the Student or prevented it from providing the Student with a FAPE for the school years at issue in this case. The Parent attended and Findings of Fact and Decision

participated in the Student’s IEP meetings and submitted timely ten-day letters for each school year when the Student was unilaterally placed at the Private School. (P-A; F; P; D-1; 5)

In the DOE’s closing argument, the DOE discussed the Parent’s contract with the Loan

Society for the Student’s tuition funding. (Tr. 77) DOE Counsel stated:

[T]hat contract contains a provision—or it contains an addendum which states that the Parent asserts, based on facts and applicable law, that counsel is optimistic about the success of the impartial—of the outcome of the impartial hearing. That, coupled with the fact that no collateral was requested for this contract makes this contract problematic, and does not—and I would submit the Parent has not established an unequivocal obligation to pay on this contract and privity of contract for that reason.

(Tr. 77)

I asked the DOE to submit case law in support of the agency’s position, and the DOE provided two cases. (IHO-II) The first case, D.A. v. New York City Dep’t of Educ., 769 F.Supp.2d 403 (S.D.N.Y. 2011), is cited for the principle that the parents bear the burden of production and persuasion with respect to whether they are legally obligated to pay the Student’s tuition. The second case, E.M. v. New York City Dep’t of Educ., is cited for the proposition that courts considering IDEA claims may consider “whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect.” 758 F.3d 442, *16. Notably, E.M. also holds that contracts are subject to a “plain language interpretation” and that so long as a contract’s terms were plainly established in the written agreement, the contract is enforceable as a matter of law. E.M., 758 F.3d at 458.

The DOE argued that the Parent’s agreement with the Loan Society established collusion because the loan agreement did not require collateral, and the Parent’s letter expressing optimism about this case and giving her attorneys authority to pay the principal owed if this case is successful Findings of Fact and Decision shows that the loan agreement does not bind the Parent and suggests collusion between the Parent, the Loan Society, and the Private School. (IHO-II)

The DOE’s arguments—some of which were never raised on the record at hearing—are unpersuasive. First, the Southern District has held that the fact that an IDEA plaintiff “ultimately expected to prevail in her claims against the DOE does not indicate that she believed that she had no obligation to pay under the contract.” A.R. v. N.Y. City Dep’t of Educ., 2013 U.S. Dist. LEXIS

135855, *22. In addition, as Parent’s Counsel pointed out in her response to the DOE’s arguments, the Parent signed multiple promissory notes outlining her obligation to pay the Loan Society the amounts that she borrowed and that the Loan Society then paid to the Private School on her behalf.

(P-E; O)

In summary, the equities weigh in the Parent’s favor. The record supports a finding that the Parent cooperated fully with the DOE at IEP meetings and timely sent the requisite ten-day notice to the DOE in advance of the commencement of the 2021-2022 and 2022-2023 school years.

The Parent incurred an obligation to pay the Private School $54,782.00 for the 2021-2022 school year and $73,147.00 for the 2022-2023 school year, which she satisfied through her agreements with the Loan Society, except for the outstanding $196.40 for the 2021-2022 school year that remains to be paid to the Private School. Given my finding that the Private School is the appropriate placement for the Student, the Student is entitled to an award for reimbursement for the Student’s attendance at the Private School for the 2021-2022 and 2022-2023 school years, to be paid directly to the Loan Society, except for the outstanding $196.40 that needs to be paid to the Private School directly for the 2021-2022 school year. See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453-54 (2d Cir. 2013) (“direct payment fits comfortably within the Burlington-Carter framework: like reimbursement, direct payment to the private school that Findings of Fact and Decision provided the required educational program ‘merely requires [the school district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.’”) (quoting Burlington, 471 U.S. at 370-71).

While the amount of tuition at the Private School is not insignificant, I do not find that the tuition costs are excessive or unreasonable, given the Private School’s educational program for the Student. Carter, 510 U.S. 7, 15-16. After considering the entire record presented at hearing, I find that the equities support the Parent’s claim for reimbursement and direct funding.

OTHER RELIEF SOUGHT

In addition to tuition reimbursement and direct funding for the Student’s attendance at the Private School for two school years, to be paid to the Loan Society and the Private School, the Parent seeks additional relief which I will discuss below.

Compensatory Education

The Parent also requests one-on-one tutoring for the Student, to be provided by the Tutoring Center. In support of Parent’s argument, the Parent presented the testimony of the Director, who recommended that the Student receive “intensive one-on-one, evidence-based, multisensory remediation” for ten hours per week over a two-year school time period, for a total of 800 hours of instruction. (Tr. 34; P-V).

There are generally two approaches to fashioning a compensatory education award: the “quantitative” approach followed in the Third Circuit, see, e.g., M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996) (holding that a student denied a FAPE is entitled to compensatory education equal to the period of deprivation), and the “qualitative” approach relied on by the 6th and D.C. Circuits. See, e.g., Reid, 401 F.3d at 518, 524 (requiring a flexible, fact-specific approach in which the award relies “on individual assessments” and is “reasonably Findings of Fact and Decision calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.”).

The Second Circuit has not taken a preferred approach, opting instead as a general practice to “leave the mechanics of structuring the compensatory education award to the district court’s sound discretion,” so long as “the relief is [] appropriate in light of the purpose of the Act.” Doe v.

East Lyme, 790 F.3d at 454, 457; accord L.O. ex rel. K.T. v. New York City Dept. of Educ., 822 F.3d 95, 125 (2d Cir. 2016); see also Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *26 [E.D.N.Y 2008) (noting that “the Second Circuit has not articulated a test for determining how [compensatory education] services are calculated,” and awarding compensatory relief equal to the amount of time the student was deprived of services). In calculating an award, a court can also consider “whether compensatory education should be limited to the kinds of services specified in the [IEP] or encompass analogous educational services appropriate to the Student’s current’s needs;” however, the ultimate award “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Doe. v. East Lyme, 790 F.3d at 457 (internal citations omitted).

Under New York law, the DOE has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award under the IDEA. Educ. Law § 4404(1). It is “incumbent on the district to develop the hearing record to establish the appropriate amount of relief needed to remediate the district’s failure.” Application of the New York City Department of Education, Appeal No. 14-014 (2014). “It is not persuasive for the district to simply fault the parent’s request for relief without also explaining its own view of what type of compensatory education relief would be appropriate to remediate the district’s failure to provide Findings of Fact and Decision the student with a FAPE.” Application of the New York City Department of Education, Appeal No.

14-014 (2014).

In this case, DOE presented no direct evidence regarding the amount of compensatory services that would be appropriate for the Student. The DOE did provide evidence regarding the Student’s high level of academic performance at the Private School, and argued that the “critical analysis is not whether or not the student is at grade level, but whether they were making progress in light of their circumstances, and DOE submit[s] that the Student was.” (Tr. 75) The DOE also noted that the Pediatric Neuropsychologist “testified to how the Student is meeting or exceeding expectations in many cognitive areas, and demonstrating strong spelling skills and that the – as a result, the Student’s relative challenges in math need to be placed in context.” (Tr. 76)

Parents have a responsibility to identify the specific remedy they are seeking so that the IHO can craft an appropriate remedy for the DOE’s failure to provide the Student with a FAPE.

JKG by JK and JKG v. Wissahickon Sch. Dist., 2021 WL 1122526, at *8 (E.D. Pa. 2021), (noting that “[w]hile the Court has discretion to fashion a remedy that it deems appropriate, the Court cannot unilaterally supply the facts necessary to reach such a decision”); Butler v. Dist. of Columbia, 275 F. Supp. 3d 1, 5 (D.D.C. 2017) (holding that a hearing officer “must solicit the evidence necessary to determine the student’s specific educational deficits resulting from his loss of FAPE and the specific compensatory measures needed to best correct those deficits”) (internal quotes and citation omitted). As discussed above, the Parent presented evidence suggesting that

800 hours of compensatory tutoring would be an appropriate remedy in this matter.

Given the academic progress the Student has made at the Private School, and the Student’s strengths in spelling and decoding, I am unconvinced that 800 hours is the appropriate amount of compensatory relief in this matter. The Pediatric Neuropsychologist recommended Findings of Fact and Decision

“individualized math remediation” to help the Student develop the Student’s foundational math skills. (P-AA, ¶ 33; P-S) Given this recommendation, the Student’s academic progress, and the Student’s multiple academic strengths, 400 hours of tutoring would be more appropriate here.

Meal Reimbursement

The Parent also requests reimbursement for the amount she spent on the Student’s meals on school days during the 2021-2022 and 2022-2023 school years. (P-A; CC, ¶ 22) The Parent testified that when the Student attended public school, the Student received school breakfast and lunch for free. (P-CC, ¶ 22)

In C.D. v. New York City Dep’t of Educ., 2009 U.S. Dist. LEXIS 10167 (S.D.N.Y. Feb.

11, 2009), the parents of six students with disabilities attending non-public schools at public expense sued the DOE because once the students stopped attending public schools, they were no longer provided with free breakfast or lunch or reimbursed for those meals by the DOE. The

Southern District of New York ultimately found that the students had stated claims of disability discrimination under Section 504 of the Rehabilitation Act based on the DOE’s failure to provide them with school meals because they were placed at private schools.

Section 504 prohibits discrimination against qualified students with a disability. 29 U.S.C. § 794(a). Section 504 states, “[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).

To show a violation of the Rehabilitation Act, “a plaintiff must show that he or she (1)

has a disability; (2) is ‘otherwise qualified’ for the benefit that has been denied, and (3) has been denied the benefit by reason of the disability.” C.D., 2009 U.S. Dist. LEXIS 10167, *23. If a Findings of Fact and Decision

plaintiff does not comport with the essential requirements of a program a court can determine if the plaintiff would meet those requirements if a reasonable accommodation were made. Id.

In this case, the Student has been diagnosed with ADHD, which is a mental impairment that substantially limits the major life activity of learning. (P-S) Accordingly, the Student has a disability within the meaning of the Rehabilitation Act. The Parent has introduced evidence that the Student would qualify for free school breakfast and lunch if the Student attended a DOE public school, and the DOE did not contest the Student’s eligibility. (P-CC, ¶ 22) To the extent that the Student is not “otherwise qualified” for free school breakfast and lunch because the Student is enrolled in non-public school, the DOE could reasonably accommodate the Student by reimbursing the Parent for the Student’s meals. C.D., 2009 U.S. Dist. LEXIS at *31. Finally, the facts set forth in the record in this matter establish that the Student was denied free breakfast and lunch because of the Student’s disability. Id. at *34. Accordingly, I will order the DOE to reimburse the Parent for the cost of the Student’s breakfasts and lunches as a reasonable accommodation that enables the Student to obtain the meals the Student is otherwise qualified to receive.

Transportation

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.”

Donald B. v. Board of Sch. Comm’rs, 117 F.3d 1371, 1374 (11th Cir. 1997) (citing 20 U.S.C. § 1401(a)(17); see also N.Y. Educ. Law §§ 4401(4), 4402(4)(d). 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 Findings of Fact and Decision provided for] students enrolled in public schools’” Donald B., 117 F.3d at 1375 (internal citations omitted).

In addition, New York 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 N.Y.C.R.R. § 200.1(ww).

The due process complaint seeks reimbursement for the money the Parent spent to provide the Student with MetroCards during the 2022-2023 school year. The Parent testified that at the beginning of the 2022-2023 school year, the DOE failed to provide the Student with a MetroCard for the first 45.5 days of school. (P-CC) The Parent provided receipts for her MetroCard purchases in support of her uncontroverted testimony. (P-Q) Given that the DOE was required to provide the Student with transportation and failed to do so, I will order the DOE to reimburse the Parent.

Attorneys’ Fees

The Parent also requested attorneys’ fees and expenses in the Parent’s due process complaint. (D-15) The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction. 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist.

Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); Application of a Child with a Disability, Appeal No. 06-

109 (Oct. 27, 2006). Only a court can determine if a party is entitled to attorneys’ fees and I would be exceeding the scope of my authority by determining that the Parent is the prevailing Findings of Fact and Decision party entitled to costs. Therefore, to the extent that the Parent is seeking reimbursement and/or payment of attorneys’ fees and costs, the Parent’s request is denied.

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

ORDER

Based above the above findings of fact, it is hereby:

1. ORDERED, that the DOE shall reimburse the Loan Society for the amount it paid towards the Student’s 2021-2022 tuition by paying $53,304.16 directly to the Loan

Society, within 30 days, it is further

2. ORDERED, that the DOE shall directly fund the remaining tuition owed by the Parent to the Private School for the 2021-2022 tuition by paying the outstanding balance of

$196.40 directly to the Private School, within 30 days, it is further;

3. ORDERED, that the DOE shall reimburse the Loan Society for the Student’s 2022-2023 tuition by paying $73,435.53 directly to the Loan Society, within 30 days, it is further

4. ORDERED, that the DOE shall fund 400 hours of compensatory tutoring services, to be provided by the Tutoring Center, at the cost of $150.00 per hour, with a two-year expiration date; it is further

5. ORDERED, that the DOE shall reimburse the Parent for the amount she spent on

MetroCards for the Student during the 2022-2023 school year, in the amount of $250.25, within 30 days; it is further Findings of Fact and Decision

6. ORDRED, that the DOE shall reimburse the Parent for the amount the Parent spent on the Student’s school meals during the 2021-2022 school year, in the amount of

$2,799.72, within 30 days; it is further

7. ORDERED, that the DOE shall reimburse the Parent for the amount the Parent spent on the Student’s school meals during the 2022-2023 school year, in the amount of

$1,945.90, within 30 days. SO ORDERED. DATED: September 1, 2023

Michele Host (signed electronically)

Impartial Hearing Officer

Michele Host 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 – ADMITTED EXHIBITS

DISTRICT’S EVIDENCE

Exhibit Title Date Pages 1 May 2021 Individualized Education Program (IEP) 5/11/2021 24 2 May 2021 Individualized Education Program (IEP) 5/11/2021 1

Attendance Page 3 2021 Prior Written Notice 6/20/2021 4 4 2021 School Location Letter 6/20/2021 2 5 March 2022 Individualized Education Program (IEP) 3/8/2022 30 6 March 2022 Individualized Education Program (IEP) 3/8/2022 2 Attendance Page 7 2022 Prior Written Notice 4/7/2022 4 8 2022 School Location Letter 4/7/2022 2 9 Home Instruction IEP Update 3/12/2019 8 10 Behavior Intervention Plan 12/10/2018 6 11 Psychiatric Evaluation 1/26/2022 ^[15] 12 Private School Transcript 2021-2022 1

and 2022-

2023 13 Private School Progress Report 2021-2022 1

and 2022-

2023 14 Private School Teacher Report February 3

2023

16 DOE SOL Motion to Dismiss 6/23/2023 48

PARENT’S EVIDENCE

Exhibit Title Date Pages A Individualized Education Program 3/25/2020 20 B Home Instruction IEP Update 5/6/2021 8 C 2021-2022 School Year Private School Brochure Undated 2

2021 D 2021-2022 School Year Private School Enrollment 9/24/2021 12

Contract E Loan Society Promissory Note Re: 21-22 Tuition Loan Undated 2

2021 F 10 Day Notice 9/27/2021 5 G Parent 1099 Tax Form Undated 1

2022 Findings of Fact and Decision

H School Location Letter 1/8/2022 1 I 2021-2022 School Year School Meals Receipts 2/7/2022; 4

2/28/2022;

3/4/2022;

3/7/2022 J 2021-2022 School Attendance 7/13/2022 2 K 2022-2023 School Year Private School Brochure Undated 2

2022 L 2022-2023 Fall Semester Private School Enrollment 7/18/2022 11

Contract M 2022-2023 Winter Semester Private School Enrollment 7/21/2022 3

Contract N 2022-2023 Spring Semester Private School Enrollment 7/18/2022 3

Contract O Loan Society Promissory Notes Re: 22-23 Tuition Loans 8/5/2022; 16

8/5/2022;

8/25/2022;

10/6/2022;

10/27;2022;

11/22/2022;

4/20/2023;

7/6/2023 P 10 Day Notice 8/22/2022 4 Q MetroCard Receipts 10/26/2022; 2

11/14/2022 R Private School Letter re: Student MetroCard 12/15/2022 1 S Neuropsychological Evaluation 12/23/2022 24 T 2021-2022 School Year Private School Tuition Affidavit 1/19/2023 1 U 2022-2023 School Year School Meals Receipts 4/27/2023; 5

5/2/2023;

5/4/2023;

5/26/2023;

6/13/2023 V Tutoring Company Coaching Letter 6/20/2023 1 W Parent’s Brief in Opposition to the DOE’s Motion to 7/7/2023 5

Dismiss X 2022-2023 School Attendance 7/25/2023 1 Y 2022-2023 School Year Private School Tuition Affidavit 7/25/2023 1 Z 2022-2023 School Year Private School Calendar Undated 2

2023 AA Pediatric Neuropsychologist Affidavit 7/20/2023 5 BB Head of School Affidavit 7/25/2023 6 CC Parent Affidavit 7/29/2023 6 Findings of Fact and Decision

IMPARTIAL HEARING OFFICER’S EVIDENCE

Exhibit Title Date Pages I Emails re: , DOE’s Motion to Dismiss 7/11/2023 2 II Emails re: 247924 – Contract Case Law 8/4/2023- 4

8/7/20234

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Footnotes

[1] The DOE’s exhibits are cited as “D” followed by a number, and the Parent’s exhibits are cited as “P” followed by a letter. IHO exhibits are cited as “IHO” followed by a roman numeral. The transcript is cited by “Tr.” followed by a page number.

[2] Again, there is a slight difference between the amount the Private School charged for the Student’s 2022-2023 tuition, which was $73,147.00, and the amount the Loan Society paid. (P-BB, ¶ 32; CC, ¶ 17; L; M; N) This difference appears to be attributable to a convenience fee. (P-L, p. 2)

[3] NYC Exec. Order No. 20 (June 24, 2022), www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504-delegation-Signed.pdf.

[4] Moreover, the Parent’s 2020-2021 claims would also be permitted under Section 504 of the Rehabilitation Act. See C.M., 744 Fed Appx. 7.

[15] Due Process Complaint 5/2/2023 11