New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 600454 - NYC: 248790

FINDINGS OF FACT AND DECISION

Case Number: 248790

Student’s Name: ^[1] REDACTED (“student”)

Date of Birth: REDACTED

School District: REDACTED

Hearing Requested by: REDACTED (“Parent”)

Request Date/Date Complaint Filed: 06/06/2023

Date(s) of Hearing: 10/04/2023

Actual Record Closed Date: 10/10/2023

Date of Decision: 10/19/2023

Date of Distribution if Different than Decision Date: N/A

Hearing Officer: Leah Martin, Esq.

Time Sensitive: No

NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/4/23

For the Student:

REDACTED (“Parent Counsel”), REDACTED (“Parent”), REDACTED (“Academic Director”), and REDACTED (“Therapist”)

For the Department of Education:

REDACTED (“DOE Representative”)

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on June 6, 2023. (Ex. A).^[2] In the DPC, Parent alleges that the Department of Education (“DOE”) failed to offer the student a free appropriate public education (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”) for the 2021-22, 2022-23, and 2023-24 school years. (Ex. A). Parent is seeking funding for tuition, transportation, and visitation costs for the student’s attendance at an out-of-state residential placement (“Private School”) for the 2023-24 extended school year (“ESY”). (Ex. A-4; O-2).

I was appointed on June 8, 2023. On July 11, the parties appeared virtually for a pre-hearing conference (“PHC”). At the PHC, the parties agreed to give the DOE more time to complete its investigation into the potential for settlement. (PHC Transcript). A status conference was held on August 1, during which dates were set for an additional status conference (for update on the DOE’s investigation), as well as the due process hearing (“DPH”). (SC Transcript 8.1.23). Issues for the hearing were clarified at that conference, during which Parent Counsel confirmed that Parent was not challenging the appropriateness of any of the operative IEPs but was only challenging the school location where the student was placed. (SC Transcript 8.1.23). During the August 17 status conference, the parties jointly requested and were granted an extension for witness availability and the DPH was rescheduled to September 14. (SC Transcript 8.17.23; Order of Extension). The DPH on September 14 had to be cancelled and rescheduled due to a family emergency of the undersigned. (DPH Rescheduling Emails).

A virtual DPH was held on October 4, 2023. It was a closed hearing. Parent was present and was represented by Parent Counsel. The DOE Representative was also present. At the DPH, the DOE offered no exhibits and presented no witnesses. (Tr. 32).^[3] Parent Counsel entered into evidence sixteen exhibits (A-P) without objection. (Tr. 33-36, 46, 61, 68). Parent Counsel presented testimony from three witnesses at the hearing, by affidavit and live cross-examination: Academic Director,^[4] Therapist,^[5] and Parent. Parent Counsel gave an opening statement^[6] (Tr.39-43) and both parties made closing arguments on the record (Tr. 75-79). The record was closed on October 10, upon receipt of the hearing transcript.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered, pursuant to the IDEA, 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, Educ. Law §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq.

BACKGROUND

The student is currently repeating the ninth grade and classified as a student with Emotional Disability. (Ex. A-3; C-1; M-6-7). The student has been medically diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), Intermittent Explosive Disorder, and Disruptive Mood Dysregulations Disorder. (Ex. A-2; C-3). For all school years at issue,^[7] it appears that the student’s IEPs recommended placement in an approved non-public residential school in a self-contained 12:1+2 special class with the related service of counseling (1x45x1 and 1x30 in a group of 5). (Ex. A-2; C-14-15). For the 2021-22 and 2022-23 school years, the student was placed in an approved residential non-public school upstate (the “NPS”) to implement his IEP. Parent alleges that during the 2022-23 school year^[8] at NPS, the student made no progress and failed to earn any credits, requiring that the student repeat the ninth grade.^[9] (Ex. A-2-3; Tr. 39-40). Furthermore, Parent alleges that the committee on special education (“CSE”) met on May 26th, 2023^[10] and agreed to change the student’s residential placement for the 2023-24 ESY, but that no program placement was ultimately offered. (Ex. A-3; C; Tr. 41). As a result, Parent unilaterally placed the student at an out-of-state residential private school (“Private School”), which she claims is appropriate for the student. (Ex. A-3; Tr. 41-42).

ISSUES

The student’s eligibility for special education, disability classification, and need for an ESY residential^[11] program are not in dispute in this case. (Ex. A-2). Nor is the substantive appropriateness of any of the operative IEPs. (See Ex. A; SC Transcript 8.1.23). Parent alleges that the NPS in which the student was placed during the 2021-22^[12] and 2022-23 school years was inappropriate in that it was not structured or supervised enough to keep the student from eloping or to curb his disruptive behaviors.^[13] (Ex. A-2-3; SC Transcript 8.1.23; Tr. 39-40). According to Parent, the inappropriateness of the NPS resulted in a denial of a FAPE for the 2021-22 and 2022-23 school years. (Ex. A; Tr. 39-40).

Additionally, Parent asserts that the lack of a placement offer for the 2023-24 school year resulted in a denial of a FAPE. (Ex. A; Tr. 39-40). Parent is requesting the tuition and costs at Private School for the 2023-24 school year on two alternative grounds: either as compensatory education to account for the FAPE denials during the 2021-22 and 2022-23 school years and/or under the Burlington/Carter analysis for the 2023-24 school year. (Ex. A-4).

The DOE has not conceded a denial of a FAPE for any of the school years at issue, but did not put on a case, nor did they made any arguments to defend the provision of a FAPE at hearing. (Tr. 38, 75). The DOE argued at hearing that Parent had failed to prove that the Private School was an appropriate unilateral placement because there was no evidence in the record of academic improvement or “how his services are going.” (Tr. 75-76). DOE Representative additionally argued that Parent was not entitled to an award for visitation or travel expenses because Parent had not produced any evidence of such costs and there was nothing in the record to support such an award. (Tr. 76).

FINDINGS OF FACT^[14]

The student has a history of serious behavioral problems that have interfered with his ability to function in the classroom, both academically and socially. (Ex. A-2). He struggles with aggression, depression, inability to follow rules or accept limits, and the inclination to challenge authority. (Ex. B-2). Parent was “initially pleased with the program” at the NPS. (Ex. A-2). The student began to have issues there in the fall of 2022. (A-2).^[15] In the last six months of the 2022-23 school year, the student’s performance at the NPS deteriorated greatly. (Ex. A-2). According to an updated social history from May 25, 2023 (“May Report”), the student struggled with elopement, had poor attendance (less than 20%) in his classes, and often left campus without permission. (Ex. A-2-3; B-2). The student continually REDACTED to campus. (Ex. A-2; B-2). He also made threats against campus and would threaten and intimidate other students and staff. (Ex. A-2-3; B-2). Many of these behaviors led to police intervention. (Ex. A-2; B-2). According to the May Report, “when [the student] attends class and participates, he is capable of learning new material, as his reading, writing and math skills are within the average range.” (Ex. A-3; B-2). However, due to his poor attendance and failure to complete assignments, the student was not expected to earn credit in any of the four academic courses and was expected to repeat the ninth grade. (Ex. A-3; B-2).

In the May Report, the NPS requested that the student be placed in another residential setting that could better meet his needs. (Ex. B-2). According to Parent, the CSE reviewed the May Report at the May 26, 2023, IEP review meeting and decided to assign the student to a different residential placement for the 2023-24 school year.^[16] (Ex. A-3). It is worth noting that despite the NPS’ prediction in May that the student would not pass his classes or receive credit, it appears from the transcript in evidence that he successfully passed all his classes and received credit for them, with the exception of woodshop. (Ex. K-3-4; L-1). Given that the student did receive credit for the vast majority of his ninth-grade year at the NPS,^[17] it is quite unclear from the record why he would need to repeat the ninth grade, or if, indeed, he needed to repeat it at all.

According to the 5/26/23 IEP (with which Parent has agreed), the student “requires 1:1 support for partial completion of daily tasks and assignments” and “has difficulty maintaining attention and concentration in all academic areas.” (Ex. C-1). He reads at grade level, “is able to write very well,” and is noted to be performing on grade level in reading and math. (Ex. C-1-2, 20). However, the IEP notes concern that the student’s poor attendance impacts his ability to “maintain grade-level fluency.” (Ex. C-2). While the student is noted to “easily grasp new material,” his lack of motivation and participation and threatening behavior interfere with his success. (Ex. C-2). Based on a functional behavior analysis from April 28, 2023, the student’s targeted behaviors are “Aggression – Verbal Aggression” and “Aggression – Intentional use of physical force.” (Ex. C-3). The student’s management needs include: “a calm and structured environment with clear rules, expectations and consequences,” “1:1 support and space and time away between tasks,” refocusing and redirection, preferential seating next to an adult, and breaks as needed. (Ex. C-4). Although the IEP indicates that a behavior plan is necessary, it also states that one would not be implemented because the student’s school provides a “school wide behavior support system which is incorporated within the program.” (Ex. C-4). The 5/26/23 IEP contained annual goals pertaining to following a schedule, completing assignments, the writing process, writing a persuasive argument, solving number problems, plotting values on an axis, vocational planning, following program directives and class rules, positive communication, and identifying destructive urges. (Ex. C-6-13). The 5/26/23 IEP noted that the student “feels connected to his home … [and] cares deeply about his younger siblings and looks forward to seeing [them] on the weekends.” (Ex. C-3).

Private Schools is a “REDACTED.” (Ex. D-1; M-3-4). Generally, upon intake Private School interviews students and their families and develops a personalized clinical treatment plan (“Master Treatment Plan”). (Ex. D-1). The program generally involves a combination of individual and family therapy (provided remotely). (Ex. D-1).^[18] All the Private School clinicians are licensed by the state of Utah. (Ex. D-3; M-4). Private School is accredited by the state of REDACTED.^[19] (Ex. M-3; Tr. 53-54).

According to the DPC, in their “search for an appropriate residential program for the student, the parent came across [Private School] located in REDACTED. (Ex. A-3). There is no indication in the record that Parent attempted to and/or was unable to find a suitable placement closer to home. According to the student’s Master Treatment Plan, the student’s placement at Private School was precipitated by REDACTED. (Ex. J-1). Parent told Private School that she was afraid of the student and had to lie to him to get him to go to the Private School. (Ex. J-1). When the student “realized he was being admitted he became violent, attacking the Program Director physically requiring a restraint” for safety. (Ex. J-1).

On June 7, 2023, Parent signed an enrollment contract with Private School for the 2023-24 ESY. (Ex. F). The contract reflects the student’s admission as of July 5, 2023, but indicates that if the student “is admitted into the Program on any other day other than the 1st day of the month, the Admission Period will begin on a prorated daily rate until the 1st day of the next month.” (Ex. F-1). The contractual treatment and tuition costs are $9,800 per month ($7,800 for treatment and $2,000 for academics), but for the first monthly payment, the cost is “prorated based on a 30-day month, regardless of the actual days within the calendar month of admission.” (Ex. F-2). According to the contract, the monthly program cost is due on the first of each month and if payment is not received by the twentieth of each month, absent a prior written arrangement, the student will be removed from the program. (Ex. F-3-4).^[20] The contract requires that the student have medical insurance during his attendance. (Ex. F-3-4). Parent has medical insurance for the student and has submitted the therapy portion of the Private School costs to insurance for potential payment but has not received word yet as to what portion (if any) they are willing to pay. (Tr. 70). The contract restricts communication between the student and his family for at least the first three months of the program, and thereafter communication and visits may only occur with the approval of the treatment team. (Ex. F-5).^[21] According to a tuition affidavit in evidence, Private School is billing Parent $117,600 for the 2023-24 ESY ($9,800 times 12 full months). (Ex. I-1; see also Ex. O-2). However, that cost is not consistent with the terms of the contract, as the month of July should have been prorated.^[22] (Ex. F-1, 2). Parent has made no payments to Private School. (Ex. I-1; Tr. 70-71). Parent testified that she is unable to pay the Private School costs. (Ex. O-2).^[23] However, she testified that the student’s father is a REDACTED, and she could ask him to pay the costs, if necessary. (Tr. 73). There is no information in the record regarding the father’s income. The student’s first day of attendance at Private School was July 27, 2023. (Ex. H-1; M-6).

The student’s class schedule^[24] at the Private School includes physical education, “teen living,”^[25] English,^[26] world geography,^[27] geometry,^[28] and Earth science.^[29] (Ex. G-1).^[30] Classes follow Common Core standards. (Ex. M-5). The student’s classes have up to eight students and one teacher.^[31] (Ex. M-5; O-2). The student receives individual therapy^[32] once every two weeks, family therapy once every two weeks,^[33] and group therapy multiple^[34] times weekly. (Ex. J-8; M-3-4; N-1-2; Tr. 49, 65). The student’s Master Treatment Plan includes individualized goals related to curbing destructive behavior, emotional regulation, thought management, issues underlying depression and substance abuse, healthy living, family boundaries and dynamics, sustained focus and attention, conflict resolution and anger control, self-esteem, social interaction, healthy sexual activity, accepting authority, and renewing interest in academics, social involvement, healthy eating and sleeping patterns. (Ex. J-3-7; N-2). A graduation plan was also created, which contains similar goals that the student needs to accomplish before being discharged from the program. (Ex. K-1). His anticipated discharge from the program is August of 2024. (Ex. K-1). Graduation from the program requires two successful home visits (Ex. K-1), but there is no evidence in the record as to when or if those visits will occur and/or whether any are planned during the 2023-24 school year.

Although the DPC and Parent and Academic Director’s affidavits claim that the Private School is capable of implementing the 5/26/23 IEP (Ex. A-3; M-7; O-1), that claim is not supported by the record. While Private School exceeded the group counseling recommendation of the IEP, it did not provide individual therapy every week nor did it provide the 12:1+2 class, as mandated. According to Therapist, Private School is able to implement the recommended “therapeutic residential program with an intensive behavior modification component,” but he was silent as to their ability to implement the student’s other IEP mandates. (Ex. N-2). Although Academic Director testified that Private School has a system in place to monitor all student behavior and keep, track, and analyze behavioral data (Ex. M-5), there is no evidence in the record of any behavioral data on this student. Similarly, Academic Director testified that frequent progress reports are prepared (Ex. M-5), but none of those reports appear in the record.

Although there is no evidence in the record of the student’s academic performance at Private School, it appears that he has made some improvement, at least in terms of attendance and participation. Since his transfer to Private School, the student has had perfect class attendance and is listening in class and completing assignments. (Ex. H-1; M-7; Tr. 52, 58, 66). Academic Director attributed this increased attendance to the fact that the Private School is “very regulated,” indicating further that the student does not have the option not to attend class. (Tr. 58). However, apart from his vastly improved attendance, there is no other evidence in the record of the student’s progress towards either his IEP goals or the goals of his Master Treatment Plan. Therapist testified that the student is steadily earning privileges but did not describe what achievements were necessary to that process. (Ex. N-2). According to Therapist, the student has written his “confession letter” to his parents. (Ex. N-3). However, he gave no description of how that letter relates to accomplishing the student’s goals and the student’s attempt to discuss the letter in group therapy was unsuccessful due to his glorification of illicit activities. (Ex. N-3). Therapist testified that the student has “read and processed two packets” in individual therapy but did not give more information about how those packets contributed to meeting the student’s goals. (Ex. N-3).

In the opinion of Academic Director, Private School is an appropriate placement for the student. (Ex. M-2, 7-8). Therapist agrees. (Ex. N-3). Parent similarly testified that the Private School can meet the student’s needs. (Ex. O-2).

There is no evidence in the record regarding any transportation costs to transport the student to or from Private School. Nor is there evidence of any past or planned family or home visits. (See Tr. 56-57).

LEGAL FRAMEWORK

IDEA

The IDEA provides that children with disabilities are entitled to a FAPE. 20 U.S.C. §1400(d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP. 34 C.F.R. §300.13. A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017). A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP. Id. The IDEA requires school districts to provide appropriate education to students with disabilities, "not one that provides everything that might be thought desirable by loving parents." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998) quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). The IEP must be reviewed at least annually [34 C.F.R. §300.324(b)(1)(i)], and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year [8 N.Y.C.R.R. §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010)].

For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2). Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011). The failure to offer a timely school placement to implement the student’s IEP 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. 5/10/22); S.Y. v. N.Y.C. Dep’t of Educ., 210 F. Supp. 3d 556, 574-75 (S.D.N.Y. 2016); FB v. N.Y. City Dep’t of Educ., 132 F. Supp. 3d 522, 541-43 (S.D.N.Y. 2015); C.U. v. N.Y.C. Dep’t of Educ., 23 F. Supp. 3d 210, 227 (S.D.N.Y. 2014).

Generally, the sufficiency of the program offered by the district must be determined on the basis of the IEP itself. R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 186-88 (2d Cir. 2012). A parent may challenge an assigned school based on its lack of services required by the IEP. By contrast, a parent cannot challenge an assigned school that has the capacity to implement a student’s IEP by making speculative claims about the school’s ability to implement the IEP. See G.B. v. N.Y.C. Dep’t of Educ., 145 F. Supp. 3d 230, 254 (S.D.N.Y. 2015) citing M.O. v. N.Y.C. Dep’t of Educ., 793 F.3d 236, 244 (2d Cir. 2015); see also M.E. v. N.Y.C. Dep’t of Educ., 2018 WL 582601, at *12 (S.D.N.Y. 1/26/18); R.E., 694 F.3d at 195; E.H. v. N.Y.C. Dep't of Educ., 611 Fed. App'x 728, 731 (2d Cir. 3/8/15); R.B. v. N.Y.C. Dep't of Educ., 603 Fed. App'x 36, 40 (2d Cir. 3/19/15)("declining to entertain the parents' speculation that the 'bricks-and-mortar' institution to which their son was assigned would have been unable to implement his IEP") quoting T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 419 (2d Cir. 2009); R.B. v. N.Y.C. Dep't of Educ., 589 Fed. App'x 572, 576 (2d Cir. 10/29/14); Z.C. v. N.Y.C. Dep’t of Educ., 222 F. Supp. 3d 326, 338 (S.D.N.Y. 2016); L.B. v. N.Y.C. Dep’t of Educ., 2016 WL 5404654, at *25 (S.D.N.Y. 9/27/16); G.S. v. N.Y.C. Dep’t of Educ., 2016 WL 5107039, at *15 (S.D.N.Y. 9/19/16); M.T. v. N.Y.C. Dep’t of Educ., 2016 WL 1267794, at *14 (S.D.N.Y. 3/29/16).

Such challenges must be based on something more than the parent’s speculative “personal belief” that the assigned public-school site was not appropriate. K.F. v. N.Y.C. Dep’t of Educ., 2016 WL 3981370, at *13 (S.D.N.Y. 3/31/16); Q.W.H. v. N.Y.C. Dep’t of Educ., 2016 WL 916422, at *9 (S.D.N.Y. 3/7/16); N.K. v. N.Y.C. Dep’t of Educ., 2016 WL 590234, at *7 (S.D.N.Y. 2/11/16). When the parent’s allegations about the proposed placement school are speculative, the school district does not need to present substantive evidence about the school’s ability to implement the IEP. See M.O., 793 F.3d at 236; J.S. v. N.Y.C. Dep't of Educ., 2017 WL 744590, at *4 (S.D.N.Y. 2/24/17); N.K. v. N.Y.C. Dep’t of Educ., 2016 WL 590234, at *6 (S.D.N.Y. 2/11/16)(noting that "[t]o be a cognizable claim, i.e., one that triggers the school district's burden of proof, the 'problem' with the placement cannot be a disguised attack on the IEP"); M.B. v N.Y.C. Dep't of Educ., 2017 WL 384352, at *6 (S.D.N.Y. 1/25/17)(noting that the parent in that matter did "not allege that the placement school did not have the ability to satisfy the IEP" but instead sought "to require the District to prove in advance that it w[ould] properly implement the IEP," which "M.O. does not require"); Application of a Student with a Disability, Appeal No. 23-005 (“while the IHO’s statements could appear to be burden-shifting, he is correct that parents first have the obligation to assert nonspeculative challenges to the school’s ability to implement the IEP before the DOE has the burden of proving that it can implement the IEP”).

A school district must ensure that a student is placed in the least restrictive environment (“LRE”) that can meet the student’s needs. 34 C.F.R §300.114(a)(2); T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 161-67 (2d Cir. 2014); Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 119-20 (2d Cir. 2008). In determining the LRE, “[c]onsideration is also given to any potential harmful effect on students or on the quality of services that they need.” Application of a Student with a Disability, Appeal No. 23-027, citing 34 C.F.R. §300.116(d); 8 N.Y.C.R.R. §200.4(d)(4)(ii)(c). A Parent’s unilateral private placement is not held to the same LRE requirement as the district would be. D.N. v. Bd. of Educ., 2015 U.S. Dist. LEXIS 138272, *34-35 (E.D.N.Y. 9/28/15) citing M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000); Frank G., 459 F.3d at 364; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 (2d Cir. 2014). However, it is a valid factor for consideration. See C.L., 744 F.3d at 837; M.S., 231 F.3d at 105.

Burdens

In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking tuition reimbursement for a unilateral parental placement has the burdens of persuasion and production on the appropriateness of such placement. NYS Educ. Law §4404(1)(c).

Relief

A board of education may be required to pay for educational services obtained unilaterally by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). These three conditions (“Prongs”) constitute the Burlington/Carter test.

A unilateral placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)(“[Parents] need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”). Educational progress can be a factor weighing in favor of the appropriateness of a unilateral placement. Frank G., 459 F.3d at 365. Improved behavior can also be a factor. Id., citing Knable v. Bexley City Sch. Dist., 238 F.3d 755, 768 (6th Cir. 2001). To qualify for reimbursement under the IDEA, parents need not show that the unilateral placement is perfect or that it meets all state educational standards. Id. at 364-65; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000). Distance from a student’s home is a factor in determining an appropriate placement. See 34 C.F.R. §300.116(b)(3).

The standard for analyzing the appropriateness of a unilateral placement is the “totality of the circumstances.” Bd. of Educ. of Wappingers Cent. School Dist. v D.M., 831 Fed. App'x 29, 31 (2d Cir. 2020). In reviewing the appropriateness of a unilateral placement, courts prefer objective evidence over anecdotal evidence. Frank G., 459 F.3d at 365, citing Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998) and Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121 (2d Cir. 1997); see also L.K., 932 F. Supp. 2d at 491; L.Q. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 490 (S.D.N.Y. 2013)(rejecting parents' argument that counseling services met student's social/emotional needs where "[t]here was no evidence . . . presented to establish [the counselor's] qualifications, the focus of her therapy, or the type of services provided" and, further, where "[the counselor] did not testify at the hearing and no records were introduced as to the nature of her services or how those services related to [the student's] unique needs"); R.S., 2011 WL 1198458, at *5 (rejecting the parents' argument that speech-language therapy services met student's needs where parents "did not offer any evidence as to the qualifications of the provider of the therapy, the focus of the therapy, or when and how much therapy was provided"), aff'd sub nom, 471 Fed. App'x 77 (2d Cir. 6/18/12); R.H. v. Bd. of Educ. Saugerties C.

Sch. Dist., 2018 WL 2304740, at *7 (N.D.N.Y. 5/21/18), aff'd, 776 Fed. Appx. 719 (2d Cir. 2019)(finding insufficient evidence of a student's progress at a unilateral placement where the hearing record did not include objective evidence, such as report cards, progress notes, work samples, standardized assessments, or progress towards written goals); Application of a Student with a Disability, Appeal Nos. 23-085 (holding that despite the parent’s attempt to replicate a program similar to the student’s last-agreed upon summer IEP, parent failed to meet their prong 2 burden where they failed to come forward with evidence that describes the services and delivery thereof or how they met the student’s needs and the record does not show that the student made progress); 23-066 (holding that where the hearing record was sparse as to what services the student received or how they addressed the student’s needs - there was testimony that individual goals were developed and reviewed quarterly and that services were specialized but none of the goals or assessment reports were in evidence – the IHO correctly found that Parent did not meet their burden to establish the appropriateness of unilateral equitable services); 23-162 (despite parent’s unilateral services conforming with the last IESP, parent failed to meet their prong 2 burden at hearing where the hearing record contained no specific information about how the services provided were specially designed to meet the student’s needs, what needs the sessions addressed and whether the services were appropriate and although there was testimony that goals and progress reports were developed, they were not in evidence.).

Under Burlington/Carter, if the parents are financially obligated to pay for the contracted services and have met their prong two burden, the contract must be fully reimbursed or directly funded by the district unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced. See Carter, 510 U.S. at 16 (“Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable”); 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.”). Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47 (2009). An IHO generally has broad authority to fashion appropriate equitable relief. See Mr. and Mrs. A v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 422-23, 427-30 (S.D.N.Y. 2011); Forest Grove, 557 U.S. at 239.

In making that equitable determination, a hearing officer may consider many factors, including whether a parent’s unilateral withdrawal of the child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed themself of need-based scholarships or other financial aid from the private school, and 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. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014). Moreover, unreasonable actions on the part of the student’s parents may make it appropriate to reduce an equitable award. See Application of a Student with a Disability, Appeal No. 23-093. While an IHO may consider a parent’s financial abilities when deciding whether to order reimbursement or direct payment, direct payment need not be conditioned on the parent’s inability to pay and hearing officers have broad discretion to grant appropriate relief, including direct payment. Cohen v. NYC Dep’t of Educ., 2023 U.S. Dist. LEXIS 171815 (S.D.N.Y. 9/26/23); Ferreira and Rojas v. N.Y.C. Dept’ of Educ., 123 LRP 9785 (S.D.N.Y. 3/14/23) citing A.R. ex rel. F.P. v. N.Y.C. Dep’t of Educ., 2013 WL 5312537 (S.D.N.Y. 9/23/13) and Mr. & Mrs. A. ex rel. D.A. v. N.Y.C. Dep’t of Educ., 769 F. Supp. 2d at 428; see also Erde ex rel. J.E. v. Banks, 2022 U.S. Dist. LEXIS 232797 (S.D.N.Y. 12/28/22).

Transportation and Visitation Costs

State regulations authorize expenditures related to suitable transportation of a student "from the student's home to the school at the commencement of the school year, from the school to the student's home at the conclusion of the school year, and no more than three additional trips to and from school for students enrolled in a 10-month program, or four additional trips to and from school for students enrolled in receiving a 12-month special service and/or program, except as additional trips may need to be provided for the periods during which residential care is not provided to the students attending such school." 8 N.Y.C.R.R. §200.12(a). No provision is included for expenses for family visitation at the school. See id. However, the Office of Special Education Programs of the United States Department of Education (“OSEP”) guidance indicates that parental trips to and from school which contribute to the achievement of the student's IEP annual goals are included within the federal definition of the term "related services" to be provided at no cost to the parents as part of the student's FAPE. Letter to Anonymous, 213 IDELR 164 (OSEP 1988); see also Luke P. v. Thompson R2-J Sch., 46 IDELR 70 (N.D. Ill. 11/25/03)(expenses must relate to genuine educational concerns in order to justify reimbursement); Union Sch. Dist. v. Smith, 15 F.3d 1519, 1528 (9th Cir. 1994)("the language and the spirit of the IDEA encompass reimbursement for reasonable transportation and lodging expenses . . . as related services"); Perkiomen Valley Sch. Dist. v. R.B., 533 F. Supp. 3d 233 (E.D. Pa. 2021)(holding that for a student who could not travel independently, parent’s costs of mileage, tolls, and hotel incurred to drop off the student at the start of school and pick her up at the end of school were justified as a related service, but the cost of other visits during the school year were not justified as a public expense). OSEP has opined that the reimbursement of a child's parents for other transportation expenditures not involving transporting the child to and from school, such as to attend conferences at the school, must be determined on a case-by-case basis. See Letter to Anonymous, 213 IDELR 164 (OSEP 1988); Letter to Dorman, 211 IDELR 70 (OSEP 1978).

In Application of a Child with a Disability, Appeal No. 98-043, a parent was found to be entitled to be reimbursed for airfare, a hotel room, food, and a rental car for certain trips to visit his son at a residential school because the student’s IEP included goals related to family relationships and his IEP included five yearly family trips. However, costs of additional hotel rooms and airfare for siblings were denied as unreasonable. Id. In Application of a Child with a Disability, Appeal No. 00-010, a parent’s visit during “parent and family weekend” was not found to contribute to the achievement of the student’s IEP goals because he had no goals relating to family relationships and there was no evidence in the record that staff meetings, while helpful to the parents, contributed to the IEP goals. In Application of a Child with a Disability, Appeal No. 03-021, the parent was reimbursed for reasonable expenditures to participate in school-mandated “family resolution” sessions. In Board of Education of the Williamsville Central Sch. Dist., Appeal No. 01-012, there was no evidence in the record regarding any specific travel expenditures, so the parents were ordered to first submit their request for payment to the district, and then if there was any dispute about payment, the due process procedures were to be used. See also Board of Educ. of the Webster Cent. Sch. Dist., Appeal No. 17-092 (remanding for determination of whether “family day” trips were necessary to achieve the student’s IEP goals and, if so, whether any costs thereof, which were not in the original record, were reasonable). In Board of Educ. of the Mahopac Cent. Sch. Dist., Appeal No. 13-087, parent was reimbursed for only half of the requested travel expenditures because they made no attempt to find a residential placement closer to home.

ANALYSIS AND CONCLUSIONS OF LAW

2021-22 School Year

I do not find a denial of a FAPE for the 2021-22 school year. Here, the substantive appropriateness of the student's IEP was not challenged and there were no non-speculative allegations about the NPS’ ability to implement the IEP. In fact, Parent has not alleged that the NPS did not implement the student’s IEP, nor have they made allegations regarding any specific inappropriateness of the NPS during the 2021-22 school year. To the contrary, according to the DPC, Parent was “initially pleased with the program” (Ex. A-2), and the student did not begin to have issues there until the fall of 2022 (Tr. 39-40). In the absence of any such allegations, let alone any non-speculative ones, the district had no burden to prove the NPS’ ability to implement the IEP. Since Parent has agreed with the appropriateness of the IEP, I find that a FAPE was offered for the 2021-22 school year. Accordingly, there is no denial of a FAPE for this school year that would be appropriately remedied with a compensatory award.

2022-23 School Year

I do not find a denial of a FAPE for the 2022-23 school year. Here, the substantive appropriateness of the student's IEP was not challenged and there were no non-speculative allegations about the NPS’ ability to implement the IEP. In fact, Parent has not alleged that the NPS did not implement the student’s IEP. Although the student began to have issues at the NPS in the fall of 2022, which worsened over the school year, there is no allegation that this was due to a failure to implement the IEP, with which Parent has agreed. Here, Parent’s allegations regarding a need for more supervision and structure are not related to the NPS’ ability to implement the IEP, but rather seem to be a disguised attack on the IEP, which is not properly at issue in this hearing. In the absence of any non-speculative allegations regarding the NPS’ inability to implement the agreed-upon IEP, the district had no burden to prove the NPS’ ability to implement the IEP. Since Parent has agreed with the appropriateness of the IEP, I find that a FAPE was offered for the 2022-23 school year. Accordingly, there is no denial of a FAPE for this school year that would be appropriately remedied with a compensatory award.

2023-24 School Year

Prong 1

As to Prong I of the Burlington/Carter standard, I find that the DOE failed to meet its burden at the hearing. The allegation here is that the DOE made no school location/placement offer to implement the student’s IEP for the 2023-24 school year, which the DOE has not disputed. They presented no testimonial or documentary evidence to disprove Parent’s allegation. Nor did they make any legal arguments at hearing to defend their failure to offer a timely school placement. The evidence shows that the NPS where the student was placed last year asked that he be placed elsewhere for the 2023-24 school year, and the DOE failed to find an alternative placement. For these reasons, I find that the DOE has not met its burden to show that it offered the student a FAPE for the 2023-24 school year.

Prong 2

I find that Parents have met their burden in proving that the Private School offers an educational program which meets the student’s needs under Prong 2. Here, the totality of the evidence establishes that the student’s individual special education needs are 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. However, I do have significant concerns about the program, which will be discussed in the equities section below.

The program provided by the Private School is mostly consistent with the IEP recommendations – it provides a therapeutic residential program with an intensive behavior modification component and small classes. I am concerned that an 8:1 class is double the student-teacher ratio than the recommended 12:1+2 class. However, given that the student’s main academic issues were with behavior, attendance, and participation, and those issues have been addressed by other aspects of the Private School program, I do not find that this factor alone precludes a finding that the unilateral placement is appropriate.

Although it would be better to have more information in the record about specific accommodations and methods used to address the student’s unique needs, I find that the Private School program was individualized in the sense that a Master Treatment Plan and individual goals were developed for the student. It would also be better to have more objective evidence of progress in the record, such as progress reports, grades, etc. However, based on all evidence in the record, the student has the capability to grasp grade-level content and learn if he is motivated to attend class and complete assignments more often. The objective evidence in the record here shows that the student is now attending 100% of his classes, paying attention, and completing assignments, which can only reasonably be described as progress.

Although I do not find the Private School to be the least restrictive setting in terms of distance from his home, Parents are not subject to the same LRE requirements as the DOE under Prong 2. While it is a factor that weighs against the appropriateness of the unilateral placement here, on balance, it does not tip the scales against the Parent.

Here, the DOE has not argued that the student’s teachers and clinicians at Private School are not appropriately qualified, and I find that they are. Although it appears that some of the teachers may lack certifications, they all have significant teaching experience and are not required to meet all state educational standards. For all these reasons, I find that the Parent has met their burden of showing the appropriateness of the Private School program.

Prong 3

Although Parent has met their Prong 2 burden, I find that the actual costs of the program are less than what is claimed, and some (or all) of the therapy portion may be eligible for payment by the student’s medical insurance provider. Furthermore, I find that there are significant equitable considerations that weigh against Parent. Accordingly, I find it appropriate to reduce the award for Private School tuition and costs.

I find that the Parent was not credible here. There are several specific instances (noted in the facts section above) where I found her assertions to be contrary to other evidence. Moreover, she admitted to lying to the student to get him to go to the Private School, which further diminished her credibility.

Here, there are two reasons why the cost of the program should not be as high as claimed. First, the student did not begin the program until July 27. Accordingly, based on the terms of the contract, the first month’s costs should have been prorated based on a 30-day month. Thus, the $9,800 charged for the first month should have only been 5/30 of that, or $1,633. That would make the total yearly cost $109,433. It is unclear from the record whether the student’s anticipated admission date was delayed from July 5 for some reason, or whether the school differentiates between admission date (being the date the student was formally accepted into the program) and start date. Regardless, I do not find it appropriate to charge the student for his attendance at the school prior to him actually attending the school. So, the charges for the month of July must be prorated.

Second, the student has insurance which may pay a portion of the therapy costs of the program, which constitute a large percentage of the total costs. Thus, to make sure that the DOE is not paying for services that should more appropriately be borne by another entity, all therapy costs should first be submitted to insurance and the DOE should only be required to pay the balance upon receipt of appropriate documentation that any remaining costs are not covered by the student’s insurance plan.

Finally, I find that the Parent’s conduct in placing the student at the Private School was not reasonable and makes it appropriate to further reduce the final award by one third, for a maximum of $72,955.33 (2/3 of $109,433). I have grave concerns about the Parent’s actions here. The DOE bears responsibility for failing to offer a school location here. However, there is no evidence in the record that Parent attempted to find a suitable alternative closer to home (and distance from home and any negative affects to the student are relevant factors when choosing a placement). When viewed in light of the information in the record regarding the Parent’s decision to place the student at Private School due to him hitting her in the face and her fear of the student, her motivations for seeking a placement so far from home are called into question. I am concerned that Parent’s choice to remove the student to a state across the country has more to do with her own motivations (and fear) rather than the needs of the student. In fact, her decision to do so and the way in which she did it appear to have done significant harm to the student.

First, it further removed him from the support of his father and siblings,^[35] and the close connection he previously felt towards home. Furthermore, Parent’s decision to deceive the student about why they were going to Utah, and essentially trick him into going, was likely to (and appears to) have caused the student immediate and lasting damage. In the immediate sense, the student became aggressive when he realized that he was being “committed” and had to be physically restrained, which is never a desired situation for a child. In the lasting sense, the student now appears to have issues surrounding his family relations (as reflected in the Master Treatment Plan and accompanying goals) that were not present at the time of his 5/26/23 IEP (there are no goals discussed in that IEP that have to do with struggles in the family domain, and he was previously described as having a strong connection to home). I cannot in good conscience endorse this behavior. For all these reasons, I find that the equities do not support full payment for the student’s attendance at the Private School during the 2023-24 school year, consistent with the above.

Other Relief

As for transportation and visitation costs, there was no evidence in the record regarding any specific travel expenditures, so there is no basis for any award. Furthermore, there is no evidence that payment for any family visits would be justified because no visits are required by the school and there is no evidence that visits would be necessary to achieve the student’s IEP goals. Finally, without proof of expenditures in the record, there is no way to determine whether such costs are reasonable. Since Parent had access to evidence for any costs incurred prior to the date of the DPH (October 4, 2023) and chose not to present it at hearing, any claim to reimburse those costs is hereby dismissed with prejudice. For any transportation costs incurred between October 5, 2023, and the end of the 2023-24 school year, those claims are dismissed without prejudice. Parent must first submit their request for travel and visitation costs for payment to the district, and then if there is any dispute about payment, the due process procedures may be used.

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 of the Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDER

Based upon the above Findings of Fact and Conclusions of Law:

1. IT IS HEREBY ORDERED that the New York City Department of Education shall, upon receipt of proof of submission of therapy costs to the student’s insurance company and upon completion of the insurance claim process (either paying the claims in full or in part or finding that they are not covered by the plan), issue direct payment to Private School for the student’s attendance there from July 27, 2023 to June 30, 2024 in the amount of two thirds (2/3) of the total amount not paid by insurance (up to a maximum payment of $72,955.33); it is further

2. ORDERED that the New York City Department of Education shall, prior to the start of the 2024-25 extended school year, convene a review meeting to consider all current evaluative information, including the student’s progress at the Private School. The CSE shall then develop a new IEP with an appropriate program and services in light of the findings therein and offer an appropriate school location to implement the IEP prior to the start of the ESY; and it is further

3. ORDERED that Parent’s claim to fund transportation/visitation costs incurred between July 1, 2023, and October 4, 2023, are dismissed with prejudice. Any claim for funding for transportation/visitation costs incurred between October 5, 2023, and the end of the 2023-24 school year is dismissed without prejudice.

SO ORDERED.

DATED: October 19, 2023

Leah Martin, Esq. (Signed Electronically)_

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 A – DOCUMENTATION ENTERED INTO THE RECORD

DOE’S EXHIBITS

- - - -

PARENT EXHIBITS

A. DPC 6/6/23 (5 pages)

B. NPS May Report 5/25/23 (3 pages)

C. IEP 5/26/23 (22 pages)

D. Private School Program Description Undated (3 pages)

E. Private School Certificate of Accreditation Undated (1 page)

F. Enrollment Contract 7/3/23 (9 pages)

G. Private School Class Schedule 2023-24 (1 page)

H. Private School Attendance Report 8/4/23 (1 page)

I. Private School Tuition Affidavit 8/3/23 (1 page)

J. Private School Master Treatment Plan 7/12/23 (9 pages)

K. Private School Graduation Plan 2023-24 (5 pages)

L. Academic Transcript 2022-23 (2 pages)

M. Affidavit of Academic Director (with CV) 9/7/23 (11 pages)

N. Affidavit of Therapist (with CV) 9/7/23 (8 pages)

O. Affidavit of Parent 9/8/23 (2 pages)

P. Parent’s Income Tax Return 2022 9/8/23 (2 pages)

IHO’S EXHIBITS

- - - -

Footnotes

[1] Personally identifiable information is attached as Appendix B, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: Ex. followed by lettered designations for Parent Exhibits, numbered designations for DOE’s Exhibits, and lower-case roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parent Exhibit A, page 1, will be referred to as (Ex. A-1).

[3] The hearing transcript will be cited as (Tr.) followed by the page number(s) within the transcript.

[4] He has a doctorate in Education Leadership and Higher Education. (Ex. M-2, 11). He is a licensed professional educator in the state of Utah. (Ex. M-11).

[5] He is a REDACTED state licensed Marriage and Family Therapist with a master’s degree in that field. (Ex. N-1, 4).

[6] DOE Representative waived her opening. (Tr. 38).

[7] The 2021-22 and 2022-23 IEPs are not in evidence.

[8] Parent has made no allegations regarding any specific inappropriateness of the NPS during the 2021-22 school year. To the contrary, according to the DPC, Parent was “initially pleased with the program” (Ex. A-2), and the student did not begin to have issues there until the fall of 2022 (Tr. 39-40). Statements of Parent Counsel are not evidence, but they are an admission against interest.

[9] I do not credit this assertion, as it is contradicted by the student’s transcript, which shows that he successfully passed all his classes and received credit for them, with the exception of woodshop. (Ex. K-3-4; L-1).

[10] Although the DPC alleges a similar meeting on December 8, 2022 (Ex. A-2), I do not credit that assertion, as it was not mentioned in Parent’s affidavit (Ex. O), nor was it argued by Parent Counsel at the hearing (Tr. 40), and the 5/26/23 IEP in evidence made no mention of a December meeting (Ex. C). The 5/26/23 lists recent evaluative materials, none of which appear to correspond to a 12/8/22 IEP meeting either. (Ex. C-1).

[11] Accordingly, whether a residential placement is the student’s least restrictive environment is also not in dispute.

[12] Parent has contradicted herself on this claim elsewhere in the record.

[13] At hearing, Parent Counsel argued that the NPS was inappropriate because the student needed “more therapy and more services for his behavioral needs.” (Tr. 40). However, it is the student’s IEP that determines the amount of therapy and services, and Parent has not challenged the substantive appropriateness of the IEPs here. So, any issue regarding the substance of the IEPs was not properly raised and will not be considered as part of the final order.

[14] Facts from the “Introduction and Procedural History” and “Background” sections above are incorporated here as well.

[15] Although arguments of counsel are not evidence, given the dearth of evidence concerning the NPS placement in the record, I find it noteworthy to mention that this was corroborated by Parent Counsel at the DPH. (Tr. 39-40). Furthermore, this statement by Parent Counsel was against interest. Although Parent testified, she chose not to address this topic in her affidavit.

[16] The face of the 5/26/23 IEP does not reflect any discussion of or decisions regarding the school placement. (Ex. C). Given the Parent’s credibility issues, it is unclear what the substance of the conversation was at the meeting.

[17] He earned 6.18 credits, which is more than one fourth of the 24 credits necessary for graduation. (Ex. L-1-2).

[18] Although the general program description lists a number of clinical techniques and methods used by the Private School (Ex. D-1-3), I have not included them here unless there is evidence in the record that they were used with this particular student.

[19] REDACTED is an accreditation company used by many states and countries. (Tr. 53-54). Although the record contains evidence of other previous accreditation, that certificate expired in June of 2022, and it is unclear whether it was renewed for the school year at issue. (Ex. E-1).

[20] Parent testified at hearing that the school orally agreed to waive this provision and wait for payment (Tr. 71), but there is no written amendment to the contract in evidence.

[21] There are no mandated family visits mentioned in the contract. (Ex. F).

[22] The undersigned was unable to explore this discrepancy at hearing because Parent chose not to call any witnesses familiar with the Private School’s billing practices. (See Tr. 55).

[23] Her taxable income in 2022 was less than half the cost of the Private School for the current school year. (Ex. P).

[24] The testimonial affidavits contain some generalized allegations of supports offered by Private School. I have not included them here unless there is specific information in the record that this student received those supports.

[25] This is the group therapy session. (Tr. 49).

[26] The student’s English teacher has twenty years of teaching experience, but it is unclear whether they hold any teaching certifications. (Tr. 52).

[27] The student’s geography teacher also teaches at the university level, but it is unclear from the record whether they hold any teaching certifications. (Tr. 52).

[28] The teacher for this class is a certified math teacher. (Tr. 52).

[29] The teacher for this class is a retired public-school teacher, but it is unclear from the record whether they hold any current certifications. (Tr. 52).

[30] Although the schedule in evidence is labeled as the summer schedule, it stayed the same for the fall semester. (Tr. 48-49).

[31] There is no more specific information in the record about the size of the student’s classes.

[32] In his individual therapy with the student, Therapist uses Cognitive Behavioral Therapy, Dialectic Behavior Therapy, Motivational Interviewing, and Anger Replacement therapy. (Ex. N-2). However, the record contains no description of those modalities or how they address the student’s needs.

[33] Although the affidavits of Academic Director and Therapist state that the student receives individual therapy at least once per week (Ex. M-3-4; N-1), I do not credit that assertion because it is contradicted by Therapist’s live testimony at hearing (Tr. 62, 65) and elsewhere in his affidavit (Ex. N-2), as well as the Master Treatment Plan (Ex. J-8). Academic Director’s affidavit also states that the student receives family therapy once per week (Ex. M-4), but I do not credit that assertion for the same reason. The length of the individual sessions is 45-50 minutes (Ex. N-1), but the length of the family therapy sessions is unclear from the record.

[34] There is conflicting information in the record regarding whether the student receives group therapy four or five times weekly. (Ex. J-8; G-1; M-3-4; N-1-2; Tr. 49, 65).

[35] At the NPS, it appears that the student visited his father and siblings on the weekends while home. (Ex. B-1). The student had a close relationship with his siblings and looked forward to seeing them on weekends. (Ex. C-3).