New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 600527 - NYC: 248823

FINDINGS OF FACT AND DECISION

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

Date of Birth: [REDACTED]

School District: NYC # [REDACTED]

Hearing Requested by: [REDACTED] (“Parents”)

Request Date/Date Complaint Filed: 06/08/2023

Date(s) of Hearing: 08/09/2023

Actual Record Closed Date: 08/22/2023

Date of Decision: 08/22/2023

Date of Distribution if Different than Decision Date: N/A Hearing Officer: Leah Martin, Esq.

Time Sensitive: No

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

NAMES AND TITLES OF PERSONS WHO APPEARED ON 8/9/23

For the Student:

[REDACTED] (“Parents’ Counsel”), [REDACTED] (“Parent”), [REDACTED] (“Psychologist”)

For the Department of Education:

[REDACTED] (“DOE Representative”)

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parents’ Due Process Complaint (“DPC") filed on June 8, 2023. (Ex. A).^[2] In the DPC, Parents allege 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”) and Section 504 of the Rehabilitation Act of 1973 (“504”) for the 2022-23 school year. (Ex. A). Parents have unilaterally placed the student in a private school (“Private School”) and are seeking reimbursement of tuition and transportation costs for the 2022-23 school year. (Id.).

I was appointed on June 9, 2023. On July 11, 2023, the parties appeared virtually for a pre-hearing conference (“PHC”). At the PHC, a hearing date was set. (See PHC Transcript). Pendency was raised in this matter. (Ex. A-1-2). Parents contend that pendency lies in the unappealed findings of fact and decision (“FOFD”) from May 26, 2022 (Case # 221190) and includes tuition at the Private School. (Ex. A-1-2; C-21, 24). As of the hearing date, pendency had not been agreed to by the district and Parents’ Counsel asked that it be addressed as part of the final order. (Tr.).

A virtual due process hearing (“DPH”) was held on August 9, 2023. It was a closed hearing. Parent was present and represented by Parents’ Counsel. The DOE Representative was also present. At the DPH, the DOE presented no exhibits or witnesses and waived an opening statement. Parents entered 12 exhibits into evidence (A-L).^[3] (Tr.). Parents presented testimony from two witnesses at the hearing: the Psychologist^[4] and the Parent, both by a combination of affidavit 5 and live testimony. The parties made oral closing arguments on the record. (Tr.). The record was closed on August 22. ^[6]

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., and Section 504,7 29 U.S.C. §794(a).

7 The New York City Department of Education delegated to OATH the authority to adjudicate due process complaints under Section 504. NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504-delegation-Signed.pdf.

BACKGROUND

The student was in seventh grade during the school year at issue and is classified as a student with a learning disability. (Ex. D-2; G-1). The student has been diagnosed with Developmental Coordination Disorder, Specific Learning Disorders with Impairments in Written Expression and Math, Anxiety, Dyslexia, and Attention Deficit Hyperactivity Disorder (“ADHD”), inattentive type. (Ex. D-4, 11). On November 16, 2021, the DOE last convened a meeting of the committee on special education (“CSE”) 8 and developed an individualized education program (“IEP”) for the student. (Ex. A-2). The 11/16/22 IEP recommended an integrated co-teaching (“ICT”) program and related services. (Ex. A-2).9 On August 22, 2022, Parents sent the DOE a Ten-Day Notice, providing notice of their intent to enroll the student in the Private School unless an appropriate program was offered by the DOE prior to the start of the school year. (Ex. A-3; B). The DOE did not substantively respond to the Ten-Day Notice and the student was unilaterally placed at the Private School for the 2022-23 school year. (Ex. A-3; L-2).

ISSUES

Parents contend that the DOE committed various procedural and substantive violations that resulted in a denial of a FAPE (under the IDEA and 504) for the 2022-23 school year. (Ex. A). 10 Parents additionally contend that the Private School is an appropriate placement for the student. (Ex. A-3). Finally, Parents contend that the DOE failed to fulfill its obligation to provide transportation to the student. (Id.; Tr.). By way of relief, Parents seek reimbursement of tuition and transportation costs for the student’s attendance at the Private School for the 2022-23 school year, in the amount of $73,850 ($67,850 tuition plus $6000 transportation).^[11] (Ex. A-3). Parents allege that the equities support their claim for reimbursement for the school year at issue. (Id.). The DOE has conceded a denial of a FAPE here (Tr.) and is not contesting the Parents’ position as to pendency (Tr.), so the only remaining issues are the appropriateness of the Private School placement and the equities.

FINDINGS OF FACT

The student has been receiving special education since preschool. (Ex. L-1). According to Parent, he has struggled in school due to his executive functioning deficits and learning differences. (Ex. L-1). For many years, the student struggled to progress in an ICT classroom and Parent supplemented

8 Parents participated in the meeting. (Ex. L-2). 9 The record does not contain more details regarding the recommended program, as the IEP is not in evidence and there was no testimony about it. 10 The DPC alleges that the November 16, 2021 CSE meeting was not properly constituted, that the CSE relied on insufficient evaluative data, that they failed to adequately consider the Parents’ evaluative materials, that they impeded the Parents’ right to participate in the development of the student’s IEP, that the recommended program was not consistent with available evaluative data, that the program lacked adequate structure and supports to meet the student’s management needs and achieve his goals, that the present levels of performance in the IEP were not accurate, that the IEP’s management needs were insufficient, that the IEP’s goals were insufficient, and that no appropriate placement with an appropriate peer grouping was offered to implement the student’s IEP. (Ex. A-2-3). Since the DOE has conceded a denial of a FAPE in this case, there is no need to address each of these alleged violations individually, and they will not be discussed in detail herein. his education with private tutoring. (Ex. L-1). During the pandemic, the student’s performance actually improved, as his class met in much smaller groupings and he got more individual attention. (Ex. L-1).

In April of 2021, Parent obtained a neuropsychological evaluation update 12 of the student. (Ex. D-1). The evaluator13 reviewed the student’s developmental history and records and performed a number of standardized tests: Wechsler Individual Achievement Test (“WIAT-IV”)(an academic skills test), Thematic Apperception Test (a test of social-emotional functioning), and Conners Comprehensive Behavior Rating Scales (a test of social-emotional functioning). (Ex. D). The evaluation report notes that while the student’s early reading issues were remediated with interventions, the student’s “oral and written expressive, language processing, graphomotor and attentional challenges persist.” (Ex. D-4). Based on teacher and parent reports, the evaluator noted that the student had improved during his fifthgrade year, in an ICT class with related services of speech language therapy (“SLT”) and occupational therapy (“OT”), but that the student’s teachers and Parents attributed his success to the smaller class setting 14 and individual supports he had received during hybrid learning. (Ex. D-2-3). The teacher report also noted the student’s continued struggles with “sustained attention, task completion and overall executive functioning.” (Ex. D-2).

Based on his behavioral observations, the neuropsychological evaluator did not notice “overt inattention or motor restlessness” but did note that the student “processed information very slowly and needed to expend considerable effort to maintain …deep concentration.” (Ex. D-5). Based on previous testing, the evaluator found that the student’s cognitive potential was in the high average range, with considerable strength in quantitative analogical reasoning, appreciation of social rules and conventions, verbal concept formation, and the scope of his vocabulary and general information, but relative weakness in clarity of expression for complex ideas, recognizing structure in complex or ambiguous arrays, and planning and organizing an approach to multistep problems. (Ex. D-6-7). The evaluator noted that while the student’s reading comprehension was on grade level, he had regressed since testing one year prior. (Ex. D-9). Written language was found to be below grade level (one year below for sentence level writing and over two years below for passage level writing). (Ex. D-9). The student’s math skills were found to be approximately one grade level below expectations. (Ex. D-10).

According to the evaluator, the student “requires an increased level of specialized support in and out of school.” (Ex. D-8). This includes “specialized remediation, scaffolded support, a prewriting brainstorming session, outlines, rubrics and checklists to produce his ideas in written form.” (Ex. D-10). Other academic needs include “support[] in developing stronger executive function/problem solving, academic and expressive/receptive language skills.” (Ex. D-11). Due to his regression in word recognition and decoding skills, the student “requires a resumption of additional reading intervention” and continued “intensive, very small group remediation in the areas of written expression and mathematics.” (Ex. D-12). According to the evaluator, the student needs a “full time placement in a well-structured, full-time special education school with a small class and low student to teacher ratio.”

12 The original evaluation was done in June of 2020. (Ex. D-1). The evaluation update was provided to the district. (Ex. L-2). 13 The evaluation was conducted by a licensed psychologist. (Ex. D-1, 18). 14 The student’s in-person classes (two to three days per week) had four to eight students and one teacher. (Ex. D-2). (Ex. D-12). Additional program recommendations include continued SLT and OT,^[15] testing accommodations, and use of a keyboard or other assistive technology in school. (Ex. D-13-14, 18).

Despite the recommendations in the neuropsychological evaluation update, the CSE again recommended an ICT placement at the November 16, 2021, IEP meeting. (Ex. L-2). Parents felt that the student requires a smaller, more supportive program and they expressed this concern to the CSE. (Ex. L-2). Based on the student’s success at Private School the previous year, Parents felt that it would be an appropriate placement for him again during the 2022-23 school year. (Ex. L-3).

On February 9, 2022, Parents signed a contract with Private School, which obligates them to pay tuition in the amount of $67,850 for the student’s attendance during the 2022-23 school year. (Ex. E). The contract provides that parents are responsible for the entire amount unless they accepted a public-school placement on or before September 30, 2022. (Ex. E-1; L-3). In their Ten-Day Letter, Parents requested that the DOE provide the student transportation services to the Private School for the school year at issue. (Ex. B-3). Private School is approximately four to five miles from the student’s home, so Parents required transportation services for the student’s attendance there. (Ex. L-3; Tr.). No transportation was provided by the district, nor did they respond to the transportation request. (Ex. L-3). On July 9, 2022, Parents signed up for busing services through the Private School. (Ex. F-1). By the terms of the written registration agreement, Parents were responsible to pay a $1,500 nonrefundable deposit and then an additional $750 per month for six months, for a total of $6,000 in transportation costs. (Ex. F-1). As of the date of the hearing, Parents have paid the tuition ($67,850) and the busing costs ($6,000) in full, for a total of $73,850. (Ex. L-3; Tr.).

Parents filed a due process complaint for the 2021-22 school year seeking funding for tuition at Private School (and transportation costs). (Ex. A-1; C). In an FOFD issued May 26, 2022, the IHO found that the student had been denied a FAPE and that the Private School program was appropriate for the student. (Ex. C-21, 24). The DOE was ordered to fund the student’s tuition and transportation costs at the Private School for that school year. (Ex. C-24-25).

The Private School is an inclusive^[16] not-for-profit school for kindergarten through 12th grades. (Ex. K-2). Private School is accredited by the New York State Association of Independent Schools. (Ex. K-2). They work with students with a variety of language and executive functioning challenges. (Ex. K-2). Their curriculum is “informed by New York State learning standards.” (Ex. K-4). Their middle school had 102 students during the school year at issue. (Ex. K-3). 13 out of the 37 students in the student’s grade were students with disabilities. (Ex K-3). Most of Private School’s faculty have master’s degrees. (Ex. K-3). Most of the head teachers hold certifications in special education and/or literacy. (Ex. K-3). The middle school has four certified school psychologists on staff. (Ex. K-3). All teachers and staff meet weekly to discuss students’ progress and make any programmatic changes needed to meet the students’ needs. (Ex. K-3). Additionally, faculty meet individually with the director at least monthly to discuss their classes and students. (Ex. K-3). Professional development is provided for Private School staff, including in-house workshops, webinars, conferences, and seminars, all relating to educational fields, interventions, and strategies. (Ex. K-3-4). Instruction at Private School is predominantly multi-sensory and multi-modal. (Ex. K-4).

Upon admission to Private School, they conducted a review of the student’s prior report cards and records. (Tr.). Student progress is measured through formal and informal testing and teacher assessments, and instructional pace and methods are adapted to meet the students’ individual needs. (Ex. K-4). Private School communicates with Parent on a regular basis and addresses any concerns as they arise. (Ex. L-3).

The student’s class schedule at Private School included Advisory, writing, sports/fitness, science, theater, art, math, English Language Arts (“ELA”), social studies, academic enhancement (“AE”), Town Hall,^[17] and Park^[18] classes. (Ex. G; I-8; J-8). Private School provided various accommodations for the student during the school year at issue, such as:

• breakdown of information into smaller steps and use of graphic organizers for writing • frequent teacher redirection and checks for understanding, multi-modal materials, and repetition of concepts to address his attentional, working memory, and processing deficits • breakdown of information and sequencing of tasks, support for time management, frequent check-ins and prompts, help organizing belongings and homework, and help with scheduling to assist with the student’s executive functioning deficits • previewing materials for class discussions, practice tests, extra time and organizational support, annotative strategies, teacher check-ins, writing formulas and checklists, scaffolded questions, a color-coded system, and small group discussion for ELA • modified instructional pace, frequent check-ins and prompting, modeling, scaffolding, emphasized note taking, and redirection for math • extra time, modified assessments, frequent check-ins, multi-sensory lessons, and additional small group academic enrichment periods for science and social studies (Ex. K-5-7, 8-10; H-3).

The student’s ELA class had ten students and one head teacher, with push-in support by a speech therapist. (Ex. K-7). The ELA teacher is certified to teach general and special education. (Ex. K-7). The push-in speech therapist is a licensed speech-language pathologist. (Ex. K-7-8). The ELA students have similar needs and functional reading levels. (Ex. K-8). With support, the student was able to access grade-level ELA content in this class. (Ex. K-8).

The student’s writing class had ten students and was co-taught by the student’s ELA teacher and Psychologist. (Ex. K-11). The student had this class twice per week to address areas of weakness and receive additional time and support for his ELA writing assignments. (Ex. K-11).

The student’s math class had 13 students with one teacher. (Ex. K-8). The math teacher is a certified special education teacher. (Ex. K-8). The math students have similar needs and ability to work on grade-level content. (Ex. K-8).

The student’s science class had 19 students and one teacher. (Ex. K-9). The science teacher is a certified general and special education teacher. (Ex. K-9). The class contained a mix of special education and regular education students, all working on grade-level content. (Ex. K-9).

The student’s social studies class had 19 students and one teacher. (Ex. K-10). The teacher has a bachelor’s degree in History and Education, a master’s degree in History, and over 30 years of teaching experience. (Ex. K-10). The class contained a mix of special education and regular education students, all working on grade-level content. (Ex. K-10).

The student attended Advisory period in the mornings and afternoons. (Ex. K-2). This period assisted the student in preparing for the school day, gave reminders about assignments and deadlines, did any other troubleshooting needed, and then helped the student pack up at the end of the day. (Ex. K-2, 7). This period also included the Social Institute program, which is a social-emotional learning curriculum that addresses life skills and the use of social media and technology. (Ex. K-7). The Advisory class had 13 students and one teacher. (Ex. K-7). Once a week, the student attended AE class, to assist with skill development in areas of weakness. (Ex. K-10). During this period, the student could preview and review content from his core classes and receive individual guided homework support. (Ex. K-10-11).

The student received one individual pull out SLT session per week, in addition to multiple pushin sessions during his ELA and writing classes. (Ex. K-11; H-3; Tr.). All sessions were provided by a certified speech therapist. (Ex. K-12). Additionally, the student received a weekly executive functioning training session in a group of two. (Ex. K-12; Tr.). This session was conducted by a graduate-level school psychology intern. (Ex. K-12). The sessions focused on homework support, including breakdown of larger assignments, planning for homework completion, and organization of the student’s schoolwork. (Ex. K-12; Tr.). Psychologist testified that the student also received Orton Gillingham training for reading remediation (Tr.), but it is unclear from the record whether that took place in one of the student’s other classes or as a separate pull-out session. Private School does not offer formal OT, but the student’s motor challenges were addressed through 1) a heavy emphasis on the use of technology,^[19] 2) help with planning and organizing his thoughts for writing through his SLT sessions and executive function training, and 3) AE periods with small groups and individual support. (Tr.). These supports eliminated much of the student’s OT needs. (Tr.). The student’s motor deficits did not impede his academic functioning at Private School. (Tr.).

The student made progress at Private School during the school year at issue. According to Psychologist, he gained confidence and showed improvement in his reading, writing, science, social studies, and math skills. (Ex. K-8-10). The student’s standardized math composite scores^[20] went up by six percentiles over the course of the year. (Ex. K-12). His standardized assessment scores in reading went up twelve percentiles. (Ex. K-12). The student was able to successfully access grade-level curriculum across all subject areas. (Ex. K-12-13; H; I; J). According to the student’s report cards, his “syntax has greatly improved” (Ex. H-3; J-3), he is making progress in his written responses to homework questions (Ex. I-3), he has begun to use complex sentence structures in his writing (Ex. I-3), his “inference skills are progressing” (Ex. I-3), he “has shown slow, steady improvement” in math (Ex. I-5), his math participation, confidence, neatness, and organization have increased (Ex. I-5; J-5), he has progressed in his independent editing of writing pieces (Ex. J-3), he has improved his ability to answer questions about books and homework (Ex. J-3), he has shown growth in his knowledge and application of sentence structure and grammar (Ex. J-3), and he is better able to generate writing ideas (Ex. J-3). Parent agrees that the student “has made good progress” in the Private School this year. (Ex. L-3). According to Parent, the student is much more confident doing his schoolwork at home. (Ex. L-3). According to Psychologist, Private School was an appropriate program for the student for the 2022-23 school year. (Ex. K-12-13). She also believes that the program recommended in the 11/16/22 IEP was not appropriate due to its large class size and insufficient supports. (Ex. K-13).

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 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 NYCRR §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 IDEA requires school districts to provide transportation “if that service is necessary for a disabled child ‘to benefit from special education,’ even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport.” Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir 1997) (citations omitted); accord Mr. P. v. West Hartford Bd. of Educ., 885 F.3d 735, 741 (2d Cir 2018)(related services include necessary transportation) citing 20 U.S.C. §1401(26)(A) and Bd. of Educ. v. Rowley, 458 U.S. 176, 188 (1982); see also 34 C.F.R. §300.34. Additionally, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs." NYS Educ. Law §4401(1)(emphasis added); §4402(4)(a); 8 N.Y.C.R.R. §200.1(ww); NYC Chancellor’s Regulation A-801(2)(I)(A) (“State Education Law mandates that the City School District provide transportation for special education children residing in New York City to and from the school they legally attend”).

The IDEA requires that school districts re-evaluate students with disabilities at least once every three years, unless the parent and the district agree that re-evaluation is unnecessary. 34 C.F.R. §300.303(b). Additionally, a district must honor a parent’s request for re-evaluation if one has not occurred within the previous 12 months. M.S. v. Lake Elsinore Unified School District, 69 IDELR 148 (9th Cir. 2017). As part of any re-evaluation, the CSE must review existing evaluative data on the student, including any private evaluations, classroom observations, and observations by teachers and service providers, and then conduct further assessments if necessary. 34 C.F.R. §300.305. The failure to conduct further assessments can result in a denial of a FAPE if more information is needed to develop an appropriate IEP. See, e.g., New Mexico Pub. Educ. Dep’t, 115 LRP 12278 (SEA NM 03/02/15); James v. Dist. of Columbia, 68 IDELR 11 (D.D.C. 2016). 504

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 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).

Under Section 504, an individual with a disability includes any person who “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such impairment, or (iii) is regarded as having an impairment.” 34 C.F.R. §104.3(j)(1). However, only students who have a substantial limitation of a major life activity have a separate entitlement to a FAPE under the statute. 29 U.S.C. §705(20)(B)(i); 42 U.S.C. §12102(2). Section 504 and the Americans with Disabilities Act share the same non-exhaustive list of major life activities, which include seeing, hearing, eating, walking, standing, sitting, speaking, learning, reading, concentrating, thinking, writing, and communicating, among others. See 28 C.F.R. §35.108(c)(1)(ii). In examining whether a district has failed to provide a FAPE under 504, the office of civil rights (“OCR”) considers whether: 1) the district evaluated the student per 504 requirements; 2) the student's needs were determined on an individual basis; and 3) the district provided related aids and services necessary to meet the student's individual needs. Mansfield (AR) Pub. Schs., 59 IDELR 265 (OCR 2012). Section 504 requires that districts reevaluate a student periodically and before any significant change in placement. 34 C.F.R. §104.35(a) and (d).

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). Normally, the parents would have the burden of proof under 504. See, e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990). However, because all 504 claims here are subsumed by the IDEA, the District has the burden of proof on all issues regarding the provision of a FAPE.

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. 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).

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). 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, whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, and 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).

PENDENCY

The IDEA and the New York State Education Law require that a student remain in the student’s then-current educational placement, unless the student’s parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation, or placement of the student. 20 U.S.C. §1415(f); Educ. Law §§ 4404(4), 4410(7)(c); 34 C.F.R. §300.518(a); 8 N.Y.C.R.R. §200.5(m); see also Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 (E.D.N.Y. Oct. 30, 2008); Bd. of Educ. v. O'Shea, 353 F. Supp. 2d 449, 455-56 (S.D.N.Y. 2005); Application of a Student with a Disability, Appeal No. 14-024; Application of the Dep't of Educ., Appeal No. 08-061. Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships. Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982).

Under the IDEA, the pendency inquiry focuses on identifying the student’s then-current educational placement. Mackey v. Bd. of Educ., 386 F.3d 158, 163 (2d Cir. 2004), citing Zvi D., 694 F.2d at 906. Although not defined by statute, the phrase “then current placement” has been found to mean either: (1) the placement described in the student’s most recently implemented Individualized Education Program (“IEP”); (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP. Dervishi v. Stamford Bd. of Educ., 653 Fed. Appx 55, 57-58 (2d Cir. June 27, 2016), quoting Mackey v. Bd. of Educ., 386 F.3d 158, 163 (2d Cir. 2004); T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-

71 (2d Cir. 2014)(holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"); see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 (2d Cir. 2015)(holding that a student's entitlement to stay-put arises when a due process complaint notice is filed); Letter to Baugh, 211 IDELR 481 (OSEP 1987). Courts have generally agreed that a student’s “then-current educational placement” refers to a student’s last-agreed-upon educational program (and services) before the parent requested the due process hearing. See Dervishi, 653 Fed. Appx. at 57-58; Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71.

The Second Circuit has stated that educational placement means “the general type of educational program in which the child is placed” (Concerned Parents, 629 F.2d at 753, 756) and that “the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers” (T.M., 752 F.3d at 171). However, if there is an agreement between the parties on the student’s educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student’s then-current educational placement. Bd. of Educ. v. Schutz, 290 F.3d 476, 483-84 (2d Cir. 2002); Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp. 2d 354, 366 (S.D.N.Y. 2000), aff'd, 297 F.3d 195 (2d Cir. 2002); see also Letter to Hampden, 49 IDELR 197 (OSEP 2007). The regulations provide that an SRO decision that “agrees with the parents that a change of placement is appropriate . . . must be treated as such an agreement.” See 34 C.F.R. §300.514(a) and (c); Mackey, 386 F.3d at 163. Similarly, an agreement is implied by law where an unappealed FOFD from an IHO finds that a unilateral placement is appropriate. See Schutz, 290 F.3d 476; Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036, 52 IDELR 1 (9th Cir. 2009); St. Tammany Parish Sch. Bd. v. State of Louisiana, 142 F.3d 776, 28 IDELR 194 (5th Cir. 1998); Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 24 IDELR 839 (3d Cir. 1996).

ANALYSIS AND CONCLUSIONS OF LAW

Pendency

Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement. Mackey, 386 F.3d at 163. In light of the parties’ agreement, I find that the May 26, 2022, unappealed FOFD is the basis of the student’s last-agreed upon program, which includes placement at Private School with transportation, and therefore serves as the student’s stay-put entitlement for the pendency of this matter. (Ex. C-21, 24).

Prong 1

The student’s eligibility for special education and disability classification are not in dispute. I have reviewed the Parents’ Section 504 claims articulated in the DPC and find that such mirror and have merged with those allegations as made under the IDEA. Accordingly, the analysis as to the provision of a FAPE need not be evaluated separately. The DOE has the burdens of production and persuasion as to the provision of a FAPE.

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden at the hearing. The DOE presented no evidence or witnesses to dispute any of the Parents’ claims, and they conceded a denial of a FAPE for the school year at issue. Furthermore, the DOE presented no cogent or responsive explanation for the decisions made in the IEP. For these reasons, the DOE cannot sustain its burden and I find that they failed to offer the student a FAPE for the 2022-23 school year. ^[21]

Here, the provision of transportation was a necessary component of a FAPE. See Mr. P., 885 F.3d at 741; 20 U.S.C. §1401(26)(A); 34 C.F.R. §300.34; NYS Educ. Law §§ 4401(1); §4402(4)(a); 8 N.Y.C.R.R. §200.1(ww); NYC Chancellor’s Regulation A-801(2)(I)(A). It is undisputed that Parents requested the provision of transportation here and there is no indication that the district even attempted to provide it. Accordingly, the denial of a FAPE here includes the denial of appropriate transportation.

Prong 2

I find that Parents have met their burden in proving that the Private School offered an educational program which met the student’s needs under Prong II of the Burlington/Carter standard. Here, the weight of the evidence establishes that the student’s individual special education needs were addressed by the Private School and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364. With the exception of OT, the program provided by the Private School was largely consistent with the recommendations of the neuropsychological evaluation. The only specific deficiency raised by the DOE was the fact that the Private School program did not offer the related service of OT, which was specifically recommended by the neuropsychological evaluation. However, to meet their burden the Parents need not show that the unilateral placement was perfect or met all state educational standards. Frank G., 459 F.3d at 364-365; T.K., 810 F.3d at 878; M.S., 231 F.3d at 105. Rather, Parents must only show that, based on the totality of the circumstances, the placement was “reasonably calculated to enable the child to receive educational benefits” (Frank G. 459 F.3d at 364-365), which they have done here. Furthermore, while a unilateral placement’s failure to address a significant area of need could weigh against a finding of appropriateness [see R.S. v. Lakeland Cent. Sch. Dist., 2011 WL 1198458, at *5 (S.D.N.Y. Mar. 30, 2011)], here there is sufficient evidence in the record to show that the Private School addressed the student’s OT needs through other areas of programming, such as SLT, executive functioning training, and technology, and that the lack of OT sessions did not impede the student’s ability to access the curriculum or make academic progress. Moreover, I find that the Parents’ witnesses were credible, that the student’s program was offered by appropriately qualified individuals, and that the student made progress at the Private School. For all these reasons, I find that Parents have met their burden of showing that the Private School was an appropriate unilateral placement for the 2022-23 school year.

With regards to transportation, Parents have also met their burden. The student was entitled to transportation and when the district failed to provide it, the Parents were forced to pay out of pocket for private services. I find that the transportation services contracted through Private School were appropriate here as well.

Prong 3

The equities here favor the Parents. Parents have been fully cooperative with the DOE. They participated in the CSE meeting and provided their private evaluation results to the DOE. Additionally, Parents provided the necessary Ten-Day Notice of their concerns with the DOE’s failure to offer a FAPE for the 2022-23 school year, and timely requested transportation to and from the unilateral placement. The record contains evidence of the Parents’ financial obligation to pay the private school tuition and transportation in full, and in fact they have already paid. Here, the DOE has not alleged that the Private School tuition or transportation costs are excessive or that the enrollment contracts were fraudulent in any way. Furthermore, the DOE has made no allegations of any actions on the part of the Parents that would weigh against them in terms of the equities. Accordingly, equity demands that the DOE reimburse Parents for the student’s tuition and transportation costs at the Private School for the entire 2022-23 school year.

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 Parents’ remaining claims not discussed herein are dismissed with prejudice.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED THAT:

1. Parents’ claim for tuition reimbursement for the student's unilateral placement at the Private School is GRANTED for the 2022-23 10-month school year as follows: The New York City Department of Education shall reimburse the Parents for any tuition paid to the Private School for the 2022-23 school year upon submission of proof of payment (less any amount paid in pendency) up to $67,850; and it is further

2. ORDERED that the New York City Department of Education shall reimburse the Parents for any transportation costs for the student’s attendance at the Private School for the 2022-23 school year upon submission of proof of payment (less any amount paid in pendency) up to $6,000.

SO ORDERED.

DATED: August 22, 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. Request for Impartial Hearing 6/8/23 3 pages

B. Ten Day Notice 8/22/22 3 pages

C. FOFD 5/26/22 21-22 27 pages

D. Neuropsychological Evaluation Update 4/21/21 21 pages

E. Enrollment Contract 2/9/22 3 pages

F. Bus Registration Agreement 7/9/22 1 page

G. Class Schedule 2022-23 2 pages

H. 1st Trimester Report Card 2022-23 8 pages

I. 2nd Trimester Report Card 2022-23 8 pages

J. 3rd Trimester Report Card 2022-23 9 pages

K. Psychologist Direct Testimony Affidavit 7/24/23 14 pages

L. Parent Direct Testimony Affidavit undated 4 pages

IHO’S EXHIBITS

- - - -

Footnotes

[2] Exhibits shall be referred to as follows: Ex. followed by lettered designations for Parents’ 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, Parents’ Exhibit A, page 1, will be referred to as (Ex. A-1). Since the transcript was not received before this decision was submitted, all references to the hearing transcript will be noted as (Tr.) without the corresponding page numbers.

[3] Exhibit C, the FOFD from the previous school year’s DPH, was admitted for the sole purpose of determining pendency. (Tr.).

[4] She is a New York certified bilingual school psychologist and has been at Private School since 2018. (Ex. K-1). She has a bachelor’s degree in Psychology and a Master of Science in Education, as well as a Ph.D. in School Psychology. (Ex. K-1).

[5] Parent’s testimony affidavit (Ex. L) was not notarized but she swore to its veracity on the record. (Tr.).

[6] The record was left open for receipt of the hearing transcript but unfortunately it was not received before the decision was due.

[11] The DPC also requests attorney’s fees. Since I do not have the authority to grant them, this request will not be discussed further.

[15] No particular amount was recommended. (Ex. D-13).

[16] They educate both disabled and nondisabled students. (Ex. K-2).

[17] It is unclear from the record what this class entails.

[18] It is unclear from the record what this class entails.

[19] The student’s main motor challenge was with handwriting. (Tr.). Private School provided the student with a computer and the CANVAS program, which gave him class notes and materials that reduced the need for handwritten notes. (Tr.). His provided computer also had word processing programs to further assist with his writing. (Tr.). Private School provided the student with technology training so that he could utilize these programs effectively. (Tr.).

[20] These scores are based on Measures of Academic Progress (“MAP”) assessments conducted in September of 2022 and June of 2023. (Ex. K-12).

[21] That is not to say that an ICT class with the proper supports could not be appropriate for the student. Rather, since the DOE declined to present a case, they did not meet their burden of proving its appropriateness. I will, however, note that the student to teacher ratio in most ICT classes is not dissimilar to the student’s math, science, Advisory, and social studies classes at Private School.