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NYSED # 601280 - NYC #249266
FINDINGS OF FACT AND DECISION
Case Number: 249266
Student’s Name: [REDACTED] (Student)
School District: N.Y.C. Dept. of Ed., District #[REDACTED]
Service District #[REDACTED]
Impartial Hearing Officer: Kevin T. McGrath, Esq.
Date of Filing: 06/26/2023
Hearing Requested by: [REDACTED] (Parents)
Dates of Hearing: 09/11/2023
Record Close Date: 10/06/2023
Date of Decision: 10/06/2023
Names and Titles of Persons Who Appeared on September 11, 2023:
For the Department of Education (DOE):
[REDACTED], Consultant Impartial Hearing Representative
For Student:
[REDACTED], Esq., [REDACTED]
[REDACTED], Parent - witness
[REDACTED], Head of School of [REDACTED] - witness
INTRODUCTION
Parents, through counsel, filed a Due Process Complaint (DPC) on June 26, 2023. In the DPC, Parents allege that the Department of Education (DOE) failed to offer Student[1] a free appropriate public education (FAPE) for the 2023-2024 school year.[2] The DPC asserts the DOE failed to provide Student with a FAPE for the 2023-2024 school year when its Committee on Special Education (CSE): (1) failed to complete an assistive technology evaluation; (2) failed to recommend one to one instruction/small group instruction; (3) recommended an inappropriate class size which does not provide enough opportunities for sufficient instruction from a qualified special education teacher; (4) failed to recommend Applied Behavior Analysis (ABA) services; (5) failed to offer sufficient “parent training;” (6) failed to offer supervision by a Board Certified Behavior Analyst (BCBA); (7) failed to allow Parents to add to or review a draft IEP; (8) created an Individualized Education Program (IEP) which was not based upon legally sufficient evaluations; (9) failed to complete an Functional Behavior Analysis (FBA)/Behavior Intervention Plan (BIP); (10) failed to address Student’s need for PROMPT based speech therapy and should have recommended this methodology; (11) failed to appropriately address Student’s Apraxia diagnosis; and (12) failed to recommend an appropriate placement location or a location that could implement the IEP for the 12 month school year.[3]
The DPC requests: (1) the direct funding of tuition at Private School for the 2023-2024 school year; (2) reimbursement to Parents for any payment made to Private School for the 2023-2024 school year; and (3) the DOE provide appropriate transportation to and from Student’s home and Private School. [4]
As detailed below, I hold that: (1) concerning the 2023-2024 school year, the DOE made substantive violations in the provision of services, which sufficiently establish a denial of FAPE; (2) Private School is an appropriate placement for Student; and (3) the equities in the action favor Parents.
PROCEDURAL HISTORY
I was appointed as the Impartial Hearing Officer (IHO) on June 27, 2023. The DOE did not hold a resolution meeting or file a due process response concerning this action. A Prehearing Conference was held on August 1, 2023, and a Prehearing Conference Summary and Order was issued the same day.[5]
A merits hearing was held before me on September 11, 2023. At the hearing, DOE Representative produced three (3) exhibits. Parents’ Representative presented 16 exhibits, and all were admitted into the record.[6] Both parties made opening statements, and DOE Representative rested their case without presenting testimony from witnesses. Parents’ Representative produced Parent #1[7] and Private School Representative, who were cross-examined by DOE Representative.
The parties were granted permission to submit written closing statements. [8]
One (1) order of extension was granted in the action.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, IDEA), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
FINDINGS OF FACT
After thoroughly reviewing the record, I make the following findings of fact and determinations.
Student is [REDACTED] years old at the start of the 2023-2024 school year and attended Private School on a 12-month school year basis.[9] Student’s eligibility for special education supports and services is not disputed based on the CSE designation and uncontested finding that Student presents with “Autism.”[10] Specifically, Student was examined in 2022 by a psychologist and diagnosed with Autism Spectrum Disorder (ASD), apraxia of speech, and fine and gross motor delays.[11] The psychologist made several recommendations regarding Student’s academic, emotional, and social needs, including: that Student be placed in a small, structured classroom that offers 1:1 instruction; placed in a classroom with minimal distractions; and receive 30 hours of intensive 1:1 ABA instruction weekly.
Student has received services from the DOE since preschool[12] and began attending Private School in 2019.[13] On March 2, 2023, the CSE held a meeting and created an IEP for the 2023-2024 school year (2023 IEP). The 2023 IEP recommends Student: (a) be placed at a “District 75” Specialized School in a classroom with eight (8) students, one (1) teacher, and one (1) assistant teacher (8:1:1); (b) receive speech and language therapy three (3) times a week for 30 minutes in an individual setting (3x30 1:1); (c) receive occupational therapy three (3) times a week for 30 minutes in an individual setting (3x30 1:1); (d) receive physical therapy two (2) times a week for 30 minutes in an individual setting (2x30 1:1); and (d) receive counseling one (1) time a week for 30 minutes in an individual setting (1x30 1:1) and one time a week for 30 minutes in a group setting (1x30 group).[14] Parent #1 and Private School Representative both attended the 2023 IEP meeting.[15] At the 2023 IEP meeting Parent #1 expressed their disagreement with the IEP recommendations, specifically that Student will not be able to make academic and social progress in a larger public school setting and needs a “structured program with LBAs and BCBAs to provide support.”[16]
The DOE sent a school location letter identifying Public School as Student’s educational location for the 2023-2024 school year.[17] Parent #1 toured the facility and was informed by DOE employees that one fifth-grade class did not have available space for Student and another fifth-grade class was “not a good fit.”[18] Further, DOE employees indicated that Student would instead be placed in a third-fourth grade classroom (even though Student would be entering fifth grade); and that the school did not have any available space during the summer for Student (despite Student being mandated to receive 12 months of services); that occupational therapy and speech-language therapy are conducted in the same space (which Parents were concerned would be too distracting environment for Student); and the speech therapists are not PROMPT certified or trained to treat children with Apraxia.[19] Parent #1 was also concerned the building’s large size would make it difficult for Student to navigate.[20]
Private School
Private School is a non-approved school operating with the consent of New York State to provide special education services.[21] Private School Representative is the “Head of School” at Private School.[22] Private School Representative’s responsibilities include: the day-to-day programming and operations for the school; hiring and managing staff; overseeing curriculum and professional development; liaising with students and parents; attending school district meetings; conducting home evaluations; substitute teaching; and attending IEP meetings. [23]
Private School supports Student with various diagnoses including: ADHD, ASD, seizure disorders, and genetic disorders. The students are grouped based on their age and having similar academic/social abilities. The academic instructors possess master’s degrees, and all but one of Student’s teachers are NYS-certified special education teachers.[24] The related service providers and staff are certified or licensed in their practice area.[25]
Private School Representative is familiar with Student from Student’s attendance at the school for several years, their observation of Student in class, and from meeting with Student’s teachers and service providers.[26] The school has developed a BIP for Student and provides 1:1 support and instruction, all overseen by a BCBA.[27] Student has access to an AT device and software, including an AAC device, and a Prologuo2go app.[28] Student’s math and English classrooms have eight (8) students, one (1) teacher, and four (4) behavior therapists (8:1:4), while their science and history classrooms have seven (7) students, one (1) teacher, and four (4) behavior therapists (7:1:4).[29] Student receives speech and language therapy three (3) times a week for 30 minutes in an individual setting; occupational therapy three (3) times a week for 30 minutes in an individual setting; physical therapy two (2) times a week for 30 minutes in an individual setting; and counseling one (1) times a week for 30 minutes in an individual setting.[30]
Regarding the ABA services provided Student in the classrooms, the “classroom supervisor” is listed as ABA Provider, who is currently licensed as a Registered Behavior Technician (RBT), but has a Master’s in Applied Behavior Analysis and completed 1,500 hours of supervised fieldwork.[31] In the classroom, ABA Provider engages in supervising some ABA services provided by other Private School staff.[32] ABA Provider’s activities in the classroom and the services to Student are ultimately supervised by Clinical Supervisor,[33] a BCBA who directly supervises three classrooms.[34]
Private School Representative believes the school has the appropriate programs for Student to make progress in academic fields, improve Student’s ability to speak and be understood; and increase Student’s ability to stay focused and remain regulated in class.[35] Similarly, Parent #1 has seen Student make progress while at Private School, including: beginning to write; showing increased tolerance for doing homework; improving their speech to use complete sentences and ability to be understood; showing more interest in their peers; advocating for themselves regarding needs and dislikes; being better at identify their negative emotions and saying how they feel in the moment; and decreases in hand biting when excited or frustrated. [36]
Parents executed an enrollment contract on May 15, 2023 with Private School for the 2023-2024 school year.[37] Tuition at Private School is $138,000.00.[38] Parents have paid $1,000 towards the tuition for the 2023-2024 school year and may pay an additional amount before the issuance of this decision.[39] Parents request reimbursement for their payments towards tuition and for the balance of tuition to be directly funded as they are financially unable to pay it themselves.[40] The enrollment contract contains a provision allowing for the release from the agreement if Parents accept an appropriate public school placement.[41] Parents acknowledge they remain responsible for the tuition regardless of a due process hearing outcome.[42]
Credibility
I determine the following upon considering the evidence, including all admitted documents and witness testimonies. In accepting the documents, I find them all relevant and representative of the facts. The weight I afforded them will be reflected in the analysis. As for the witnesses, I found no reason to doubt their veracity or the earnestness for the opinions offered, and therefore find all the witnesses and their testimonies credible. The relative weight I afford them will likewise be reflected in the analysis. It is hereby noted that although the DOE cross-examined Parent’s witnesses, said cross-examination did not serve to rebut the relevant testimony in question.
CONCLUSIONS OF LAW AND ANALYSIS
I hold that: (1) concerning the 2023-2024 school year, the DOE made substantive violations in the provision of services, which sufficiently establish a denial of FAPE; (2) Private School is an appropriate placement for Student; and (3) the equities in the action favor Parents.
In support of its case in chief, the DOE’s Representative argued that the evidence demonstrated that Student was provided a FAPE, offered three (3) exhibits, declined to present any witnesses, and briefly cross-examined the witnesses. Parents’ Representative offered 16 exhibits and produced two witnesses while making a compelling opening and closing argument. Nonetheless, the absence of any testimony from a 2023 IEP team member mitigates DOE Representative’s arguments because the documents alone, and without any clarifying information, do not sufficiently establish that a FAPE was provided to Student.
Preliminary discussion on IDEA
The IDEA provides that children with disabilities are entitled to a FAPE.[43] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, delivered in conformity with a comprehensive written IEP.[44] When the local education district complies with the procedural requirements outlined in the IDEA, and when the IEP developed through those procedures is reasonably calculated to enable the student to receive educational benefits, a FAPE has been established.[45] 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.”[46] The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.”[47]
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 parent’s opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parent’s child; or (III) caused a deprivation of educational benefits.”[48] Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE.[49] 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."[50]
In New York, in IDEA due process hearings, school districts have the burden of proof, including the burden of persuasion and burden of production, except that a parent or person in a parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement.[51] A district must pay for the cost of a student’s tuition at a private school if the Burlington/Carter three prongs are satisfied: (1) the DOE denied Student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition.[52]
Prong I
As detailed herein, the DOE did not establish under Prong I that Student was provided a FAPE for the 2023-2024 school year.
The DOE is not required to show that it attempted to “maximize” the potential of students with disabilities under Prong 1.[53] However, the IEP, among other requirements, must establish annual goals designed to meet a student's needs resulting from the student's disability and provide appropriate special education and services.[54] “Appropriateness” means that the IEP accurately reflects the results of evaluations to identify the student's needs,[55] offers sufficient special education services,[56] and is properly implemented.[57] To demonstrate a FAPE, the DOE must offer “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student an opportunity greater than mere ‘trivial advancement.”[58] In addition, the IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.”[59]
In this action, the 2023 IEP denies Student a FAPE because (a) Parents were denied meaningful participation in the IEP development, (b) the DOE failed to demonstrate it provided an appropriate program for Student during the 2023-2024 school year; and (c) the DOE failed to provide an appropriate facility capable of implementing the IEP.
Firstly, the DOE failed to show they properly considered the input from Parents. At the 2023 IEP meeting, Private School Representative recommended that Student be placed in a small special education school that offers 1:1 instruction and ABA services.[60] This recommendation is also consistent with the psychologist's report.[61] Further, the 2023 IEP and PWN do not indicate that the CSE reviewed or considered the psychologist's report.[62] Additionally, the evidence provided by the DOE does not demonstrate that the DOE sufficiently considered Parents’ concerns regarding the services provided to Student.[63] Regarding a specialized school placement with a 6:1+1 ratio or in an approved non-public school, the IEP states that Student, “does not need such intensive specialized instruction to address their educational needs.”[64]
Procedural violations in the formation of an IEP do not automatically entitle a parent to reimbursement, but may if “they ‘impeded the child's right to a [FAPE],’ [or] ‘significantly impeded the parents' opportunity to participate in the decision-making process,’ or ‘caused a deprivation of educational benefits’."[65] The cumulative effect of multiple procedural violations may constitute a denial of FAPE, even if the violations considered individually do not.[66]
I find that the DOE’s simplistic rejection of placement options does not explain why the opinions and recommendations of Parents, Private School Representative, and the psychologist report were rejected. The absence of any testimony from a 2023 IEP team member diminishes the DOE Representative’s arguments because the documents alone, and without any clarifying information, do not sufficiently establish that Parents’ request was considered and properly denied. The evidence establishes that the DOE’s actions denied Parents the opportunity to participate in the decisionmaking process. Parents' right to participate is not merely the right to speak, especially where, as here, the record is devoid of evidence that the CSE meaningfully considered Parents' proposed placement.
Secondly, the DOE failed to show that they created an IEP to meet Student’s individual needs. The 2023 IEP references the observations that Student requires 1:1 support, such as “has demonstrated to write seven words of a sentence with 1:1 support;”[67] “[Student] does well with 1-1 support;”[68] and “he needs support to do each step” (when discussing Student’s math abilities)[69] The 2023 IEP details the need for other significant support resulting from Student’s ASD diagnosis. [70] Despite these comments, the 2023 IEP fails to allow for any 1:1 support or show that Student can still progress in a larger class setting without 1:1 support. Again, the absence of any testimony from a 2023 IEP team member diminishes DOE Representative’s arguments because the documents alone, and without any clarifying information, do not sufficiently establish that this issue was considered and addressed in the IEP.
Thirdly, the DOE failed to demonstrate they provided a placement capable of implementing the 2023 IEP. The U.S. Court of Appeals, Second Circuit, has held that a parent can challenge the placement location if the placement school is "facially deficient" and "cannot satisfy the IEP's requirements."[71] The presented evidence establishes that the Public School placement identified by the DOE could not accommodate Student in a fifth-grade class or even accept Student during the summer in another classroom. This alone is sufficient to establish a denial of FAPE as the location could not provide the services required in the 2023 IEP. The statements regarding Public School’s lack of space to accept Student went unchallenged by the DOE in either their direct case or from any rebuttal evidence. Moreover, the testimony of Parent #1 and Private School Representative concerning Student’s inability to focus and need for individualized support sufficiently demonstrate that Public School would be too large an environment for Student. Additionally, the DOE failed to demonstrate that Student would still be able to remain focused to make progress with related services when Public School combines different therapy sessions in the same room.
I conclude that the evidence in the record indicates that the procedural and substantive violations resulted in a deprivation of educational benefits to Student. Accordingly, based on the above, I hold the DOE failed to provide Student with a FAPE for the 2023-2024 school year.
Prong II
As detailed herein, Parents sufficiently established that Private School was a proper placement for Student.
A private school placement must be “proper under the Act.”[72] This means the private school must offer an educational program that meets students’ special education needs.[73] A parent seeking tuition reimbursement “bear[s] the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”[74] When determining whether a unilateral placement is appropriate, the issue turns on whether the placement is “reasonably calculated to enable the child to receive educational benefits.”[75] A private placement is appropriate if it provides instruction designed to meet a student’s unique needs.[76] A parent needs only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a student with a disability, supported by such services as are necessary to permit the child to benefit from instruction.[77]
DOE Representative’s arguments that Private School is an inappropriate placement are not persuasive. DOE’s Representative questions the school’s appropriateness because a) it provides ABA services without “adherence to the proper New York State licensure hierarchy,” and b) Parents only provide scant evidence of any teaching degrees or licenses held by Private School employees.[78] Regarding the ABA services, DOE Representative argues that ABA Provider improperly supervises other staff members and is given undue freedom in providing ABA services; when, instead, ABA Provider only holds an RBT and should be under the direct supervision of a BCBA.[79] In this action, the testimony demonstrates that Clinical Supervisor is ultimately in charge of supervising the provision of ABA services in the classroom and overseeing ABA Provider. ABA Provider does possess a master’s degree in Applied Behavior Analysis and has completed 1,500 hours of supervised fieldwork. Any de minius supervision by ABA provider over other staff has not been shown to negatively impact Student or result in defective services being provided. It is speculative on the evidence presented to conclude that ABA provider’s actions equate to the school program overall being inappropriate. Accordingly, I decline to accept DOE’s arguments on the issue.
Despite, the DOE Representative’s arguments, the evidence demonstrates the school has hired teachers specially trained to provide special education services to Student. Private School Representative establishes the various names of staff providing services along with details on their educational degrees and superficially references each individual’s licenses/certifications.[80] Further, the evidence shows that Private School openly acknowledges that math teacher has a master’s degree but lacks a degree in mathematics or special education.[81] The evidence does not demonstrate a regression in math abilities due to the math teachers’ actions or an impact on Student’s overall academic progress. Based on the evidence provided in this action, I decline to conclude that one teacher’s possession of a master’s degree, but failure to possess a mathematics degree automatically equates to the teacher’s ineffectiveness and overall school program’s inappropriateness.
Taken as a whole, the testimony and documentary evidence show Private School meets the Frank G. standard and “provides educational instruction specially designed to meet the unique needs” to enable Student to make progress. The evidence demonstrates Private School is an appropriate placement because they: (1) specialize in serving students with difficulties in the acquisition of reading and writing skills and special education needs[82] and have hired teachers specially trained to do so;[83] (2) provides Student with a student-to-teacher ratio of no more than 8:1 for academic instructions;[84] and (3) individualizes instruction for Student.[85] Moreover, Private School Representative has the professional opinion that they can help Student make progress. [86]
The DOE Representative’s cross-examination did not establish any evidence to dispute the claims Student was making progress at the unilateral placement location. The DOE failed to present any rebuttal evidence on the issue of progress. As such, the DOE Representative’s arguments are found to be without merit and failed to negate Parents’ presented evidence.
Based on the above, I hold that Parents have met their burden in proving that Private School offered an educational program that met Student’s needs under Burlington/Carter’s Prong II standard.
Prong III
As detailed herein, the equities favor Parents regarding Student’s unilateral placement at Private School.
Under the third Burlington/Carter prong, courts consider “equitable factors” relevant to an order of tuition.[87] “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [DOE] throughout the process to ensure their child receive[s] a FAPE.”[88] Specifically, equitable considerations include a parent’s participation in IEP meetings, visits to the proposed school placements, and notifying the unilateral placement decision to the DOE. [89]
In this matter, Parents attended the 2023 IEP meetings and arranged for Private School Representative to participate in the meeting. They engaged in a dialogue about Student’s education plan, their concerns about the 2023 IEP (specifically regarding the need for a small class setting with ABA services) and provided the CSE with the neuropsychologist report.[90] The testimony establishes that Parents provided a timely challenge to the IEP (in the DPC) and “Ten-Day Notice” that the DOE failed to offer Student a FAPE for the 2023-2024 school year.[91]
Parents seek reimbursement for their out-of-pocket expenses and for the direct funding of any balance costs owed to Private School. This is an available remedy under the IDEA.[92] I find that Parents sufficiently demonstrated a financial hardship to support the application for the direct funding of Student’s tuition. Parents signed a contract with Private School for the 2023-2024 school year.[93] Parents remain liable for all tuition if a claim under IDEA is unsuccessful.[94] I find the costs associated with Private School, including tuition, are reasonable. Based on the uncontested testimony of Parents, I find no timing issue with the contract’s execution, the decision to engage in admission evaluations at Private School, or the payment of a deposit to reserve a space at a potential school. Moreover, I find that the evidence establishes that Parents cooperated with the DOE and the CSE’s efforts to develop an IEP and recommendation by: attending the 2023 IEP meeting, having representatives from Private School attend the 2023 IEP meeting, touring the facilities at Public School, communicating with employees at Public School regarding their ability to educate Student, and providing neuropsychologist report.[95]
Overall, and after considering the record, I hold that the equities sufficiently support Parents’ claim for tuition reimbursement and order the DOE to directly fund the balance of any tuition to Private School for the 2023-2024 school year.
ORDER
NOW, THEREFORE, BASED ON THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
(1) The DOE denied Student a FAPE for the 2023-2024 school year, and
(2) Parents’ claim for tuition reimbursement for Student’s unilateral placement at Private School is GRANTED for the 2023-2024 school year.
a. The DOE shall reimburse Parents for any money paid to Private School for tuition within 35 days of receiving the invoice and/or proof of payments from Private School or Parents.
b. The DOE shall also directly pay to Private School the balance of any tuition due for the 2023-2024 school year. The combined reimbursement and direct funding shall not exceed $138,000.00 and shall be paid within 35 days of receiving the invoice and/or proof of payments from Private School or Parents.
SO ORDERED.
Kevin T. McGrath
Dated: October 6, 2023
Kevin T. McGrath, Esq. (signed electronically)
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the Parents 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 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 – REDACTION IDENTIFICATION PAGE
| [REDACTED] Information | Term Used In FOFD |
|---|---|
| [REDACTED] | Student |
| [REDACTED] | Date of Birth |
| [REDACTED] | Student’s I.D. Number (OSIS) |
| [REDACTED] | Parent #1 |
| [REDACTED] | Parent #2 |
| [REDACTED] | DOE Representative |
| [REDACTED] | Parents’ Representative |
| [REDACTED] | Private School |
| [REDACTED] | Private School Representative |
| [REDACTED] | Public School |
| [REDACTED] | ABA Provider |
| [REDACTED] | Clinical Supervisor |
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
District Exhibits
| Exhibit | Description | Date | Pages |
|---|---|---|---|
| 1 | IEP | 03/02/2023 | 46 |
| 2 | IEP Attendance Sheet | 03/02/2023 | 1 |
| 3 | PWN | 06/19/2023 | 14 |
Parents Exhibits
| Exhibit | Description | Date | Pages |
|---|---|---|---|
| A | Due Process Complaint | 06/26/2023 | 6 |
| B | Ten Day Notice | 06/19/2023 | 2 |
| C | [REDACTED]-Program Description | 2023-2024 | 1 |
| D | Student Enrollment Contract | 06/16/2023 | 17 |
| E | Tuition Affidavit of [REDACTED] | 07/17/2023 | 2 |
| F | Student Summer Schedule | 2023-2024 | 6 |
| G | Student Fall Schedule | 2023-2024 | 6 |
| H | Student Attendance | 2023-2024 | 1 |
| I | Progress Report | 11/18/2023 | 18 |
| J | Progress Report | 02/17/2023 | 19 |
| K | Progress Report | 06/16/2023 | 21 |
| L | Psychological Evaluation | Varied | 22 |
| M | Tax Return | 2022 | 11 |
| N | Affidavit of [REDACTED][96] | 08/30/2023 | 5 |
| O | Functional Behavior Assessment/Behavior Intervention Plan | 2022-2023 | 15 |
| P | Affidavit of [REDACTED] | 09/1/2023 | 8 |
IHO EXHIBITS
| Exhibit | Description | Date | Pages |
|---|---|---|---|
| I | Prehearing Conference Summary and Order | 8/01/2023 | 4 |
| II | Closing Briefs for the DOE and Parents | 10/3/2023 | 23 |
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Ex. A.
[3] Id.
[4] Id.
[5] IHO Ex. I.
[6] See Appendix B; Tr. at 44-46. The DOE objected to the admission of exhibits I, J, K, and O. However, after considering the parties’ arguments and reviewing the documents, these contested exhibits were admitted into evidence because they were sufficiently reliable and probative on the issues raised at the hearing.
[7] Only Parent #1 provided an affidavit and testimony evidence. There was no suggestion in the record of a disagreement between the two parents regarding the facts, observations, conclusions, and opinions provided by Parent #1. Therefore, the decision uses the plural “parents” and assumes Parent #2 agrees with the facts, observations, conclusions, and opinions expressed by Parent #1.
[8] IHO Ex. II. It is noted that Parent’s Closing Memo contains references to a witness being produced by the DOE. However, no DOE witness was produced in this action. Accordingly, the references to the witness testimony or impact the testimony had on a determination of FAPE being provided are not being considered.
[9] Ex. 1.
[10] Id.
[11] Ex. L at pg 10-12.
[12] Id. at 4.
[13] Id. at 6.
[14] Ex. 1 at pg 37-38. The IEP also recommends Parent Counseling and Training, paraprofessional behavioral support, and Assistive Technology Device of a Dynamic display speech-generating device.
[15] Ex. N at ¶9-11.
[16] Ex. 3 at pg 3.
[17] Ex. 3.
[18] Tr. at 128-129. Parent #1 could not further explain why Student was not a “good fit” for the fifth-grade class but believed it was connected to test results. Regardless, it is uncontested that Student would not be placed in a fifth-grade classroom with similarly aged peers.
[19] Ex. N at ¶15-16. These allegations were raised in the DPC and remain uncontested by the DOE. The allegations are accepted as true because the DOE did not submit any documents or testimony to demonstrate a dispute on the issue.
[20] Id.
[21] Ex. P at ¶4.
[22] Id. at ¶2.
[23] Id. at ¶3.
[24] Id.at ¶22. See also Ex. H. The testimony establishes that the math teacher has a Master’s Degree, but not in mathematics and is not a certified teacher. The teacher received internal training from Private School.
[25] Ex. P at ¶27-28.
[26] Id. at ¶9-12.
[27] Id. at ¶15-17.
[28] Id. at ¶26.
[29] Id. at ¶19, ¶21, and ¶23; Tr. 73-74.
[30] Id. at ¶27.
[31] ABA Provider has met all criteria to become a BCBA but they have not yet taken the exam to become licensed in this role. Tr. 78-81.
[32] Tr. 78-81.
[33] Clinical Supervisor was omitted from various documents provided by Private School due to a “clerical error,” however the hierarchy of supervision and Clinical Supervisor’s responsibilities was clearly articulated by Private School Representative. Tr. 76-84.
[34] Tr. 76-84.
[35] Id. at ¶31; Ex. I, J and K; Tr. 103-105.
[36] Ex. N at ¶18.
[37] Ex. D.
[38] Ex. E.
[39] Ex E; Tr. 86-95.
[40] Ex. N at ¶21; Ex. M.
[41] Ex. D at ¶11.
[42] Ex. N at ¶20.
[43] 20 U.S.C. §1400(d)(1)(A).
[44] See 34 C.F.R. §300.13.
[45] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 US 176, 206-207 (1982).
[46] Endrew F. v. Douglas County Sch. Dist. RE-1, 580 US 386 (2017).
[47] 20 U.S.C. § 1415(b)(6)(A).
[48] 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2).
[49] J.L. v. New York City Dept. of Educ., 324 F Supp 3d 455, 467 (SDNY 2018); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed App 12, 14 (2d Cir. 2011).
[50] Walczak v. Florida Union Free Sch. Dist., 142 F3d 119, 132 (2d Cir. 1998), quoting, Tucker v. Bay Shore Union Free Sch. Dist., 873 F2d 563, 567 (2d Cir. 1989).
[51] NY Educ. Law § 4404(1)(c).
[52] See Sch. Comm. of Burlington v. Dept. of Educ., 471 US 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7, 12-15 (1993).
[53] Rowley, 458 US at 189, 199; Grim v Rhinebeck Cent. Sch. Dist., 346 F3d at 377, 379; Walczak v. Florida Union Free Sch. Dist., 142 F3d 119, 132 (2d Cir. 1998) (an “appropriate” education is “not one that provides everything that might be thought desirable by loving parents”).
[54] See generally, 34 CFR §300.320(a) and 8 NYCRR §200.4(d)(2).
[55] See 34 C.F.R. §300.320(a)(1); 8 NYCRR §200.4(d)(2)(i); Tarlowe v. Dept. of Educ., 2008 WL 2736027, at 6 (SDNY July 3, 2008), establishes annual goals related to those needs.
[56] See 34 C.F.R. §300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dept. of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dept. of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[57] See 8 NYCRR §200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[58] Cerra v. Pawling Cent. Sch. Dist., 427 F3d 186, 195 (2d Cir 2005), quoting Walczak, 142 F3d at 130.
[59] Mrs. B. v. Milford Bd. of Educ., 103 F3d 1114, 1120 (2d Cir 1997); see Rowley, 458 US at 192.
[60] Ex. H at ¶33.
[61] Ex. L.
[62] Ex. 1; Ex. 3.
[63] Ex. 1.
[64] Ex. 1 at pg 45-46.
[65] See R.E. v. N.Y.C. Dept. of Educ., 694 F3d 167, citing 20 USC §1415(f)(3)(E)(ii).
[66] See Werner v. Clarkstown Cent. Sch. Dist., 363 F Supp 2d 656, 659 (SDNY 2005).
[67] Ex. 1 at pg 6.
[68] Id. at pg 7.
[69] Id.
[70] See generally Ex. 1.
[71] See M.O. v. N.Y.C. Dept. of Educ., 793 F.3d 236, 244 (2d Cir 2015); see also E.B. v NY City Dept. of Educ., 2016 US Dist LEXIS 90311, at 17 (SDNY 2016).
[72] See Carter, 510 US at 12, 15; Burlington, 471 US at 370.
[73] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F3d 105, 112, 115 (2d Cir. 2007); Walczak, 142 F3d at 129 (2d Cir. 1998).
[74] See Gagliardo, 489 F3d at 112 (“Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.”; Frank G. v. Bd. of Educ. of Hyde Park, 459 F3d 356, 364 (2d Cir 2006).
[75] See Frank G., 459 F3d at 364; see Gagliardo, 489 F3d at 115.
[76] See 20 U.S.C. §1401(29); Educ. Law §4401(1); 34 C.F.R. §300.39(a)(1); 8 NYCRR §200.1(ww); Hardison v. Bd. Of Educ. of the Oneonta City Sch. Dist., 773 F3d 372, 386 (2d Cir 2014).
[77] Gagliardo, 489 F3d at 112, citing Frank G., 459 F3d at 364-65.
[78] IHO Ex. II.
[79] Id.
[80] Ex. H at 25-28.
[81] It is noted that Private School provided the math teacher with internal training.
[82] Ex. P at ¶2, 5, ¶6-8, ¶19-29; Tr. at 62-63.
[83] Ex. P at ¶19-29; Ex. F.
[84] Ex. P at ¶21-24; Tr. at 73-74.
[85] Ex. P at ¶16-17; Ex. F; Ex. O.
[86] Ex. P at ¶30-31.
[87] Gagliardo, 489 F3d at 112.
[88] Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at 6 (SDNY Nov. 20, 2007).
[89] See D.A. v. New York City Dept. of Educ., 769 F Supp 2d 403, 419-20 (SDNY 2011).
[90] Ex. N at ¶9-14; Ex. P at ¶32-34.
[91] Ex. A; Ex. B.
[92] See Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F Supp 2d 403, 406 (SDNY 2011) (Parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”).
[93] Ex. N at ¶20-21; Ex. D. Tr. at 86.
[94] Ex. N at ¶20-21; Ex. D at ¶11; Tr. at 86.
[95] See M.H. v. N.Y.C. Dept. of Educ., 685 F3d 217, 254 (2d Cir. 2012); see also C.F. ex rel. R.F. v. N.Y.C. Dept. of Educ., 746 F3d 68, 82 (2d Cir. 2014).
[96] It was noted at the hearing that this document contained a typographical error for the case number.