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CASE NUMBER: 601509 - 249430
FINDINGS OF FACT AND DECISION
Case Number: 249430
Student’s Name: REDACTED
Home District: REDACTED
Service District: REDACTED
Impartial Hearing Officer: Ginger James
Date of Filing: June 28, 2023
Hearing Requested By: Parent
Dates of Hearing: August 14, 2023, August 17, 2023 and August 31, 2023 Record Close Date: October 11, 2023
Date of Decision: October 30, 2023
Time Sensitive: Yes
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 31, 2023
For the Student:
REDACTED, Esq., Parent’s Attorney
For the New York City Department of Education:
REDACTED, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 14, 2023
For the Student:
REDACTED, Esq., Parent’s Attorney
REDACTED, Parent
For the New York City Department of Education:
REDACTED, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 17, 2023
For the Student:
REDACTED, Esq., Parent’s Attorney
REDACTED, Parent
REDACTED, Academic Director of Private School
For the New York City Department of Education:
REDACTED, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 31, 2023
For the Student:
REDACTED, Esq., Parent’s Attorney
REDACTED, Parent
REDACTED, Teacher at Private School
REDACTED, Primary Therapist at Private School
For the New York City Department of Education:
REDACTED, District Representative
INTRODUCTION
On June 28, 2023, Parent[1] filed a Due Process Complaint (“DPC”) against the New York City Department of Education (“DOE” or “the District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), alleging that the DOE failed to offer Student a free appropriate public education (“FAPE”) for the 2022-2023 school year (Ex. A). Parent alleges that the Committee on Special Education (“CSE”) drafted an Individualized Education Program (“IEP”) that was substantively inappropriate and developed in an improper manner, and that resulted in an improper placement recommendation (“the May 2022 IEP”) (Ex. A-2). Specifically, Parent alleges that the CSE failed to: 1) include a proper statement of Student’s present levels of academic achievement and functional performance (“PLAAFPs”); 2) properly consider the results of an initial evaluation and the most recent evaluation of Student; 3) evaluate Student in all areas of suspected disability;
4) consider the full breadth of Student’s academic, developmental, social/emotional, and functional needs; 5) establish annual goals designed to meet Student’s needs resulting from Student’s disability and to enable them to make progress in the general education curriculum; 6) draft proper management needs; 7) recommend appropriate support to address Student’s social/emotional, executive functioning and attentional challenges; 8) appropriately address Student’s challenges with written expression; 9) address Student’s graphomotor challenges; 10) recommend assistive technology (“AT”); 11) conduct a vocational interview; 12) recommend appropriate transition support; 13) draft post-secondary goals that are appropriately ambitious in light of Student’s circumstances; 14) offer special education for all classes and state the group size for its Special Education Teacher Support Services (“SETSS”) recommendation; and 15) recommend a specialized, therapeutic residential program (Ex. A-2-3). Parent further alleges that after Student was reevaluated by a Neuropsychologist, the CSE reconvened on September 30, 2022 and drafted a new IEP recommending placement in a New York State (“NYS”) approved nonpublic school (“NPS”) (“the September 2022 IEP”) (Ex. A-3). However, the District failed to locate a school to implement the IEP (Ex. A-3). In addition to their allegations regarding the denial of a FAPE, Parent asserts that Private School is an appropriate placement for Student and that equities support their claim for tuition reimbursement for the school year at issue (Ex. A-3).
By way of relief, Parent seeks an award of tuition reimbursement for Student’s attendance at Private School during the 2022-2023 school year and an award of attorney’s fees and expenses (Ex. A-3-4).[2], [3] In light of the foregoing and as more fully discussed below, I find that: the District failed to meet its burden to prove that it offered Student a FAPE for the 2022-2023 school year; Private School offered Student specially designed instruction sufficient to meet Student’s needs; and the equities support Parent’s requested relief. I decline to award attorney’s fees.
PROCEDURAL HISTORY AND BACKGROUND
As of June 28, 2023, the date of the filing of the DPC, Student was [REDACTED] years old and attending Private School to complete their 10th grade studies (Tr. #2 90, 104-105). On May 23, 2022, the CSE classified Student as a Student with Other Health Impairment (“OHI”) (Ex. E-1, 23). On September 30, 2022, the CSE classified Student as a Student with Emotional Disability (Ex. F-1, 33). Student’s current classification is not in dispute.
After the filing, the Resolution Period began. It ended on July 28, 2023, with no formal meeting held (PHC Tr. 3).
On June 29, 2023, I was appointed Impartial Hearing Officer (“IHO”) for this case.
On July 31, 2023, Parent’s Attorney and District Representative (“the Parties”) met with an OATH Settlement Officer for a Settlement Conference and thereafter met with me for a Pre-Hearing Conference (“PHC”).[4] At the PHC, the Parties and I discussed the issues to be addressed, remedies sought, burdens of proof and other matters pertaining to conducting the Due Process Hearing (“DPH”) (PHC Tr. 5-15). I scheduled the DPH for August 14, 2023 for presentation of the District’s case and for August 17, 2023 for presentation of Parent’s case (PHC. Tr. 15-18).
On August 14, 2023, the DPH commenced. After reviewing the issues, remedies sought and burdens of proof, we addressed the exhibits (Tr. #1 28-30). District Representative stated that they would not be presenting any witnesses nor any documentary evidence (Tr. #1 31, 36). Regarding whether they were conceding Prong One, District Representative stated, “[w]e will rest on Prong I, and I’ll allow the evidence to speak for itself” (Tr. #1 31, 36). More specifically, District Representative confirmed that they were not conceding Prong One and asked that I review the “whole of the evidence that is presented . . . particularly to focus on the IEPs in this matter” (Tr. #1 31, 36). District Representative reserved the right to cross-examine witnesses (Tr. #1 31). [5] Parent’s Attorney sought to introduce Exhibits A through S (Tr. #1 31-34). District Representative had no objection to them, and I admitted all exhibits into evidence (Tr. #1 34). District Representative presented an opening statement (Tr. #1 36), followed by Parent’s Attorney (Tr. #1 36-41).
On August 17, 2023, the DPH continued. Parent’s Attorney sought to introduce Exhibit T, a document containing the proposed direct testimony of Academic Director of Private School (“Academic Director”) (Tr. #2 49-50). District Representative #2 had no objection to the exhibit, which I admitted into evidence upon Academic Director’s attestation to its content (Tr. #2 50, 52-53). Academic Director testified through the written direct testimony (Ex. T) and live testimony (Tr. #2 54, 56-86). Parent testified through live testimony (Tr. #2 87-122). At the conclusion of Parent’s testimony, Parent’s Attorney requested a continuance to allow for testimony from Student’s Team Teacher (“Team Teacher”) and Student’s one-to-one therapist (“Primary Therapist”) (Tr. #2 123).[6] Parent’s Attorney also sought additional time to present a document that would provide a breakdown of the costs of the program (Tr. #2 123). District Representative was prepared to present a closing statement, but “underst[oo]d a need for a continuance” in light of the unavailability of the other witnesses (Tr. #2 123). I explained that I believed the document and the two additional witnesses were necessary to ensure the record was clear and that I had sufficient information to issue a decision (Tr. #2 123-125). I granted Parent’s Attorney’s request to extend the compliance date (Tr. #2 125-127), and I scheduled the continuation of the DPH for September 1, 2023 (Tr. #2 125-129).
On August 31, 2023, the Parties appeared before me for the continued DPH.[7] Parent sought to introduce Exhibits U and V (IHO Ex. I-4; Tr. #3 136).[8] District Representative had no objection to them, and I admitted both exhibits into evidence (Tr. #3 136-138). Team Teacher testified through live testimony (Tr. #3 139-170). Primary Therapist testified on direct examination through their affidavit (Ex. U; Tr. #3 172-173), and was subject to cross-examination (Tr. #3 174-183), as well as additional examination (Tr. #3 184-185, 185-190). District Representative presented a closing statement (Tr. #3 192-194), as did Parent’s Attorney (Tr. #3 194-202).
FINDINGS OF FACT
My findings of fact as explained below were made after considering all the admitted documentary evidence as well as affidavit and live testimony from Director and Primary Therapist and live testimony from Parent and Teacher. I found all witnesses credible.
Background
Student is a “bright, curious, kind, compassionate” individual who is interested in cooking, baking, and reading about space and space travel (Tr. #2 90; Ex. C-4; Ex. E-3). Student has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and learning disabilities, and they live with mental wellness challenges, including anxiety, depression, and gender dysmorphia (Tr. #2 90; Ex. C; Ex. E-5).
Student attended pre-kindergarten through 3rd grades at local public schools (Tr. #2 91; Ex. C-4). After Student was diagnosed with ADHD and dysgraphia, Student attended a private school from 4th through 8th grades (Tr. #2 91-92). Student began attending a small public high school for their 9th grade year, which coincided with the beginning of the COVID-19 pandemic (Tr. #2 92).
Student began to exhibit signs of anxiety prior to the pandemic, but the pandemic exacerbated those symptoms (Tr. #2 91; Ex. A-1; Ex. C-2-3; Ex. E-1-2, 5). Toward the beginning of the 2020-2021 school year, their 9th grade year, they acted upon a suicidal ideation (Tr. #2; Ex. A-1; Ex. C-3; Ex. E-1-2, 4). Student received treatment at an inpatient treatment facility, before transitioning to a partial hospitalization program, and then transitioning to an intensive day treatment program (Ex. A-1-2; Ex. E-5). Student tried to finish the school year, but they were unable to and received no credits (Tr. #2 92; Ex. C-3; Ex. E-2, 4).
The 2021-2022 school year, the repetition of their 9th grade studies, started off well (Tr. #2 92; Ex. C-3; Ex. E-2). However, by the second half of the year, when school resumed in person, Student began to have panic attacks and “eventually were so paralyzed by anxiety, they couldn’t get out of the house, they couldn’t get to school many days, [and] they really started to shut down” (Tr. #2 91, 92; Ex. A-1-2; Ex. C-3).
The May 2022 IEP
During this time, on May 23, 2022, the CSE convened in response to Parent’s request for a reevaluation to determine if the District could do “anything more . . . to assist [Student] in managing ADHD symptoms and difficulties writing,” and to address an error on a prior IEP indicating that Student had dyslexia (Ex. E-1, 22, 24; Tr. #2 109). Parent and Student attended the meeting (Ex. E-24-25). The CSE conducted: a Psychoeducational Update Assessment, which included the Behavior Assessment System for Children, 3rd edition, Self-Report of PersonalityAdolescent Version (“BASC-3:SRP-A”); two subtests from the Wechsler Individual Achievement Test, 4th edition (“WIAT-4”), consisting of an Essay Composition and a Spelling Assessment; a Social History Update; and a Level I Vocational Interview with Student (Ex. E-1-3). Parent requested an updated neuropsychological evaluation as one had not been conducted in four years (Ex. E-1, 3). The CSE “agreed to reopen this case and request assistance for a DOE Neuropsychological Evaluation” (Ex. E-3, 24). The CSE also “agreed that [Student] needs special education support services to help them compensate for difficulties focusing, to improve time spent on task [sic], to improve time management and organization skills, [ ] to improve rate of assignment completion . . .[and] to support [Student’s] development of skills in written expression” (Ex. E-3).
In terms of Student’s academic achievement, functional performance and learning characteristics, the CSE determined that Student’s verbal abilities were strong and their ability to organize an essay was similar to that of same-age peers (Ex. E-2). However, their spelling skills were “significantly delayed” and they experienced attentional challenges (Ex. E-2). Regarding Student’s social development, the CSE’s assessment “suggest[ed] that [Student] [was] struggling with clinically significant anxiety, depression and somatic symptoms, as well as attention problems,” that their ticks were exacerbated by social anxiety, and that their struggles were “increasingly affecting their attendance and ability to focus and complete academic tasks” (Ex. E-4; Ex. A-2). They further noted that during the prior school year, Student had been hospitalized for one month due to “depression with suicidal ideation” (Ex. E-4; Ex. A-2).
The CSE classified Student as a Student with OHI (Ex. E-1, 23) and recommended: Integrated CoTeaching (“ICT”) services for Math, English Language Arts (“ELA”), Social Studies and Sciences; SETSS for Math and ELA, each as a group service one period per week; and individual Counseling (“CO”) one time per week for 40 minutes (Tr. #2 109; Ex. E-17, 21, 23). The CSE also recommended use of a laptop computer (Ex. E-5). The CSE listed various management needs, including: frequent teacher check-ins; repetition of information; movement breaks; small group work; access to a laptop with voice-to-text software; provision of extra time; use of checklists and graphic organizers; breaking down of tasks; and receipt of step-by-step strategies (Ex. E-2, 4, 6). They also recommended outreach when Student was absent (Ex. E-4), and they identified transition needs and activities (Ex. E-8, 20). Additionally, the CSE drafted approximately 10 goals for Student (Ex. E-8-16). The Team considered providing related services only but deemed such “inadequate” to address Student’s needs (Ex. E-24). The Team also considered placement in a class with a 15:1 student-to-teacher ratio but deemed such too restrictive (Ex. E-24). The IEP was to be implemented on September 13, 2022 (Ex. E-16-17).
Student’s Placement in a Residential Treatment Program
Student’s mental health continued to deteriorate, and as a result, from June 30, 2022 through August 22, 2022, Student attended Residential Treatment Program located in State [REDACTED] (Tr. #2 92; Ex. C-3-4). Pursuant to their own assessment, Residential Treatment Program diagnosed Student with: Major Depressive Disorder, recurrent, severe without psychotic features; Generalized Anxiety Disorder; ADHD, Unspecified Type; Unspecified Gender Dysphoria; Specific Learning Disorder with Impairment in Written Expression; and Dysgraphia/Developmental Coordination Disorder (Ex. D). Residential Treatment Program recommended that Student be discharged to a long-term treatment program (Tr. #2 94, 121-122).
The July 2022 Neuropsychological Evaluation
The treatment team at Residential Treatment Program also referred Student for an independent neuropsychological evaluation (Ex. C-1). On July 13, 15, and 21, 2022, Independent Neuropsychologist conducted that evaluation (Tr. #2 94-95; Ex. C). Independent Neuropsychologist interviewed Student, Parent and Therapist at Residential Treatment Program (Ex. C-1). Additionally, the doctor conducted approximately 19 assessments to determine Student’s strengths and needs (Ex. C). Independent Neuropsychologist drafted a report documenting their findings and recommendations (“the July 2022 Neuropsychological Evaluation”) (Ex. C).
Independent Neuropsychologist determined that Student’s cognitive abilities are in the “upper half of the average range,” and that Student possesses many strengths (Ex. C-5-6; 13).[9] However, Student exhibits weaknesses ranging from “mild” to “moderate” in areas such as processing speed, academic skills, attention problems, anxiety and depression (Ex. C-5-12; 14), and exhibits “severe” deficits in fine motor dexterity (Ex. C-6-7; 14). Independent Neuropsychologist diagnosed Student with: ADHD, Combined Type; Dysgraphia/Developmental Coordination Disorder; Specific Learning Disorder with Impairment in Math Fluency; Specific Learning Disorder with Impairment in Written Expression; Generalized Anxiety Disorder; and Major Depressive Disorder, recurrent, moderate (Ex. C-14-16). Independent Neuropsychologist specifically noted that Student may struggle with executive functioning skills, including organizing their thoughts, organizing or structuring complex information and staying on top of assignments (Ex. C-14-15).
Independent Neuropsychologist made various recommendations broken down into the following categories: General Considerations; Personal Development; Cognitive; Attention/Retention; Executive Skills; Writing/Fine Motor; Math; and Tests and Evaluations (Ex. C-16-21). Independent Neuropsychologist recommended a “small, therapeutic, residential program” that can address Student’s social, emotional and academic needs (Tr. #2 95; Ex. C-16). The doctor further recommended intensive psychotherapy, which should consist of: a Dialectical Behavioral Therapy (“DBT”) approach; a focus on “relational treatment” to help social engagement; therapy to increase perceptual awareness; role plays and perspective taking; identifying automatic thoughts and assumptions; medication management; and family and group sessions (Ex. C-17-18). To address academic and cognitive functioning deficits, Independent Neuropsychologist recommended tools, strategies and accommodations such as: providing repetition of directions and periodic breaks; learning effective note-taking strategies; being given a copy of notes; breaking down of tasks; chunking of information; offering modifications to homework; using adaptive equipment; learning to prioritize tasks; developing organizational strategies; and using coping mechanisms for when Student feels overwhelmed (Ex. C-18-21).
Parent provided the July 2022 Neuropsychological Evaluation to both Private School and the DOE (Tr. #2 95; Ex. A-2, 3).
Enrollment in Private School
In addition to obtaining the July 2022 Neuropsychological Evaluation, Parent engaged the services of an educational consultant who proposed “a couple of programs” for Student (Tr. #2 92-93). Parent researched the programs and determined that Private School would be appropriate, in part, because they had “a real commitment to respect for kids on the gender expressive spectrum” (Tr. #2 93). Parent felt that Private School could meet Student’s therapeutic needs because they offered individual therapy, intensive group therapy, family therapy, a supportive living environment and a supportive school environment (Tr. #2 93, 96). Based on the recommendation from the educational consultant, Parent also felt Private School could meet Student’s academic needs (Tr. #2 93, 96). Private School is located in State Y (Ex. T-1; Ex. U-1; Ex. D-1; Ex. H).
On August 15, 2022, Parent signed an enrollment contract with Private School (Tr. #2 108; Ex. I).
Provision of Ten Day Notice
The same day, August 15, 2022, Parent, through their attorney, sent the District a Ten Day Notice (“TDN”) (Ex. B). In their letter, Parent stated that the District failed to develop a proper IEP for the 2022-2023 school year and delineated each of their concerns with the May 2022 IEP (Ex. B-1-3). Parent informed the District that until it offered an appropriate placement or cured the procedural and substantive defects they had identified, Parent would unilaterally enroll Student in Private School and seek funding for that placement (Ex. B-1, 2).
On August 17, 2022, a member of the Special Education Unit- Office of General Counsel for the DOE responded to the TDN, stating, inter alia, that the claim was “not appropriate for settlement” and that Parent would need to file a DPC to seek District funding for the placement (Ex. Q). Student began attending Private School on August 22, 2022 (Ex. T-3; Tr. #2 56, 57; 96-97; Ex. U-3; Tr. #3 142; Ex. P-1; Ex. S-1, 2).
The September 2022 IEP
On September 30, 2022, the CSE reconvened in response to the deterioration in Student’s wellbeing and to consider the results of the July 2022 Neuropsychological Evaluation (Tr. #2 109-110; Ex. F-34). Parent attended the meeting (Ex. F-34). The CSE incorporated much of the independent evaluation into the IEP (Ex. F-1-14). The CSE changed Student’s classification to a Student with Emotional Disability (Ex. F-1, 33). The CSE recommended placement in a Special Class with a ratio of 15:1 as an “interim placement” to commence on October 18, 2022, to be followed by placement in a Special Class in a New York State Education Department (“NYSED”)-Approved Residential NPS (Tr. #2 109, 110; Ex. F-27, 31, 32, 33; Ex. A-3). The CSE also recommended CO as an individual service and as a group service, each one time per week for 45 minutes (Ex. F-27, 33). The CSE identified the same management needs (compare Ex. F-16 with Ex. E-6) and retained the same goals as delineated on the May 2022 IEP (compare Ex. F-18-26 with Ex. E-8-16). The CSE rejected other placement options because Student required “a more intense level of support” at the time (Ex. F-34).
DOE’s Efforts to Locate a NPS for Student for the 2022-2023 School Year
Parent agreed with the placement recommendation contained in the September 2022 IEP (Tr. #2 110). However, the DOE failed to recommend a specific residential school to implement the IEP (Tr. #2 110; Ex. A-3). On November 4, 2022, DOE Education Administrator from the Central Based Support Team (“CBST”) emailed Parent to confirm their address and phone numbers (Ex. G). Between approximately November 2022 and January 2023, Parent had “in depth conversations” with three to four schools the DOE had recommended, but none of the schools “seem[ed] to have the complete package that [Student] needed to be successful” (Tr. #2 120-121).
The Cost of Private School
The total cost of tuition from August 22, 2022 through June 20, 2023, less any award of scholarship, financial aid or other reduced tuition amount, was $170,925 broken down as follows: $550 per day from August 22, 2022 through December 31, 2022 and $575 per day from January 1, 2023 through June 20, 2023 (Ex. I; Ex. P).[10] Parent also paid an Enrollment Fee of $2,000 (Ex. P). As of the time of the hearing, Parent’s insurance covered $117,051.63 (Tr. #2 108; Ex. P). Parent seeks funding for the portion that was not covered by insurance, a total of $55,873.37 (Tr. #2 108-109; see also Tr. #1 38-39, 41; Tr. #3 201-202). [11]
LEGAL STANDARDS AND FRAMEWORK
Impartial Hearing Officers (“IHOs”) are tasked with determining whether a student received a free appropriate public education (“FAPE”). See 20 U.S.C. § 1415(f)(3)(E)(i); 8 NYCRR § 200.5(j)(4)(i). That determination must be made on substantive grounds and with regard to the meeting of certain procedural requirements. Id. In guiding their decision, IHOs are bound by two purposes of the IDEA: (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and to prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and of their parents are protected. See 20 U.S.C. § 1400(d)(1)(A),(B); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 (2009); Bd. of Educ. of Hendrick Hudson Cent.
Sch. Dist. v. Rowley, 458 U.S. 176, 206-207 (1982).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-207; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-190 (2d Cir. 2012); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012). More specifically, the educational program must be “reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 137 S. Ct. 988, 1001 (2017).
Regarding procedural requirements, to deprive a student of a FAPE, the procedural inadequacies must have impeded the student’s right to a FAPE, significantly impeded the parent’s opportunity to participate in the decision-making process or deprived the student of educational benefits. See 20 U.S.C. §1415(f)(3)(E)(ii); 34 CFR § 300.513(a)(2) and 8 NYCRR § 200.5(j)(4)(ii).
Regarding the substantive requirements, as the words in FAPE indicate, students are entitled to an "appropriate" education, "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, which is at the center of the analysis, must address the “unique circumstances of the child for whom it was created." Endrew F., 137 S. Ct. at 1001. It must also be “likely to produce progress, not regression.” See Cerra v. Pawling Cent. Sch. Dist, 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130 (citations omitted).
Accordingly, an IEP must include a statement of the student's present levels of academic achievement and functional performance, establish annual goals designed to meet the student's needs resulting from the student's disability and enable the student to make progress in the general education curriculum, and must provide appropriate special education and services. See generally 34 CFR § 300.320(a) and 8 NYCRR § 200.4(d)(2). The IEP must be developed in consideration of the student’s: “(1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs.” Brock v. N.Y. City Dep’t of Educ., 2015 WL 1516602, 2015 U.S. Dist. LEXIS 44254, 3 (S.D.N.Y. 2015), quoting M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d at 224 (further citation omitted). Finally, the student's recommended program must be provided in the least restrictive environment (“LRE”). See 20
U.S.C. § 1412(a)(5)(A); 34 CFR § 300.114(a)(2)(i); 34 CFR § 300.116(a)(2); 8 NYCRR
§ 200.1(cc); 8 NYCRR § 200.6(a)(1). Overview of Unilateral Placement and Tuition Reimbursement Analysis Decisions concerning tuition reimbursement matters must focus on the seminal United States Supreme Court cases of Sch. Comm. of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359 (1985) and Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993) and their progeny. Read together, the seminal cases produced what is commonly referred to as the “Burlington/Carter” test which establishes the framework for inquiry. Pursuant to the test, parents who unilaterally place their children in private school will be entitled to reimbursement if (1) the school district’s proposed placement was inadequate or inappropriate, (2) the parent’s alternative private placement is appropriate to meet the student’s needs, and (3) equitable considerations support the claim. See Sch. Comm. of Burlington, Mass. V. Dep’t of Educ. of Mass., 471 U.S. 359, 369-370 (1985) and Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15-16 (1993). See also Brock, 2015 WL 1516602, 2015 U.S. Dist. LEXIS 44254, 14 quoting E.M. v. N.Y.C. Dep’t of Educ., 758 F.3d 442, 451 (2d Cir 2014).
Generally, the DOE bears the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings. However, in a tuition reimbursement matter, the parent bears the burden of proof, including the burdens of persuasion and production, solely on the issue of the appropriateness of the placement. See NYS Educ Law § 4401(1)(c); see R.E. v. New York City Dep’t of Educ., 694 F.3d at 184-185. Accordingly, in a tuition reimbursement matter, the DOE bears the burden of proof on what is commonly referred to as Prong One, the provision of a FAPE. Should it be determined that a FAPE was not provided, the burden then shifts to the parent to prove what is commonly referred to as Prong Two, the appropriateness of the parentally selected placement. Thereafter a balancing of the equities must be conducted with the DOE bearing the burden of proof on Prong Three. Id.
FINDINGS OF FACT AND DECISION
PRONG ONE- THE PROVISION OF A FAPE
I find that the District failed to meet its burden to prove that it offered Student a FAPE for the 2022-2023 school year. District Representative did not concede that the District failed to provide Student a FAPE for the 2022-2023 school year nor did they explain with any particularity how the District provided a FAPE to Student. At the outset of the DPH, District Representative stated, “[w]e will rest on Prong I, and I’ll allow the evidence to speak for itself” (Tr. #1 31, 36). When asked for further clarification, District Representative confirmed that they were not conceding Prong One, and asked that I review the “whole of the evidence that is presented . . . particularly to focus on the IEPs in this matter” (Tr. #1 31, 36), referring to the May 2022 and the September 2022 IEPs (Ex. E; Ex. F). District Representative elected not to present any witnesses or documentary evidence (Tr. #1 31, 36). Further, in their opening and closing statements, District Representative failed to explain how the District provided a FAPE to Student or how the documents prove such. Instead, they used their statements to reiterate that they were not presenting witnesses or documentary evidence in support of their Prong One burden (Tr. #1 36; Tr. #3 192).
Nonetheless, upon reviewing the documents and the testimony, I find that the District did not offer Student a FAPE for the 2022-2023 school year. Parent filed a DPC alleging that the May 2022 IEP was substantively inappropriate, developed in an improper manner, and resulted in an improper placement recommendation. In support of their claims, Parent alleged approximately 15 specific concerns (Ex. A-2-3). The District failed to address any of these claims. The lack of any testimony from the CSE team members to explain what evaluations or information they relied upon in drafting the May 2022 IEP and to explain how the programs and services they recommended were appropriate, sufficient and/or adequate to provide Student with a FAPE leave me no choice but to find the District failed to offer Student a FAPE for the 2022-2023 school year. The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F., 137 S. Ct. at 1002. Here, by electing not to present a case, the District offered absolutely no explanation, let alone a cogent and responsive explanation, for the CSE’s program and placement recommendations contained in the May 2022 IEP. Additionally, the District failed to address Parent’s claims regarding the September 2022 IEP. In their DPC, Parent alleged that after Student was reevaluated by a Neuropsychologist, the CSE reconvened and drafted a new IEP recommending placement in a NYS-approved NPS, but the District failed to locate an actual school to implement the IEP (Ex. A-3). Parent testified that they agreed with this placement recommendation (Tr. #2 110). Notably, between approximately November 2022 and January 2023, Parent had “in depth conversations” with three to four schools the DOE had recommended, but none of the schools “seem[ed] to have the complete package that [Student] needed to be successful” (Tr. #2 120-121). It is the District’s responsibility to implement a student’s IEP. See 8 NYCRR § 200.4(e)(7). Further, a parent is entitled to a presumption as to the truth of the asserted facts underlying their claims that are contained in the documentary evidence and testimony to the extent they are credible and not contradicted by the hearing record. The District presented no evidence to contradict Parent’s evidence and testimony. I find that the District failed to provide Student a FAPE for the 2022-2023 school year by failing to offer Student a school that could implement the September 2022 IEP.
Accordingly, I proceed to the appropriateness of the unilateral placement, Prong Two.
PRONG TWO- APPROPRIATENESS OF PARENT’S PLACEMENT
I find that Parent met their burden of proving by a preponderance of the evidence that their unilateral placement of Student at Private School was appropriate. In support of their position, Parent provided numerous exhibits, including the Private School Program Description (Ex. H), the Financial Agreement (Ex. I), three Progress Reports (Ex. J; Ex. K; Ex. N), two Mid Term Reports (Ex. L; Ex. O), a Report Card (Ex. M), a Private School Tuition Affidavit (Ex. P), a Class Schedule (Ex. R) and a Private School Treatment Plan (Ex. S).
The record also includes testimony from four witnesses– Parent, Academic Director, Primary Therapist and Team Teacher. Parent testified generally about Student’s needs, how Private School addressed them and Student’s progress at Private School (see generally Tr. #2 92-118). Academic Director and Team Teacher testified about Private School in general and, specifically, how it addressed Student’s needs as well as Student’s progress (Ex. T; Tr. #2 54, 56-86; Tr. #3 139-170). Primary Therapist’s testimony focused on Student’s therapeutic needs, their work with Student and Parent, and how that work benefitted Student (Ex. U; Tr. #3 172-190).
I find that each staff member who testified was qualified to speak about Student’s needs and how they and Private School assisted Student. Academic Director has been employed by Private School for five years (Ex. T-1). Among their duties as Academic Director, they run Private School on a daily basis, oversee the teachers, conduct professional development, and assist with mentoring and classroom development (Tr. #2 68). Academic Director is a licensed special education teacher and taught Student’s Math and Agricultural Science classes during the 2022-2023 school year (Ex. T-1, 2; Tr. #2 56-57). Team Teacher has been employed by Private School since February 2020 and teaches Science to all students (Tr. #3 140). Team Teacher was assigned to Student’s team, “the Denali Team,” and taught Student Chemistry for two terms (Tr. #3 140-142, 159, 161-162). Primary Therapist is a Clinical Mental Health Counselor (“CMHC”) who served as Student’s primary therapist during the 2022-2023 school year (Ex. U-1).
I found all witnesses credible.
Determining Appropriateness
When a parent seeks tuition reimbursement after unilaterally placing their child in a private program, the parent must demonstrate that the program is appropriate to meet their child’s needs. A.D. ex rel. E.D. v. Bd. of Educ. Of City Sch. Dist. Of New York, 690 F.Supp.2d 193, 206 (S.D.N.Y. 2010). The issue is whether the placement is “reasonably calculated to enable the child to receive educational benefits.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir 2017), citing Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d. Cir 2006). The “unilateral private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115 quoting Frank G., 459 F.3d at 365.
The Parent must prove appropriateness by a preponderance of the evidence. See NYS Educ Law § 4401(1)(c); see R.E. v. New York City Dep't of Educ., 694 F.3d at 184-185. Among the considerations are whether the private placement is likely to produce progress, not regression. See Gagliardo, 489 F.3d at 112, quoting Walczak, 142 F.3d at 130. Moreover, as specifically noted in Frank G.,
No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specifically 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.
Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-365.
Overview of The Private School Program
Examining the totality of the evidence presented, I find that Private School provided educational instruction specifically designed to meet the unique needs of this Student, supported by services as were necessary to permit this Student to benefit from the instruction.
Private School is a Residential Treatment Center (“RTC”) with an on-site Therapeutic High School (Ex. T-1; Ex. H-1). The School serves a co-ed population ranging from age 13 to age 18 in grades
8 through 12 (Ex. T-1, 2; Ex. U-1; Ex. H-1, 2). The intensive, therapeutic program includes college preparatory academics, therapeutic recreation activities and individual, group and family psychotherapy (Ex. T-1-2; Ex. U-1, 3; Ex. Tr. #2 73). The majority of students test within the “Average” range for IQ and academic skills (Ex. T-1; Tr. #2 68-69). Most students live with “depression, anxiety, attentional challenges, mood disorders, negative relationships, academic difficulties, history of trauma, substance use, self-injurious behaviors, issues surrounding identity, impaired daily functioning and[/or] other associated psychobehavioral concerns” (Ex. H-1; Tr. #2 72-73; Tr. #3 159-160). Some students have also been diagnosed with specific, mild to moderate learning disabilities (Ex. T-1).
Private School is accredited through the Joint Commission, Northwest Accreditation Commission/AdvancED and the State [REDACTED] Department of Human Services (Ex. H-2). The curriculum is based on State [REDACTED] Common Core standards, but each teacher develops their own curriculum (Ex. T-2). Private School offers all core classes, including courses in English, Math, Social Studies, Sciences and Spanish (Ex. T-2; Ex. U-2). All teachers hold a bachelor’s degree in their subject area, and all have a valid State [REDACTED] teaching license or are enrolled in a program to obtain one (Ex. T-2, 3; Tr. #2 63, 64, 73; Tr. #3 140; Ex. H-1). There are three special education teachers at Private School, including Academic Director (Tr. #2 63). Teachers are given opportunities for professional development, including classes focused on working with students with mental wellness needs (Ex. T-3; Tr. #3 157-158), and they meet weekly with Academic Director who helps them work with students with special education needs (Tr. #3 158, 166-167).
Students are usually referred by an Education Consultant or School District (Ex. T-1). The Admissions Department reviews the file, as well as the Clinal Director, Medical Director, and if needed, the Academic Director and/or Special Education Coordinator (Ex. T- 1; Tr. #2 70-71; Tr. #3 158-159). Private School reviews achievement and cognitive testing scores and documents such as IEPs. They also review recommended accommodations and services to ensure they can provide those recommendations (Tr. #2 69-70).
Once a student is enrolled, the Special Education/IEP Coordinator manages and tracks IEP goals and accommodations on the IEP, attends IEP meetings and gathers information from classroom teachers (Ex. T-2; Tr. #2 70).
To address clinical needs, Private School offers individualized treatment using Systemic, Relational and Social Learning theories (Ex. U- 2; Ex. H-1). Clinical care relies upon evidencedbased practices (Ex. U- 2; Ex. H-1). Individual, group and family treatment are administered by masters or doctoral level clinicians (Ex. U- 2; Ex. H-1). Clinicians provide over 20 hours of weekly clinical/therapeutic services and possess expertise in ADHD, executive functioning challenges, trauma-focused Cognitive Behavioral Therapy (“CBT”) and DBT (Ex. U- 2; Ex. H-1). Experienced therapists also work with students struggling with identity, gender neutral status and transgender status (Ex. U- 2; Tr. 73; Ex. H-1). Private School offers parents quarterly on-site Parent Seminars (Ex. H-1).
Private School offers related services such as Speech Language Therapy (“SLT”), Occupational Therapy (“OT”) and nutrition services (Ex. T-2).
Additionally, medical/psychiatric services are on-site and available to all students (Ex. T-2; Ex. U-1; Ex. H-1). The Medical Team consists of various practitioners and staff, including a board Certified General and Child/Adolescent Psychiatrist who is also a member of the World Professional Association for Transgender Health (“WPATH”) (Ex. H-1). These services include initial assessments, weekly follow up appointments and medication management (Ex. H-1). The Medical Team participates in weekly discussions of students and coordinates with other members of the multidisciplinary team (Ex. H-1).
Private School maintains a staff-to-student ratio of 5:1 (Tr. #2 60, 62). Class sizes range from 6 to 12 students (Ex. T-2; Ex. H-1), and students are grouped based upon what classes they need to take, their grade level and their age (Tr. #3 63-64). All students are enrolled in an “Advisory” period, which provides an opportunity for students to meet with their Team Teacher or other teachers for 1:1 assistance (Tr. #2 73, 74; Tr. #3 159, 168). Each day, students take three, one-hour classes (Tr. #2 73; Tr. #3 159) and have a study hall in the evening (Tr. #2 73-74). Students take different courses throughout the year (Tr. #2 75, 77; Tr. #3 159). Students are also part of “communities” through which students are assigned responsibilities and chores (Tr. #2 60; Ex. U-2). Students also have the opportunity to join various clubs, including the LGBTQ club (Ex. H-1).
Staff meet weekly to discuss students and the functioning of the students’ teams, as well as to address students’ requests to change levels (Ex. T-2; Tr. #2 71). All students enter on the “Orientation Level” but have opportunities to move to other levels which will add responsibilities and privileges (Tr. #2 71-72). Students’ progress is measured every three to four weeks (Ex. T-2; Tr. #2 76).
Students are further supported 24 hours per day by “Milieu Staff” who are comprised of the residential/dorm staff (Tr. #2 59-60; Tr. #3 163, 176). They are the “biggest piece” in terms of providing support to students (Tr. #3 176). They are trained in DBT, de-escalation techniques, coping mechanisms and life skills coaching (Tr. #3 162-163, 176-177). They wake students up, help them get their medication, assist them with chores, and help them get to groups and programs (Tr. #2 60; Tr. #3 163, 176). Milieu Staff maintain a presence in the hallways and classrooms, perform safety checks, and attend group sessions with students (Ex. T-4; Tr. #2 60; Tr. #3 163). They do not provide formal education or formal therapy (Tr. #2 61-62; Tr. 3 177).
The Private School Identified This Student’s Specific Educational Needs
I find that Private School identified this Student’s specific educational needs.
Student began attending Private School in August 2022 (Ex. T-3; Tr. #2 56, 57; 96-97; Ex. U-3; Tr. #3 142; Ex. P-1; Ex. S-1, 2). A risk assessment was conducted within 24 hours of Student’s admission (Tr. #3 185). To develop a “Master Treatment Plan,” Primary Therapist spoke with Student and Parent (Tr. #2 58-59; Tr. #3 183; Ex. S). Initial treatment objectives included: improving and maintaining Student’s safety; improving mood stability; improving their engagement and completion of expected daily activities; improving skills impacting their interpersonal relationships and boundaries; and gaining treatment alliance (Ex. U-3; Ex. S). Student was placed on the “Denali Team” with 7 to 12 other students (Tr. #3 141-142). Private School decided to place Student on this team based on which therapist would best meet Student’s needs and upon group dynamics (Tr. #3 142, 160).
Approximately two weeks after Student’s admission, Private School conducted an initial educational assessment (Tr. #3 150). Team Teacher and others reviewed Student’s previous testing, previous school history and information from Parent and past teachers to determine Student’s academic status (Ex. T-3; Tr. #2 58-59; Tr. #3 148, 150). At the time, Student was behind in credits and struggling with a wide range of behavioral and academic issues (Ex. U-3; Tr. #3 150-151). Student was “extremely anxious,” had a difficult time engaging in interpersonal conversations and group activities, and was overwhelmed by even leaving their dorm (Tr. #2 83; Tr. #3 142-143, 150-151). Student also had dysgraphia, which made it difficult to complete work, and executive functioning deficits that made it hard for Student to determine steps to solve problems (Tr. #3 143, 150-151).
Private School developed academic goals and objectives to build upon Student’s skills and to address specific concerns (Ex. T-3, 4). Although the academic goals were not memorialized (Tr. #2 81), generally, Private School looked at attendance, participation, grades and progress reports (Tr. #2 81). Student participated in setting goals, including those related to frequency of social interaction, joining clubs and connecting with peers through social media (Ex. U-4).
To ensure Student’s needs were continually met, Team Teacher communicated with Student’s therapists regularly (Tr. #3 154).
The Private School Addressed this Student’s Specific Educational Needs
I find that Private School addressed this Student’s educational needs.
Student’s schedule generally consisted of breakfast, kick-off meeting/meditation, health and fitness class, specialty group, meetings, lunch, academic classes, clubs/free time, milieu group/team building group, dinner, study hall, free time, wrap-up meditation and quiet time (Ex. T-3; Ex. U-4; Ex. R). Their classes generally consisted of eight to ten students (Tr. #2 62), and there was always one teacher and one Milieu Staff member in class (Tr. #2 62). Sometimes an assistant teacher was also in the classroom (Tr. #2 62). Student’s academic program was “completely integrated” with the therapeutic and clinical programs (Ex. T-3). Student’s multidisciplinary team consisted of a psychiatric provider, mental health therapists, social workers, behavioral specialists, an on-site special educations/team teacher, and residential and outdoor behavior specialists (Ex. T-3). To assist Student with anxiety surrounding attending school, Private School created a support system (Ex. U-4; Tr. #2 84). Milieu Staff helped Student become comfortable with their team and others (Tr. #2 84; Tr. #3 143-144). Thereafter, Team Teacher helped Student feel safe and comfortable in their classroom (Tr. #2 84; Tr. #3 144). Team Teacher also talked to Student about any issues in the dorms (Tr. #3 144). Therapy also addressed this issue (Tr. #2 84).
In class, the staffing ratio enabled Student to receive individualized support throughout the day (Ex. T-3) and “w[as] instrumental” to Student’s success (Ex. T-6). The small setting allowed Student to manage their anxiety and learn skills at their own pace (Ex. T-4). They could receive immediate feedback, explicit and repeated instruction, and guided and individualized practice to master skills (Ex. T-4). Team Teacher helped monitor Student’s academics, track assignments and provide overall accountability (Ex. T-3).
Private School also offered specialized, individualized instruction to Student (Ex. T-3, 4). For example, each day, Advisory allowed for Student to work with other teachers or to work 1:1 with Team Teacher prior to the start of classes (Tr. #3 154, 168). Team Teacher helped Student address executive functioning skills such as by breaking down problems into steps and encouraging Student to use a planner for organization (Ex. T-4; Tr. #2 84-85, 103; Tr. #3 144-145). Advisory also supported Student by giving them extra time in the school building to work on assignments (Tr. #3 155, 156).
Private School taught Student practical study skills (Ex. T-3). These skills included critical thinking, organization, note taking, setting goals, monitoring progress, recognizing priorities, maximizing use of time, discovering confidence and envisioning success (Ex. T-3). Additionally, Private School customized or modified Student’s assignments to meet Student’s needs (Ex. T-3, 5; Tr. #3 151). For example, Academic Director would decrease the number of math problems Student needed to complete for homework once Academic Director saw that Student had mastered a skill (Tr. #2 82). Team Teacher would break down steps with Student, would give Student only a couple of problems to work through at a time, and would shorten assignments while ensuring that standards were still met (Tr. #3 151). Decreasing the number of problems to complete also left more room on the paper for Student to complete the assignment and made them feel less overwhelmed (Tr. #3 151-152).
Further, all students were provided Chromebooks, which aided Student’s struggles with dysgraphia (Tr. #2 84; Tr. #3 146-147). When Teacher implemented Chromebook assignments “you could almost visually see, like, the stress relief from [Student’s] shoulders” (Tr. #3 151). Where possible, teachers let Student use it for assignments, such as for math assignments (Tr. #2 84; Tr. #3 147). Team Teacher also modified assignments that were to be done solely by hand so Student could do them on the computer (Tr. #3 151).
Additional accommodations were provided as needed (Ex. T-5). For example, Student was anxious around testing, so Academic Director would let them retake quizzes and tests (Ex. T-5; Tr. #2 82-83). Academic Director would also allow Student to turn in assignments late without penalty (Ex. T-5). In Chemistry, Team Teacher provided guided notes to assist with note taking and specialty notes to help Student learn how to complete multi-step problems (Tr. #3 145). Team Teacher provided these notes until Student no longer needed them (Tr. #3 145). To assist with Chemistry, Team Teacher worked with Student 1:1 in Advisory or outside of school hours to help Student feel less anxious and overwhelmed (Tr. #3 147-148). They would work on the math needed for science and address the step-by-step process (Tr. #3 148).
Private School also worked with student’s learning style, such as by using direct questioning, which helped Student come out of their shell and contribute in class (Ex. T-6; Tr. #2 65). In general, Private School was careful to give Student extra processing time, to not call upon Student without warning, and to continually check for understanding (Ex. T-3, 4; Tr. #2 81-82).
Private School offered Student many other tools and supports. Student benefitted from: visual and verbal cues; redirection; refocusing; chunking of information; breaking down of directions; frequent teacher check-ins; explicit instruction; repetition; assistance with time management; assistance with organization; additional time to learn new information; preferred seating; encouragement; previewing and reviewing work; checklists; and effective note-taking strategies (Ex. T-4, 5, 6; Ex. U-6; Tr. #2 104, 112; Tr. #3 187-188). To assist with writing, Private School used models, templates, graphic organizers, sentence starters and voice typing (Ex. T-5, 6). Student also benefitted from the use of a planner. Student no longer missed assignments and seemed to feel less overwhelmed by their workload (Tr. #3 146). The guided notes helped Student “stay on track and focused” (Tr. #3 146). Furthermore, Student benefitted from being able to catch up on work during study halls in the dorms (Tr. #3 155), from the support the Milieu Staff provided with homework (Tr. # 163-164), and from the support the Milieu Staff provided when Student struggled with anxiety or mood (Tr. #3 176).
Throughout the year, Private School modified how it addressed Student’s needs (Tr. #3 160-161). For example, prior to using guided notes in Chemistry, Team Teacher had Student take notes on their computer but found that doing so was too overwhelming (Tr. #3 161). Similarly, Student was overwhelmed by using a planner, so Team Teacher worked with Student on how to use it (Tr. #3 161). Private School also initially gave Student frequent breaks during school, but when they saw Student using them to avoid school, they reduced those breaks (Tr. #3 161).
To further address Student’s mental health struggles, Primary Therapist provided individual sessions to Student as well as family sessions (Ex. U-3, 4; Tr. #3 174). Private School administered Individual Therapy 60 minutes per week (Ex. U-4). Individual Therapy focused on goals identified in the Master Plan and on Student’s needs, emotions, coping skills and life skills (Ex. U-4; Tr. #3 174-175). Primary Therapist used role plays to help Student improve conversation and perspective taking skills (Ex. U-4).
Private School administered Family Therapy 60 minutes per week (Tr. #2 99; Ex. U-4, 5, 6). Family Therapy sessions started with parent coaching and support, and then when Student joined the sessions, they all discussed family dynamics (Tr. #2 99; Tr. #3 175). Family Therapy supported Student’s education because their mental wellness concerns created conflict in the family, which furthered their own mental health struggles (Tr. #3 184).
Private School administered Group Therapy four times per week for 90 minutes each session (Ex. U-4). Goals in Group Therapy included learning to attend to and interpret social signals and messages from others and how to respond in meaningful, reciprocal and empathic ways (Ex. U-5). Group Therapy helped Student learn to communicate their needs and to feel supported, which helped them academically and otherwise (Tr. #3 180-181).
These therapies helped Student in many ways, such as increasing their “window of tolerance” for identifying and processing emotions (Ex. U-4), exploring and verbalizing cognitions and core beliefs that impact their self-esteem and relationships (Ex. U-5), and helping with Student’s assertiveness and ability to self-advocate (Ex. U-5). Therapies also decreased Student’s anxiety around COVID-19 (Ex. U-5).
Student learned to use various skills through therapy. For example, through DBT Student used the “TIPP Skill” (Temperature, Intense Exercise. Paced Breathing and Impaired Muscle Relaxation (Tr. #3 189) which helps with distress tolerance (Tr. #3 188-189). Student learned to “check the facts” to better understand what was really going on and not what was in their head (Tr. #3 189). CBT helped Student challenge negative beliefs and feelings they held about themselves, others or the world (Ex. U-4). Student also practiced effective communication skills through “Istatements,” eye contact, reflective/active listening and validation (Ex. U-4).
Further, Private School addressed Student’ social needs (Ex. U-5). Private School needed to be “deliberate and systematic” so as not to push Student beyond their tolerable limits (Ex. U-5).
Student also participated in various groups such as a “process group,” where they talked about a particular subject or their emotions and got support from their team, mentors and therapists (Tr. #3 177), a “problem-solving group” (Tr. 178), a DBT group (Ex. U-4; Tr. #3 178), and a life skills group (Tr. #3 178-179).
Finally, Parent was an active in Student’s program at Private School. As noted, they attended weekly family therapy sessions (Tr. #2 97, 99). Parent also attended an Orientation Program (Tr. #2 97), took a DBT class and an “intensive” multi-day seminar (Tr. #2 97), attended a parent support group (Tr. #2 97; Ex. U-6), and attended Parent Pathways, which were extended weekends that met quarterly for parent-focused therapy work (Ex. U-6).
I find that all of these supports and tools addressed this Student’s educational needs.
I further note that many of the tools Private School employed were suggested by the CSE at the September 2022 IEP meeting. For example, the CSE recommended: use of a laptop computer; frequent teacher check-ins; repetition of information; movement breaks; small group work; access to a laptop with voice-to-text software; provision of extra time; use of checklists and graphic organizers; breaking down of tasks; and receipt of step-by-step strategies (Ex. E-2, 4, 5, 6). They also recommended outreach when Student was absent (Ex. E-4). Additionally, I find that Private School utilized many of the therapies recommended by Independent Neuropsychologist (Ex. C-17-18), as well as the tools, strategies and accommodations they recommended, such as: providing repetition of directions and periodic breaks; learning effective note-taking strategies; being given a copy of notes; breaking down of tasks; chunking of information; offering modifications to homework; using adaptive equipment; learning to prioritize tasks; developing organizational strategies; and using coping mechanisms for when Student feels overwhelmed (Ex. C-18-21).
Student’s Progress
I find that Student made progress at Private School.
Student’s anxiety around attending school decreased, thereby enabling Student to access their education. One of the “biggest concerns” Private School had when Student enrolled was how to help Student manage anxiety in school through positive peer and adult interactions (Tr. #3 148-149). Advisory was a big part of helping Student achieve this goal (Tr. #3 149). Milieu Staff were also helpful to Student achieving this goal because they helped Student create healthy relationships (Tr. 149-150). Additionally, Group Therapy helped Student communicate with peers (Tr. #3 149).
Further, Student’s attendance increased during the school year. For example, in the beginning of the school year, Student’s attendance in Advisory was “a little bit up and down” (Tr. #3 166). Attendance in Chemistry became more consistent as the year progressed (Tr. #3 166), and Academic Director believed their attendance was “great” in their last four or five months of the year (Tr. #2 83). Parent understood that Student missed some days, but not to the extent that they had missed school previously (Tr. #2 113). Student’s grades also improved during their enrollment (Tr. #3 155). As Student became more confident and worked through their mental wellness struggles, Student improved academically (Tr. #2 106-107, 117; Tr. #3 154). As Student began achieving academically, it spurred them to want to continue (Tr. #3 155). Although Student had to retake an English class (Tr. #2 105-106, 118-120), overall they made academic progress (Tr. #2 106, 111-112).[12] Student made Honor Roll one semester (Tr. #3 155), and they received a 3.12 GPA when they left Private School (Ex. T-6).[13]
Generally, during Student’s time at Private School, Team Teacher and others “learned who [Student] was” and they “saw a different person than who originally admitted” (Tr. #3 152, 156-157). Initially, they were “very quiet,” “oftentimes avoided school or kept their head down on the desk” (Ex. T-6; Tr. #2 65; Tr. #3 152). If they did not know how to do something, they would simply not turn in the assignment (Tr. #3 153). As Student became more comfortable, they participated in class discussions (Tr. #2 65). They opened up, engaged more with peers, joked with peers, had conversations with teachers, and learned to advocate for their needs, such as by asking for help (Tr. #3 152). They also learned to work on their organization, dysgraphia and coping skills (Tr. #3 156).
Primary Therapist observed progress (Tr. #3 182). At the beginning of the school year, Student had shut down, was overwhelmed and experienced suicidal ideation (Tr. #3 182). During their stay, they were able to regulate their emotions, engage with Parent, participate in school, reported feeling better and were observed to be feeling better (Tr. #3 182). They had goals and “saw a future for themselves” (Tr. #3 183). Primary Therapist observed improvements in eye contact and verbal output and increased social interaction (Ex. U-5). Student went from a participant to a leader in their groups (Tr. #3 181). Additionally, Student completed each of the four main treatment goals as set forth on their Treatment Plan (Ex. S-3-4; Tr. #3 185). Finally, Parent felt that Private School “saved [Student’s] life” and that Student made emotional progress over the year (Tr. #2 107). Parent explained that prior to enrollment, Student was “disengaged with the world . . . paralyzed by anxiety and depression . . . their gender issues played into that . . . their fear of COVID played into that [a]nd now I see them, you know, blossoming again and feeling more self-confident, both academically and emotionally” (Tr. #2 107). Parent continued, “I don’t think that would’ve been possible any other way” (Tr. #2 107-108). Parent further noted that the clinical support Student received was “vital” (Tr. #2 100). For example, Parent felt Student learned DBT skills and used them to derail panic attacks and attend school (Tr. #2 100-101). Parent also felt Private School helped Student with school refusal by helping Student identify their anxiety and depression and increase their self-esteem (Tr. #2 101-102).
District’s Concerns
As noted previously, District Representative did not present any witnesses or documentary evidence, but stated that, through cross-examination, they would raise concerns about the appropriateness of Private School (Tr. #1 31, 36). District Representative cross-examined each witness (Tr. #2 56-66, 110-120; Tr. #3 174-183, 157-167). In their closing statement, District Representative alleged that “there seems to be an inconsistency with the class ratio” (Tr. #3 192), highlighting that Team Teacher stated Student could “handle” only a class of close to six students, while classes actually ranged from 8 to 12 students, and that Team Teacher was not sure of the class ratios for other classes (Tr. #3 192-193). District Representative further asserted that Private School was not appropriate for Student because Private School “lacks” special education certified teachers and only had one special education teacher (Tr. #3 193). I find each concern unavailing.
On the record before me, I do not find that class size was an issue for Student at Private School. In general, Student attended classes with seven to nine other students (Tr. #2 62; Tr. #3 165). However, classes could have as many as 12 students at one time (Tr. #3 165). Team Teacher explained that Student’s Chemistry class started with approximately five other students, but went down to three students (Tr. #3 153, 164-165). Team Teacher felt that six students was on the “higher end of what [Student] is comfortable with” (Tr. #3 153-154, 165) based on the fact that Student opened up more as the class got smaller and commented on class being “a lot nicer with less people” (Tr. #3 153). Furthermore, Team Teacher testified that if the number of students in a class was too overwhelming for Student, they would allow Student to sit in an alternate setting such as another class or the library (Tr. #3 165). Student would remain for instruction and then be allowed to work with another peer or on their own in another setting (Tr. #3 169). Team Teacher also testified that Private School “encouraged [Student] to manage and also provided opportunities to help them through those classes if they were overwhelmed” (Tr. #3 165). Given that Private School addressed concerns Student may have had regarding class size, and given the entirety of the record before me, I do not find that Private School was inappropriate.
I further find the District’s contention regarding the lack of special education teachers unavailing. To be appropriate, the totality of the evidence must demonstrate that the school provided educational instruction specifically designed to meet the unique needs of the individual student, supported by services as were necessary to permit that student to benefit from the instruction. See Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-365. For all the reasons stated above, I find that Private School meets this standard.
Moreover, a private school need not employ certified special education teachers to be found appropriate. See Frank G., 459 F.3d at 364, citing Carter, 510 U.S. at 14. Further, I find that the staff was able to meet Student’s needs. Private School employed three special education teachers, including Academic Director (Tr. #2 63). Notably, Team Teacher testified that teachers are given opportunities for professional development, including classes focused on working with students with mental wellness needs (Tr. #3 157-158). Additionally, teachers meet weekly with Academic Director who helps them work with students with special education needs (Tr. #3 158, 166-167). I also agree with Parent who was not concerned that Student was only taught by one special education teacher because: the class sizes were small; Student received a lot of individualized attention; and Private School had experience dealing with students who had needs similar to Student’s needs (Tr. #2 111). Further, I find that the District’s argument fails to appreciate the importance of the therapeutic aspect of Private School which was interwoven throughout the academic instruction (Ex. T-3), and that Team Teacher interacted with Student’s therapists regularly (Tr. #3 154). I find that the teachers were able to meet Student’s needs and that Parent’s placement was appropriate.
Finding of Appropriateness
In sum, Private School provides special education for students, like Student, who live with depression, anxiety, ADHD, gender dysphoria, and learning disorders such as dysgraphia and impairment in math fluency, as well as with challenges in executive functioning skills. Private School identified Student’s educational and mental wellness needs and created an educational program specifically to address them. Private School implemented that program, providing Student with much 1:1 support and various therapies. Private School also provided numerous accommodations, modifications, tools and support to enable Student to access the educational curriculum. Further, Private School continually re-assessed and monitored Student’s needs and progress. Student progressed as a result of those interventions and supports. I find that Parent has established by a preponderance of the evidence that Private School was an appropriate program for this Student.
Accordingly, I turn to Prong Three of the Burlington/Carter test, equities.
PRONG THREE- EQUITIES
The equities in this matter weigh in favor of Parent’s placement.
In deciding whether equities support the claim, including whether the remedy should be barred altogether or modified in some way, IHOs must consider a multitude of relevant facts. These can include whether the cost of the private education was unreasonable (see L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]), whether the parents failed to make their child available for evaluation by the district (see 20 U.S.C. § 1412[a][10][C][iii][III]) or whether actions taken by the parents were unreasonable (see 20 U.S.C. § 1412[a][10][C][iii][III]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 [2d Cir. 2014] [stating, “[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district’s efforts to meet its obligations under the IDEA”]; Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F. Supp.2d 403, 419 [S.D.N.Y. 2011] [finding equities met where parents cooperated in good faith at all times with the DOE, participated in the CSE meeting, visited proposed placements and notified district of unilateral placement].) The Second Circuit also has looked at whether the parents should have availed themselves of needbased scholarships or other financial aid from the private school, whether there was any fraud or collusion by the parent or the private school in generating the tuition or whether the arrangement with the school was fraudulent or collusive. See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
Additionally, as part of the equities analysis, reimbursement may be reduced or denied if the parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school or by written notice 10 business days before such removal. That notice must state that the parent is rejecting the proposed placement and must include their concerns and intent to enroll the student in a private school at public expense. See 20 U.S.C. § 1412(a)(10)(C)(iii)(I). The purpose of this statute is to enable the school district an opportunity to take the necessary steps to determine whether it can provide a FAPE to the student in a public school setting. See e.g. Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004). As the Second Circuit explained, "[t]he ten-day notice requirement gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections—all before the parents enroll their child in a private school and file a due process complaint." Further, "if parents unreasonably reject the school district's proposed changes to the IEP, or are otherwise uncooperative, courts and hearing officers are fully empowered to deny them reimbursement." Bd. of Educ. of Yorktown Cent. Sch. Dist. v. C.S., 990 F.3d 152, 171 (2d Cir. 2021). Parents of students enrolled in private school are not exempted from 10-day notice requirements. See S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-363 (S.D.N.Y. 2009).
Examining the many relevant factors as they pertain to this case, I find that the equities do not bar a full tuition remedy.
Analysis of Equities
District Representative raised no equities concerns in their opening or closing statements (Tr. #1 36; Tr. #3 192-194). They also did not present any documentary or testimonial evidence (Tr. #1 31, 36). Accordingly, I find that the District failed to prove that equities are in their favor.
Despite the District’s failure to meet their burden, I am required to analyze the entire record before me, which includes Parent’s documentary evidence and the testimony. I find that equities lie with Parent and that Parent is entitled to full tuition reimbursement.
Specifically, I find that the record is devoid of any unreasonableness that would warrant reduction with respect to Parent’s actions and that Parent filed a proper TDN. For example, Parent cooperated with the CSE, as demonstrated by participating in the May 2022 IEP meeting and explaining Student’s academic, physical and medical needs (Ex. E-1-5, 24).
Thereafter, on August 15, 2022, Parent, through their attorney, sent the District a TDN (Ex. B). In their letter, Parent stated that the District failed to develop a proper IEP for the 2022-2023 school year and delineated each of their concerns with the May 2022 IEP (Ex. B-1-3). Parent informed the District that until it offered an appropriate placement or cured the procedural and substantive defects they had identified, Parent would unilaterally enroll Student in Private School and seek funding for that placement (Ex. B-1, 2). I find that letter substantively proper.
I further find that although Parent did not provide that letter 10 business days in advance of Student’s attendance at Private School, given Student’s rapidly changing mental health status, a reduction in reimbursement is not warranted. At the time, Student was attending a Residential Treatment Program which recommended that Student be discharged to a long-term treatment program (Tr. #2 92; Ex. C-3-4). Moreover, Parent informed the District of their intent to enroll Student in Private School the same day they signed the contract with Private School (Tr. #2 108; Ex. B; Ex. I). This was a fluid situation unfolding as Student’s mental wellness needs were being addressed. Parent acted reasonably under the circumstances.
I further find that the CSE declined to use those 10 days to address Parent’s claims. On August 17, 2022, the DOE responded to the TDN, but only to state, inter alia, that the claim was “not appropriate for settlement” and that Parent would need to file a DPC to seek District funding for the placement (Ex. Q).
With that said, I am cognizant of the fact that between the development of the May 2022 IEP and the sending of the TDN, Student had attended Residential Treatment Program and had undergone both the Residential Treatment Program’s evaluation which recommended that Student be discharged to a long-term treatment program (Ex. D), and Independent Neuropsychologist’s Evaluation that recommended Student be discharged to “a small, therapeutic, residential program” (Ex. C-16). The July 2022 Neuropsychological Report was completed on August 2, 2022 (Ex. C-1). It is not clear on this record when Parent shared this information with the CSE. However, it is clear that Parent provided the CSE a copy of Student’s July 2022 Neuropsychological Report (Tr. #2 95; Ex. A-2, 3), that the CSE met with Parent on September 30, 2022 (Ex. F-34), and that Parent was an active participant during the September 2022 IEP meeting (Ex. F-11, 14, 15, 34). It is also clear that after the CSE determined that Student required a NYS approved NPS, Parent cooperated with the District by speaking with schools recommended by the District (Tr. #2 110, 120-121; Ex. G; Ex. A-3).
Finally, there is no evidence to suggest that the cost of the school is unreasonable or that there was any collusion between Private School and Parent as to the tuition or otherwise. In fact, Private School worked with Parent and Parent’s insurance company to recoup a portion of the fees charged (Ex. I; Ex. P), and Parent paid for the portion not covered by insurance (Ex. P-1).
Accordingly, I find that Parent acted reasonably and equitably at all related times for the 2022-2023 school year.
REMEDIES
Reimbursement of Tuition Not Covered by Insurance
Parent seeks tuition reimbursement for the 2022-2023 school year at Private School, less the amount that was paid for by Parent’s insurance company. As I have found that the Burlington/Carter test has been met and that there is no evidence that the tuition amount sought is unreasonable, I am granting the request for reimbursement.
The total cost of tuition from August 22, 2022 through June 20, 2023, less any award of scholarship, financial aid or other reduced tuition amount, was $170,925 broken down as follows: $550 per day from August 22, 2022 through December 31, 2022 and $575 per day from January 1, 2023 through June 20, 2023 (Ex. I; Ex. P).[14] Parent also paid an Enrollment Fee of $2,000 (Ex. P). As of the time of the hearing, Parent’s insurance covered $117,051.63 (Tr. #2 108; Ex. P). Parent seeks funding for the portion that was not covered by insurance, a total of $55,873.37 (Tr. #2 108-109; see also Tr. #1 38-39, 41; Tr. #3 201-202).
Per the Tuition Affidavit, Parent made payments totaling $55,873.37 (Ex. P). As the Financial Agreement and Tuition Affidavit are already in the hearing record, they need not be re-submitted before payment (Ex. I; Ex. P).
OTHER CONTENTIONS
Parent seeks payment of attorneys’ fees and expenses associated with representation in this matter (Ex. A-3-4). The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party. Entitlement, if any, to costs must be determined by a court of competent jurisdiction. See 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008; Application of a Child with a Disability, Appeal No. 06-109. I would be exceeding the scope of my authority by determining that Parent is the prevailing party entitled to attorneys’ fees.
Other than the relief set out in my Order below, and my findings detailed in this section of “Other Contentions,” I find the Parties’ remaining contentions to be unnecessary to this decision, without merit, beyond my jurisdiction, subsumed within the statutory framework of the IDEA or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all of Parent’s remaining claims not discussed herein are dismissed with prejudice.
ORDERS
IT IS HEREBY ORDERED that the New York City Department of Education (“DOE”) is to fund the cost of Student’s 2022-2023 school year tuition at Private School, totaling $172,925, by reimbursing Parent a total amount of $55,873.37, which was the amount of tuition not covered by Parent’s insurance (totaling $117,051.63); and it is further
ORDERED that the DOE shall pay for the forgoing tuition by reimbursing Parent $55,873.37 within 15 days of the date of this Decision.
.
October 30, 2023
(signed electronically)
_______________________________________________________________________________________
Ginger James
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- REDACTION IDENTIFICATION PAGE
| Redacted Information | Term Used In FOFD |
|---|---|
| REDACTED | Student |
| REDACTED | Parent |
| REDACTED | Parent’s Attorney |
| REDACTED | District Representative |
| REDACTED | Home District |
| REDACTED | Service District |
| REDACTED | Residential Treatment Program |
| State [REDACTED] | REDACTED |
| REDACTED | Therapist at Residential Treatment Program |
| REDACTED | Independent Neuropsychologist |
| REDACTED | DOE Education Administrator |
| REDACTED | Private School |
| State [REDACTED] | REDACTED |
| REDACTED | Academic Director of Private School |
| REDACTED | Primary Therapist at Private School |
| REDACTED | Teacher at Private School |
APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
| Exhibit | Title of Document | Date | Number of Pages |
|---|---|---|---|
| A | Due Process Impartial Hearing Request | 06/28/2023 | 4 |
| B | Ten-Day Notice | 08/15/2022 | 3 |
| C | Neuropsychological Assessment | 07/21/2022 | 31 |
| D | Letter from REDACTED | undated | 1 |
| E | Individualized Education Program (IEP) | 05/23/2022 | 25 |
| F | Individualized Education Program (IEP) | 09/20/2022 | 34 |
| G | Email – Re: REDACTED REDACTED Non-Public School Residential Placement | 11/04/2022 | 1 |
| H | REDACTED Program Description | Undated | 2 |
| I | Financial Agreement | 08/15/2022 | 2 |
| J | Progress Report 1 | 2022-2023 | 1 |
| K | Progress Report 2 | 2022-2023 | 1 |
| L | Mid Term Report 1 | 2022-2023 | 2 |
| M | Report Card 1 | 2022-2023 | 2 |
| N | Progress Report 3 | 2022-2023 | 1 |
| O | Mid Term Report 2 | 2022-2023 | 2 |
| P | REDACTED Tuition Affidavit | 06/23/2023 | 2 |
| Q | Ten-Day Notice Response | 08/17/2022 | 1 |
| R | Class Schedule | 2022-2023 | 1 |
| S | REDACTED Treatment Plan | 08/31/2022 | 5 |
| T | Statement in Lieu of Direct Testimony- REDACTED | 08/04/2023 | 6 |
| U | Statement in Lieu of Direct Testimony- REDACTED | 08/08/2023 | 6 |
| V | REDACTED Breakdown | Undated | 1 |
DOE EXHIBITS
NONE
IHO EXHIBITS
| Exhibit | Title of Document | Date | Number of Pages |
|---|---|---|---|
| I | Emails Regarding Additional Evidence and Rescheduling | Various | 7 |
Footnotes
[1] No personal identifying information is contained within the body of this Findings of Fact and Decision (“FOFD”). For personal identifying information, please refer to the attached Appendix. Further, this FOFD contains no references to the gender binary. The pronoun “they” is used as needed.
[2] During their opening statement, Parent’s Attorney explained that although the total tuition billed was $170,925.00, Parent only sought reimbursement for $55,873.37, which accounted for the “educational portion of the tuition” (Tr. #1 38-39). Parent’s insurance had covered the “therapeutic medical piece” of the tuition, accounting for the majority of the tuition costs (Tr. #1 38-39, 41). In their closing statement, Parent’s Attorney amended that portion of their statement about the breakdown of the costs, explaining that “the academic and clinical support are woven into one another,” and that Parent sought the portion of tuition not covered by insurance consisting of $55,873.37 (Tr. #3 201-202).
[3] References to the transcript from the Pre-Hearing Conference conducted on July 31, 2023 are denoted “PHC Tr.” References to the transcript from the Due Process Hearing conducted on August 14, 2023, August 17, 2023, and August 31, 2023 are denoted “Tr. #1,” “Tr. #2” and “Tr. #3,” respectively.
[4] Settlement conferences are conducted by an OATH Settlement Officer or OATH IHO not assigned to the case whose purpose is to aid the parties in exploring and facilitating a resolution to the DPC. Settlement Conference discussions are confidential, and the parties are directed to attend with knowledge of the dispute and settlement authority should there be an interest in resolution. Settlement conferences are not recorded.
[5] The use of the term “Prong One” refers to the Burlington/Carter standard as applied to cases involving tuition reimbursement for students placed in nonpublic schools by their parents.
[6] Off the record, at the outset of the proceeding, Parent ‘s Attorney had explained that they were not seeking to introduce the proposed written testimony of Primary Therapist because the witness was unavailable (Tr. #2 124). However, in light of the testimony presented, Parent’s Attorney asked for permission to present the witness at a subsequent appearance (Tr. #2 123-124).
[7] On August 28, 2023, by email, the Parties agreed to continue the hearing on August 31, 2023 to accommodate a witness’ schedule (IHO Ex. I-1-3; Tr. #3 135).
[8] Exhibit V lists the daily rate as only $513 whereas Exhibit I lists the daily rate as $550. Additionally, Exhibit P lists the daily rate as $550 from August 22, 2022 through December 31, 2022 and as $575 from January 1, 2023 through June 30, 2023 (Tr. #3 190-192; compare Ex. V with Ex. I and Ex. P).
[9] An “Appendix of Test Score Results” appears on pages 22-31 of Exhibit C.
[10] The period of August 22, 2022 through December 31, 2022 comprises 132 days. Multiplying 132 days by $550 per day yields a total of $72,600. The period from January 1, 2023 through June 20, 2023 comprises 171 days. Multiplying 171 by $575 yields a total of $98,325. Added together, that balance is $170,925.
[11] Parent’s contract was in effect until June 30, 2023 (Ex. P). It is not clear from the record whether the $170,925 included the ten days from June 21, 2023 through June 30, 2023, which would result in an additional tuition cost of $5,750. By my calculations, the $170,925 figure did not include those last few days.
[12] Parent appreciated that Private School held Student to a standard and did not just give them a grade, as evidenced by the fact that Student did have to repeat a class (Tr. #2 105, 112).
[13] Some of Student’s grades were provided (see generally Exs. J-O).
[14] As noted earlier, the period of August 22, 2022 through December 31, 2022 comprises 132 days. Multiplying 132 days by $550 per day yields a total of $72,600. The period from January 1, 2023 through June 20, 2023 comprises 171 days. Multiplying 171 by $575 yields a total of $98,325. Added together, that balance is $170,925.