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FINDINGS OF FACT AND DECISION
Case Number: 249512
Student's Name: [REDACTED]
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Requested By: Parent
Date of Hearing: 08/09/2023
08/10/2023
Actual Record Close Date: 08/15/2023
Decision Date: 08/16/2023
Hearing Officer: Daniel Ajello Esq. Hearing Officer‘s Finding of Fact & Decision
NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/09/2023
(All Parties Appeared Via Teleconference)
[REDACTED], Attorney — Student
[REDACTED], — Parents
[REDACTED], — Parents
[REDACTED], Attorney — DOE
(Notice of Appearance Filed-No Appearance at Hearing) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/10/2023
(All present by video or telephone)
[REDACTED], Attorney — Student
[REDACTED], — Parents
[REDACTED], Attorney — DOE
(Notice of Appearance Filed-No Appearance at Hearing) — DOE
Hearing Officer‘s Finding of Fact & Decision — DOE
DOCUMENTATION ENTERED INTO THE RECORD
EXHIBITS FOR HEARING – PARENT - Entered 08/09/2023
Exhibit Date Description Page(s)
A 6/30/23 Impartial Hearing Request/Due Process Complaint (DPC) 8
B 2/1/23 Individualized Educational Program (IEP) 38
C 1/30/23 Findings of Fact and Decision IH # 227164 (FOFD) 24
D 1/21/22 Psychoeducational Evaluation 4
E 12/19/22 Health Paraprofessional Progress Report 2
F 1/23/23 Level 1 Vocational – Teacher Assessment 1
G 1/24/23 Teacher Report 3
H 1/25/23 Occupational Therapy (OT) Report 3
I 1/26/23 Physical Therapy (PT) Report 3
J 10/19/2022 Speech and Language Therapy (SLT) Report 3
K 6/2/23 Letter to the Committee on Special Education (CSE) 3
L 6/14/23 Prior Written Notice 4
M 6/14/23 School Location Letter 2
N 6/27/23 Letter to the Committee on Special Education 5
O 7/6/23 Enrollment Contract 4
P Undated Program Description 3
Q 23-24 SY Classroom Profile 2
R 23-24 SY Classroom Schedule 1
S 7/31/23 Affidavit of Payment 1
T 8/1/23 Tax Return 2
U 08/04/23 Affidavit in Lieu of Direct Testimony
[REDACTED] School Director 11
V 08/02/23 Affidavit in Lieu of Direct Testimony
[REDACTED] Parent 7
Hearing Officer‘s Finding of Fact & Decision
DEPARTMENT OF EDUCATION (DOE)
NONE
IMPARTIAL HEARING OFFICER
Entered 08/09/2023 I Notice of Appointment, 07/03/2023, 4 pages II Teleconference Notice, 07/03/2023, 1 page III Notice of Appearance, 07/06/2023, 1 page IV Notice of Appearance, 07/31/2023, 1 page Entered 08/10/2023 V Pendency Order, 08/09/2023, 10 pages Hearing Officer‘s Finding of Fact & Decision
INTRODUCTION
On 07/03/2023, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.
Hearing commenced, on 08/09/2023, to allow an opportunity for the DOE to defend against the allegations contained in the DPC. The DOE Representative did not appear, though a recent Notice of Appearance was filed. (IHO Ex IV)
Parent requested a determination of the Student’s Pendency during the proceedings. (Ex A 5)
Parent commenced its case by seeking a determination of the Student’s Pendency, on 08/09/2023.
Pendency Order was issued, on 08/09/2023. (IHO Ex V)
Pendency was found to exist in FOFD, of 01/30/2023, Case Number 227164, which contained:
1. That the New York City Department of Education is directed to reimburse and/or fund the cost of the Student’s 2022-2023 twelve-month placement at [REDACTED]
(Unilateral Placement – UP) in the amount of $[REDACTED];
2. As to the tuition reimbursement/funding, all payments shall be made directly to the non-public, unilateral placement(s) upon a showing by the Parent that tuition has not been paid out-of-pocket by the Parent. If the Parent can show that out-of-pocket payment to the placement(s) was made by the Parent, then the Parent shall be reimbursed by the District;
3. In addition to the above, the Student is entitled to the following services for the 2022- 2023 school year:
a) Occupational Therapy, 1:1, five times per week for 45 minutes;
b) Physical Therapy, 1:1, five times per week for 45 minutes;
c) Speech and Language Therapy, 1:1, five times per week for 30 minutes;
d) Dynamic Display Speech Generating Device (SGD), Daily, Fully Time;
e) Prone Stander, Daily, Full Time; Hearing Officer‘s Finding of Fact & Decision
f) Transit Stroller, Daily Full Time;
g) Wheelchair Conviad Cruiser – Bus Ready, 1:1, Daily Full Time;
h) Gait Trainer, 1:1, Daily, Full Time;
i) Activity Trainer, Daily Full Time; and,
j) Paraprofessional (Health/Toileting), 1:1, Daily, Full Time.
To the extent that the District has not or is not providing any of the above services, the services shall be provided by a provider of the Parent’s choosing with said provider to be compensated by the District at market rate.
(Ex C 16-17, IHO Ex V 4-5 & 9)
Hearing continued, and concluded, on 08/10/2023.
Appended to the record are lists of persons in attendance and the documents received in evidence.
Due Process Complaint (DPC) alleges a failure of the DOE to provide an appropriate IEP and placement for the 2023-2024 school year. (Ex A 1)
Allegations include:
- The DOE failed to provide Student a Free Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE) for the 2023-2024 school years, as mandated by federal and state law;
- Parents placed Student unilaterally, in a private special education program, for which they seek costs, including tuition funding, paraprofessional services, devices, and transportation (Ex A 1);
- Unilateral Placement, [REDACTED] (UP), is appropriate; and
- Equities favor the Parent. (Ex A 5)
Parent seeks relief to remedy the alleged failure, including:
- DOE direct funding for Student Tuition at the (UP), in the amount of
$[REDACTED].00, for a 12 month school year (Ex A 5); and
- DOE to provide transportation, paraprofessional (via RSA), and devices/technology pursuant to Student’s IEP. (Ex 5)
JURISDICTION
Hearing Officer‘s Finding of Fact & Decision
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.
THE POSITION OF EACH PARTY
The DOE did not defend any offer of a FAPE, for the Student, for the 23-24 school year.
Parent Attorney advised the IHO that the UP, as compared to the 22-23 school year: “school has changed its structure. So now the occupational, physical, and speechlanguage therapists are staff. And so they're paid they're paid by the (UP) rather than through RSAs. The paraprofessional is still brought in through a contract with the DOE, so that service is still an RSA.” (T 12)
At Hearing, the Parents Attorney supported its position via Documentary Evidence and Testimony. The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below:
A 6/30/23 Impartial Hearing Request/Due Process Complaint (DPC)
Details Parent’s allegation of a denial of FAPE, for the 23-24 school year, and details sought after relief.
B 2/1/23 Individualized Educational Program (IEP)
Confirms Student entitled to special education services, setting forth a classification of Multiple Disabilities. (Ex B 1)
Identifies Student as a: “…redacted-year-old student with a diagnosis of Cerebral Palsy. He has limitations in fine and gross motor skills and well as expressive language skills. [Student] needs repetition and practice to acquire and maintain skills. [Student] continues to be inconsistent in ability to recall and generalize information. Fatigue and distractibility affect his participation during the school day. [Student] enjoys the more Hearing Officer‘s Finding of Fact & Decision social components of the school day. He will volunteer to participate in morning activities. He enjoys doing the attendance and weather on the Smartboard. He needs hand over hand assistance with a pointer to interact with the Smartboard during activities.” (Ex B 1)
Recommendation includes:
- Adaptive Physical Education;
- Special Class 12:1+1;
- Occupational Therapy, 1:1, five times per week for 45 minutes;
- Physical Therapy, 1:1, five times per week for 45 minutes;
- Speech and Language Therapy, 1:1, five times per week for 30 minutes;
- Dynamic Display Speech Generating Device (SGD), Daily, Fully Time;
- Prone Stander, Daily, Full Time;
- Transit Stroller, Daily Full Time;
- Wheelchair Conviad Cruiser – Bus Ready, 1:1, Daily Full Time;
- Gait Trainer, 1:1, Daily, Full Time;
- Activity Trainer, Daily Full Time;
- Paraprofessional (Health/Toileting), 1:1, Daily, Full Time (Ex B 27-28);
- 12 month services. (Ex B 29)
Special Transportation includes:
- Vehicle and/or Equipment Needs – Lift Bus
- Vehicle and/or Equipment Needs – Student uses walking aids
- Vehicle and/or Equipment Needs – Student uses wheelchair (Regular Size)
- Other Accommodations: Limited Travel Time (LTT) no more than 30
Minutes
- Reason(s) why the student needs special transportation service and/or accommodations: Student is a special education student with global developmental delays warranting the need for transportation accommodations, as recommended by his doctor.
(Ex B 35) Hearing Officer‘s Finding of Fact & Decision
C 1/30/23 Findings of Fact and Decision IH # 227164 (FOFD)
Decision addressed the Student’s 22-23 school year, Finding the UP appropriate, and directing the DOE to fund the Student’s Tuition, and services. (Ex C 16-17)
D 1/21/22 Psychoeducational Evaluation
Details results of Student testing, noting academic, social and physical challenges; and then current array of services. (Ex D 1-4)
E 12/19/22 Health Paraprofessional Progress Report
Details assistance needed, and provided to the Student, to accommodate his unique disability.
F 1/23/23 Level 1 Vocational – Teacher Assessment Student post secondar expectations are set forth as a Day Habilitation Program.
G 1/24/23 Teacher Report
Details aspects of Student social and academic program, at the UP, during the 22-
23 school year, including:
- Functional Academics (Ex G 1);
- Language/Communication;
- Independent Living Skills/Mobility;
- Social Skills Behavior (Ex G 2); and
- Vocational/Community Involvement. (Ex G 3) H 1/25/23 Occupational Therapy (OT) Report
Sets forth areas of Student need, and confirms the need for continued services. I 1/26/23 Physical Therapy (PT) Report
Sets forth areas of Student need, and confirms the need for continued services. Hearing Officer‘s Finding of Fact & Decision
J 10/19/2022 Speech and Language Therapy (SLT) Report
Sets forth areas of Student need, and confirms the need for continued services.
K 06/02/2023 Letter to the Committee on Special Education (CSE)
Parent, via Attorney, notify the DOE of:
- Disagreement with recent IEP;
- Parent indicated that a 12:1:1 classroom is too large for the Student given his distractibility and need for 1:1 instruction;
- Parent will make an appointment to visit the offered school once she receives a School Location Letter, and will discuss her concerns there;
- If the school cannot satisfy their concerns, the Parents will plan to unilaterally place Student at the UP, and invoke their due process rights for DOE funding. (Ex K 1) L 6/14/23 Prior Written Notice
Confirms Student entitlement to an array of special education services, for the 23-
24 school year. M 6/14/23 School Location Letter
Confirms DOE proposed placement for the 23-24 school year. N 6/27/23 Letter to the Committee on Special Education
Confirms that the Parent visited the proposed Student placement and details areas of concern, which include:
o The program is too far from Student’s home. It would take over one hour to get to and from school without any stops along the way.
Student cannot tolerate so long a ride. His travel accommodation limits him to a ride of no more than 30 minutes;
o Student would not be with functional peers. The program has never had anyone in a wheelchair before, and the class is on the second floor;
o Because the school has never had children like Student, they also do Hearing Officer‘s Finding of Fact & Decision not have a changing room or changing table for Student. At his age especially, it is critical that Student has the privacy he needs in this respect;
o There are no inclusion opportunities. The special education students are purposefully separated from the rest of the school population in the lunchroom, which hosts up to 80 kids at a time. If the noise is not tolerable for a student, he can eat in his classroom. The special education portion of the building is in its own part of the building;
o The therapy rooms are totally inappropriate. The Occupational Therapy room could not fit Student’s equipment, and the Physical Therapy room has no mats or equipment;
o The actual classroom is too small to accommodate Student’s equipment;
o Student uses a chair, stander and walker and also has a paraprofessional with him. (Ex N 1)
Parent again advises the DOE that the Student will be placed at the UP, and due process rights invoked. (Ex N 1)
O 7/6/23 Enrollment Contract
Student, 12 month, 23-24 UP Tuition is set forth as $[REDACTED].00. (Ex O 1)
Parents are obligated to payment, under the terms of the contract, via signature.(Ex O 4)
P Undated Program Description
Sets forth general characteristics, of the UP, which include:
- The UP provides comprehensive educational services for children with special needs and their families;
- Highly trained, full time, special education teachers provide both group and individual instruction in all curricular areas; Hearing Officer‘s Finding of Fact & Decision
- The primary objectives of the schools are to foster academic growth and development; teach social and emotional skills; and to enhance communication, prevocational and vocational skills;
- The overarching curriculum for the elementary and high school programs is the Functional Academic Curriculum for Exceptional Students (FACES). This curriculum is a framework for establishing high student expectations while teaching meaningful and functional skills necessary to develop independence;
- The curriculum is adapted to differing ages, abilities and learning styles of the students. Additional curriculum include the Assessment of Functional Living Skills
(AFLS), the Assessment of Basic Language and Learning Skills (ABLLS), and Jed
Baker’s social skills curriculum;
- Individual educational goals and objectives are developed for each student with an emphasis on functional academics, language and communication skills, developing social relationships, activities of daily living, prevocational and vocational skills;
- Academic instruction teaches skills across all academic domains including ELA, math, science, and social studies;
- Students’ academic goals provide for individualized instruction and a personalized curriculum that focuses on functional life skills;
- Instruction is often provided in community-based settings to teach students in the environment in which these skills are most needed;
- Through community partnerships, the UP has a work study program that enables students to transfer skills they have learned in the classroom to actual work settings;
- Students receive formal social skills instruction based on the Jed Baker Social Skills Training program;
- In addition, an essential program component provides students with daily opportunities to be included alongside typically developing students from the host school as well as other nearby schools;
- Students are provided with instruction and support to maximize successful social interactions;
- Typically developing peers are also provided with knowledge and support to facilitate and encourage spontaneous and meaningful interactions. Hearing Officer‘s Finding of Fact & Decision
- Teaching functional communication skills is a program priority. The UP provides every student with an individual iPad, equipped with appropriate augmentative and assistive technology;
- A variety of instructional methods are used, all of which are empirically validated and shown to be effective for students with special needs. These instructional methods include 1:1 and small group instruction, student initiated interactions and peer mediated instruction. Applied behavior analysis, including discrete trial teaching, direct instruction, natural environment teaching and other behavioral strategies are used in the classrooms (Ex P 2)
- There is a regular and ongoing assessment of each student’s progress. Data is taken daily on each of the students’ goals and objectives and this data is analyzed and used to inform decision making regarding the students’ ongoing educational program;
- Parents receive regular communication from the school regarding their child's progress;
- Due to the complex nature of the students’ disabilities, many present with challenging behaviors. Positive behavior support systems are embedded in the daily classroom routines and specific behavior plans are embedded in the student’s individual teaching procedures. Proactive approaches to managing behavior are used. Persistent behavioral challenges are addressed with more intensive behavior intervention plans based on individual functional behavior assessments;
- In addition to the individually oriented instruction in the classroom, the students receive mandated related services including speech and language therapy, occupational therapy, physical therapy, counseling, and hearing education services. The UP tuition includes the cost of these related services. We also employ behaviorists to address students' individual behavioral needs;
- Nursing services are provided in school by the New York City Department of
School Health;
- Parent training is provided to assist parents in understanding the needs of their child and to coordinate efforts between home and school. Families are offered Hearing Officer‘s Finding of Fact & Decision support in behavior management and training sessions also teach parents strategies in generalizing skills from school to home. (Ex P 3)
Q 23-24 SY Classroom Profile
Provides general characteristics of the Student classmates, at the UP.
R 23-24 SY Classroom Schedule
Student 23-24 daily UP Schedule.
S 7/31/23 Affidavit of Payment
UP Affidavit states that no Tuition has yet been paid towards the 23-24 school year, leaving a balance due of $[REDACTED].00.
T 8/1/23 Tax Return
Parent 2022 income is about $[REDACTED]. (Ex T 1)
U 08/04/23 Affidavit in Lieu of Direct Testimony [REDACTED] School Director School Director provides Testimony that includes:
- A review of her qualifications, and role at the UP (Ex U 1);
- General characteristics of the UP instruction, staff ad school size (Ex U 2);
- Familiarity with the Student, who previously attended the UP lower elementary school (Ex U 2);
- A review of Student challenges relating to special education needs, and supports to address those needs, such as: Assistive Augmentative Communication Device , hand-over-hand assistance, grouping with functional peers, a class of five students, a Certified Special Education Teacher, and an individualized program (Ex U 3-4);
- Student also receives one-to-one instruction when a new skill or subject is introduced; specific reading and math curriculum; functional reading skills curriculum; ADL Skills practice; social skills training; daily inclusion opportunities throughout the day; peer socialization (Ex U 5); related services; Hearing Officer‘s Finding of Fact & Decision paraprofessional; parent training; and opportunities to practice social and living skills in the community (Ex U 6-7);
- Witness believes the Student’s IEP is not appropriate due to: a lack of behavior interventions and support (Ex U 8); and vague and inappropriate goals (Ex U
9);
- Student has made progress this year with math skills, language skills, reading, socially emotionally (Ex U 10);
- A belief that the UP serves as an appropriate Student program for the 23-24 school year. (Ex U 11)
V 08/02/23 Affidavit in Lieu of Direct Testimony [REDACTED] Parent Student’s Parent provides Testimony that includes:
- Parent is concerned with a lack of successful Student evaluation by the DOE
(Ex V 2);
- At the recent IEP meeting goals are not sufficient in that they lack appropriate Student supports needed throughout the day (Ex V 3);
- The IEP also does not include inclusion opportunities (Ex V 3);
- A School Location Letter was received and Parent visited the recommended placement, which raised several concerns, including: class size; safety; and ability to utilize equipment (Ex V 4);
- Parent determined the recommended placement was inappropriate (Ex V 4);
- Parent was open to a Public School placement, for the Student;
- Student has made progress, at the UP, notably in areas of behavior, speech and socialization (Ex V 5);
- Parent signed Enrollment Contract (Ex L);
- Parent provided Tax Income information (Ex T); and
- Tuition has not been paid and it would be a hardship for family to pay the tuition and await reimbursement (Ex V 5).
The Parent also Testified, at Hearing, that there is no asset to draw upon which could be used to pay the Tuition in full and await reimbursement. (T 34) Hearing Officer‘s Finding of Fact & Decision
FINDING OF FACTS AND DECISION
Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400- 1482) are (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 prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A][B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [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 developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).
Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the Hearing Officer‘s Finding of Fact & Decision decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, Hearing Officer‘s Finding of Fact & Decision 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't 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).
The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d Hearing Officer‘s Finding of Fact & Decision at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "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'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 Hearing Officer‘s Finding of Fact & Decision
F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. 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 specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable Hearing Officer‘s Finding of Fact & Decision consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).
Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).
DOE offer of FAPE for the 2023-2024 School Year The DOE opted not to present a defense to the Parent’s allegations.
The district has presented no witnesses in this matter. Although an IEP has been entered into the record, it is well established that an IEP does not on its own, without testimony to explain its appropriateness, establish that a FAPE has been provided. See e.g. R.E. v. N.Y.C. Dep’t of Educ., 694 F. 3d 167, 185-186 (2d Cir. 2012); L.O. v. N.Y.C. Dep’t of Educ., 822 F2d 95,111 (2d Cir. 2016) Accordingly, I conclude that the district has not met its burden to establish that it provided a FAPE.
Therefore, I do not address the specific claims of the parent concerning the review but note I find them credible and unrebutted, as supported by the relevant Testimony. (Ex U 8-9 & V 2-4)
DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 23-24 school year. Hearing Officer‘s Finding of Fact & Decision
I find the DOE failed to offer the Student a FAPE for the 23-24 school year.
UP Placement for the 23-24 School Year
Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 23-24 school year.
The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. I find that the documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent.
Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex B, D, E, F, G, H, I, J, P, Q, R, U & V)
I find that the UP provides special education services specifically tailored to meet the needs of the Student.
I find UP provides an appropriate education and program for the Student for the 23-[24] school year.
TUITION FUNDING 2022-2023 School Year
I find the Parent is entitled to Student’s UP Tuition funding, via the DOE, for the UP, 23Hearing Officer‘s Finding of Fact & Decision instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769
F. Supp. 2d at 428). The Mr. and Mrs. A. Court relied in part on dicta from earlier cases in which similar claims seeking direct retroactive payment to a private non-approved school were asserted (see Connors v. Mills, 34 F. Supp. 2d 795, 805-06 [N.D.N.Y. 1998] [opining that such financial disputes should be resolved within the administrative hearing process]; see also S.W., 646 F. Supp. 2d at 358-60). The Mr. and Mrs. A. Court held that in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs (Mr. and Mrs. A., 769 F. Supp.2d at 430).
In this matter the Parents choose to continue Student placement at UP, without an appropriate DOE alternative.
Parent provides information relative to their financial capability. (Ex T)
I find the Parent meets the appropriate burden of production and persuasion with respect to a lack of financial resources to "front" the costs of a unilateral placement and have evidenced legal obligation for the Student's tuition payments (Application of the Dep't of Educ., 12- 132; Application of a Student with a Disability, 12-036; Application of a Student with a Disability, 12-004; Application of the Dep't of Educ., 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041).
I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to direct DOE funding of the UP tuition, for the 23-24 school year.
TRANSPORTATION
The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). In addition, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § Hearing Officer‘s Finding of Fact & Decision
4401[2]; 8 NYCRR 200.1[ww]).
Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 16035). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]).
Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).
Student IEP confirms the Student’s need for, and entitlement to special education transportation services:
Special Transportation includes:
- Vehicle and/or Equipment Needs – Lift Bus
- Vehicle and/or Equipment Needs – Student uses walking aids
- Vehicle and/or Equipment Needs – Student uses wheelchair (Regular Size)
- Other Accommodations: Limited Travel Time (LTT) no more than 30
Minutes
- Reason(s) why the student needs special transportation service and/or accommodations: Student is a special education student with global Hearing Officer‘s Finding of Fact & Decision developmental delays warranting the need for transportation accommodations, as recommended by his doctor.
(Ex B 35)
I find the Student remains entitled to the special education transportation accommodations as Ordered below. Hearing Officer‘s Finding of Fact & Decision
ORDER
1. The Department of Education (DOE) failed to offer the Student a FAPE for the 23-24
school year.
2. The [REDACTED] (UP) provides Student with an appropriate program and placement, for the 12 month, 23-24 school year.
3. The DOE shall directly fund Student tuition at [REDACTED] (UP), for the 12 month, 23-
24 school year, inclusive of related therapy services, up to the amount of
$[REDACTED].00.
4. The DOE shall provide, if not already provided, the following equipment/assistive technology, for the Student:
- Dynamic Display Speech Generating Device (SGD), Daily, Fully Time;
- Prone Stander, Daily, Full Time;
- Transit Stroller, Daily Full Time;
- Wheelchair Conviad Cruiser – Bus Ready
- Gait Trainer, 1:1, Daily, Full Time; and
- Activity Trainer, Daily Full Time.
5. The DOE shall provide Parent with a Related Service Authorization (RSA), for Student
Paraprofessional (Health/Toileting), 1:1, Daily, Full Time, for the 12 month 23-24 school year.
6. The DOE shall provide the Student with special education transportation for the 23-24 school year, to and from [REDACTED] (UP), inclusive of:
- Vehicle and/or Equipment Needs – Lift Bus
- Vehicle and/or Equipment Needs – Student uses walking aids
- Vehicle and/or Equipment Needs – Student uses wheelchair (Regular Size)
- Other Accommodations: Limited Travel Time (LTT) no more than 30 Hearing Officer‘s Finding of Fact & Decision
Minutes.
7. The DOE shall provide Parent with any documents or forms necessary to facilitate services and payment under this Order, within ten days of the date of this Order.
8. This decision is subject to appeal and review by the State Review Officer.
DATED: AUGUST 16, 2023
DANIEL AJELLO
DANIEL AJELLO
Impartial Hearing Officer Hearing Officer‘s Finding of Fact & Decision
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
Footnotes
[24] school year. The DOE has denied a FAPE to the Student for the 23-24 school year. Student, 12 month, 23-24 UP Tuition is set forth as $[REDACTED].00. (Ex O 1) Parents are obligated to payment, under the terms of the contract, via signature. (Ex O 4) Parent provides financial information, and Testifies she is unable to pay the UP tuition, and await reimbursement. (T 34, Ex V 5, Ex T) With regard to fashioning equitable relief, one court has addressed whether it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so (Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). The court held that "[w]here . . . parents lack the financial resources to 'front' the costs of private school tuition, and in the rare