Impartial Hearing Decision

CASE NUMBER: 601737 - NYC: 249628

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

School District: NYC DOE

Hearing Requested by: Parent

Request Date/Date Complaint Filed: 07/03/2023

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

Actual Record Closed Date: 10/15/2023

Date of Decision: 10/16/2023

Hearing Officer: Paul J. DeSena

INTRODUCTION

This is a decision in a hearing under the Individuals with Disabilities Education Act [hereinafter, “IDEA”] and Section 504 of the Rehabilitation Act of 1973. The Student was [REDACTED] years of age at the start of the 2021/22 school year, attending the Private School. (Ex. 1, at 2; Ex. M). In the Due Process Complaint [hereinafter, “DPC”], the Parent alleged that the Department of Education [hereinafter, “District” or “DOE”] failed to provide the Student a Free Appropriate Public Education [hereinafter, “FAPE”] for the 2021/2022 school year. (Ex. 1, at 1).

The Parent requests tuition reimbursement for the 2021/22 school year for Student’s private program not approved by the Commissioner of Education for the education of students with disabilities. (Id, at 3).

As discussed below, I find that the District failed to provide the Student a FAPE for the 2021/22 school year. Additionally, the Private School offered the Student specially designed instruction sufficient to meet the Student’s needs and the equities support the Parent’s requested relief.

PROCEDURAL HISTORY

The Parent filed this case on 6/20/2023. (Ex. 1, at 1). I was appointed to hear this case on 6/21/2023. I conducted a Pre-Hearing Conference [hereinafter, “PHC”] with the Parties on 7/21/2023. (See generally PHC Tr.). Thereafter, on 8/14/23, the District filed a motion to dismiss the DPC on statute of limitations grounds, and the Parent responded on 8/17/23. After the filings were complete, I reserved decision on the motions until the hearing via e-mail.

A hearing was held on 9/13/2023. (See generally, Hearing Tr.). The Parent and the District were represented by counsel (Id.). I again reserved decision on the District’s motion until after the Hearing. (Id.). The motion is decided below.

At the hearing, the District introduced Exhibits 1-4, previously disclosed with its motion to dismiss. (See generally, Hearing Tr.). The District made an opening statement, rested on its exhibits for its case-in-chief, and made a brief closing statement. (Hearing Tr., at 39-40, 46, 59-60). Further, the District cross-examined the Parent’s only witness and contested that the Parent’s unilateral placement was appropriate for the Student and that the equities balanced in the Parent’s favor. (Id, at 52-58).

The Parents argued that the District denied the Student a FAPE, that the Parent’s unilateral placement was appropriate for the Student, and that the equities supported an award of tuition. (See generally, Hearing Tr.). The Parents introduced exhibits A–M into evidence.^[1] (Id., at 36-38). The Parent’s attorney delivered an opening statement. (Id., at 41-46). The Parent called a single witness, the Private School’s Principal and Executive Director (by affidavit). (Ex. M). The Parent’s attorney made a closing statement. (Hearing Tr., at 60-64). This order follows.

FINDINGS OF FACT

After reviewing the record generated at the hearing, I make the following findings of fact and determinations.

At the start of the 2021/22 school year, the Student was an [REDACTED]-year-old student who attended the Private School. (Ex. 1, at 2; Ex. M, at ¶¶ 41-42). The 2021/22 school year was the Student’s fifth year in the Private School. (Id.). Student is diagnosed with “acquired brain injury (intractable symptomatic epilepsy/lennox-gastaut syndrome, seizure disorder, VNS implant), autism spectrum, severe developmental delays, cushing’s syndrome, allergic rhinitis and conjunctivitis, eczema, behavior, and sleep disorder…with VNS implant that needs an adult to activate/swipe the magnet in the event of a seizure activity.” (Ex 2, at 14). Student is on anti-epilepsy drugs/AED, “which requires close monitoring to prevent injury and aspiration,” and gets his nutrition and hydration orally, “which [also] requires close monitoring to prevent aspiration.” (Id). The Student’s disabilities impact him in school. (Ex. M, at ¶¶ 45-46; Ex. 2, 1-14). Specifically, the Student requires “significant adaptations” throughout the school day so that the Student may learn and, indeed, participate, throughout the day. (Ex. M, at ¶ 46). These adaptations include nursing services and a 1:1 health paraprofessional throughout the day. (Ex. 2; Ex. D).

A. The District IEP dated 6/07/21

On 6/07/21, the Student’s District IEP meeting was held. (Ex. 2). The Student’s “Present Levels of Performance” were based on four assessments, all conducted in 2019 and 2020. (Ex. 2, at 1). These assessments are (a) the Staugler Early Literacy Rubric (2007) (March 2020), (b) the Bridge Emergent Literacy Observational Scales (March 2020), (c) the Communication Matric Level III (October 2019), and (d) the GMFM (December 2019). (Ex. 2, at 1-2). The “teacher report” within the “Present Levels of Performance” in the areas of academic development, social development, and physical development does not appear to have been updated since before the COVID-19 pandemic. (Ex. 2, at 2-14). It is unclear whether the Student’s “Measurable Annual Goals” and the benchmarks therein are updated to reflect the then-current academic year. (Ex. 2, at 17-27). The 6/7/21 IEP makes the following recommendations (Ex. 2, at 29-33):

• A special education classroom with an 8:1:1 teacher to Student to paraprofessional ratio

35 times per week, a 12-month program, a 1:1 health paraprofessional assisting the Student throughout the day

• Speech-language therapy four times weekly at forty-five minutes per session (4 x 45) on a 1:1 basis.

• Occupational four times weekly at forty-five minutes per session (4 x 45) on a 1:1 basis.

• Physical therapy three times weekly at forty-five minutes per session (3 x 45) on a 1:1 basis.

• Parent Training once monthly for sixty minutes per session.

• Door-to-door transportation on an air-conditioned, lift bus with a 1:1 paraprofessional and limited travel time not exceeding 60 minutes, all to be implemented by a District

75 school.

B. The Private School and the 06/03/2021 IEP

The Private School is an “independent school for students who are severely disabled, including students with traumatic brain injuries (‘TBI’) and “multiple disabilities.” (Ex. M, at ¶ 8). The Private school has “extensive experience educating children who suffer from brain injuries and have multiple disabilities, which include complex medical needs such as seizure disorders and g-tube feeding.” (Id). All students “must use some kind of augmentative communication device…to communicate,” and all students use “assistive technology…to access and engage with their environment.” (Id). Staffing at the Private School includes “11 teachers…and 48 related service providers.” (Ex. M, at ¶ 10). All of the “related service providers are licensed.” (Id). The Student’s teacher for the 2021/22 school year has a Master’s Degree in education in “Severe & Multiple Disabilities” and “holds New York State certifications in Elementary Education, Students with Disabilities, and Early Childhood Education.” (Ex. M, at ¶ 57).

On 6/03/2021, an IEP was developed by the Student’s Private School. (Ex. D). The Student’s “Present Levels of Performance” were based on seven assessments, all of which were taken in January of 2021. (Ex. D, at 2). These evaluations include the following (Ex. D, at 2-4):

• The Bridge Emergent Literacy Inventory (1/15/21);

• Pediatric Evaluation of Disability Inventory (January 2021);

• (DASH-3) Developmental Assessment for Individuals with Severe Disabilities III (January 2021);

• Sensory Profile/Sensory Processing Measure (January 2021);

• Gross Motor Function Measure (GMFM) (1/4/2021);

• (Rowland 2004) Communication Matrix (January 2021); and

• Staugler Early Literacy Rubric (1/15/21).

The Student’s “Present Levels of Performance” and “Measurable Annual Goals” were updated in anticipation of the school year at issue and included “Measurable Annual Goals” in all areas of the Student’s academic studies and related services, unlike the District IEP. (Compare Ex. D, at 15-24 with Ex. 1, at 18-28). The vast majority of progress reports for the Student’s “Measurable Annual Goals” report are either gradual or satisfactory progress. (See generally Ex. C). The 6/3/21 IEP makes the following recommendations (Ex. M, at ¶ 47):

• A special education classroom with an 8:1:1 teacher to Student to paraprofessional ratio

35 times per week in a 12-month program, with a 1:1 health paraprofessional assisting the Student throughout the day.

• Speech-language therapy four times weekly at sixty minutes per session (4 x 60) on a 1:1 basis.

• Occupational four times weekly at sixty minutes per session (4 x 60) on a 1:1 basis.

• Physical therapy three times weekly at sixty minutes per session (3 x 60) on a 1:1 basis.

• Parent Training once monthly for sixty minutes per session.

• Door-to-door transportation on an air-conditioned, lift bus with a 1:1 paraprofessional and limited travel time not exceeding 60 minutes.

The IEP notes that the Student requires “significant adaptations” such as “adapted materials,” a small class size, “high and low tech communication access,” “intensive occupational, physical, and speech-language therapy,” “limited tactile distractions,” “clear routine and advance notice of activities,” “extended wait time for response,” extended and frequent breaks, “movement breaks,” a visual schedule, “consistent locations and clear delineation for his materials and tools,” among many other adaptations. (Ex. M, at ¶¶ 46-49). At school, the Student uses an adapted activity chair in the classroom and “low-tech AAC” to communicate. (Ex. M, at ¶ 45). The Student requires sixty (60) minute related services sessions because “they allow enough time to be dedicated for extra processing time, necessary breaks, redirection, and repetition, as well as for parent and caregiver education, collaboration, and programming.” (Ex. M, at ¶¶ 51-53).

The student’s progress reports for the 2021/22 school year report progress across virtually all domains. (Ex. C). Specifically, he achieved progress across the social/emotional, academic (reading, writing, and math), speech-language therapy, occupational therapy, and physical therapy. (Ex. M, at ¶¶ 60-64). The Principal of the Private School testified that the Student’s program was “reasonably calculated to enable him to derive educational benefit and make appropriate progress” and that in the 2021/22 school year, the Student “demonstrated appropriate, measured progress on his goals and in all areas of his program.” (Ex. M, at ¶¶ 65-66).

The tuition at the Private School for the 12-month program is $193,980 for the 2021/22 School year. (Ex K). The Parent’s adjusted gross income for the 2020 tax year was $32,253. (Ex. I, at 1).

CONCLUSIONS OF LAW AND ANALYSIS

When a parent believes that a school district has failed to provide a student with a FAPE, a parent may unilaterally enroll the child in a private school and seek tuition payment from the school district by filing a due process complaint. [Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 376 (2d Cir. 2014) (quoting Reyes ex rel. R.P. v. New York City Dep’t of Educ., 760 F.3d 211, 215 (2d Cir. 2014)]. The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” [20 U.S.C. § 1415(b)(6)(A)].

A district must pay for the cost of a student’s tuition at a private school if the three prongs of the Burlington/Carter test are met: (1) the DOE denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition. [See Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-15 (1993)].

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

A. The Statute of Limitations and the District’s Motion to Dismiss

The IDEA requires that unless a state establishes a different statute of limitations [“SOL”] period under state law, a party must request a due process hearing within two years of when the party knew or should have known [“KOSHK”] of the alleged action that forms the basis of the complaint; New York has adopted this standard. Since an IDEA claim accrues when a parent knew or should have known about the claim, “[d]etermining when a parent knew or should have known is necessarily a fact-specific inquiry.” [20 U.S.C. § 1415[f][3][C]; see also 20 U.S.C. § 1415[b][6][B]; Education Law § 4404[1][a]; 34 C.F.R. § 300.507[a][2]; 34 C.F.R. § 300.511[e]; 8 NYCRR § 200.5[j][1][i]; Somoza v. New York City Dept. of Educ., 538 F.3d 106, 114-15 & n.8 (2d Cir. 2008); see also K.C. ex rel. J.C.T. v. Chappaqua Cent. Sch. Dist., 2018 WL 4757965, at 14 (S.D.N.Y. 2018)].

In matters of tuition reimbursement and unilateral placement, the Second Circuit has stated that the KOSHK date can be traced back to the time at which the Student is placed at the unilateral placement, or, in other words, when the Student begins their attendance at the Private School. [See M.D. v. Southington Bd. of Educ., 334 F.3d 217, 224 (2d Cir. 2003)]. ^[2]

Further, Application of the New York City Department of Education, Appeal No. 10-014, stated as follows:

“The evidence contained in the hearing record suggests that by September 2006, the parent had committed to his daughter spending her seventh-grade year at Vanguard, and at that point, he knew or should have known that the district was in violation of its obligation to offer the student a FAPE under the IDEA and federal and State regulations because it had not offered the student an appropriate placement prior to the beginning of the school year…Consequently, based upon the evidence contained in the hearing record and the circumstances of this case, I conclude that the parent's claim accrued no later than September 2006, when the student began her 2006-07 school year at Vanguard.” Appeal No. 10-014 (internal citations omitted).

Additionally, the Parent’s 10-day Notice (Ex. A) dated 6/17/2021, states explicitly that “[t]he Parent requests that the CSE contact them immediately to address the above issues and provide an appropriate program and placement to the student prior to [July 1, 2021],” suggesting that the Parent still reserved hope, however remote, of receiving a satisfactory placement. Thus, it was not until July 1, 2021, when the Student began the 2021/22 school year, that the proverbial die was cast, and the Parent knew that the District had failed to provide the Student with an adequate placement.

On this basis, I find that the KOSHK date in this matter was July 1, 2021, the first day the Student was placed unilaterally in the Private School for the school year 2021/22. Accordingly, the District’s statute of limitations defense to the DPC is without merit, and the District’s motion is denied, as the DPC was filed on 6/20/23 within the two-year statute of limitations that would have expired on July 1, 2023. As the Parent did not raise or attempt to assert, in opposition to the motion or at the Hearing, any of the exceptions to the statute of limitations, I need not consider whether any exceptions applied here.

B. Prong I

The IDEA [20 U.S.C. §§ 1400-1482] contemplates two specific purposes designed 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 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, 206-07 (1982)]. 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].

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]), 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]). A free and appropriate public education can be said to be 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; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012); 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. Fla. 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]). The Supreme Court ruled that “[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” [Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 137

S. Ct. 988, 999 (2017)].

Although school districts must comply with the checklist of procedures for developing a student's IEP, “[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 Second Circuit 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. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003)]. Under the IDEA, if procedural violations are alleged, an IHO 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 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].

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], but 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]. Indeed, “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created” [Endrew F., 137 S. Ct. at 1001], and an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents,” is what is required. [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 also Grim, 346 F.3d at 379]. 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] but are required to 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)].

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 Endrew F., 137 S. Ct. at 1001) and designed to be provided in the least restrictive environment (hereinafter, “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 also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); and Walczak, 142 F.3d at 132.]. An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), and outline annual goals specifically designed to address the Student’s needs resulting from his disability to make progress in the general education curriculum (34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]) through the use of appropriate special education services. (34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]). Although not every student can be expected to attend a regular education curriculum, the IEP “must be appropriately ambitious in light of his 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].

The Parent alleged that the District committed a panoply of procedural and substantive violations, specifically, that (1) the IEP team was not duly constituted, (2) the team did not rely on sufficient assessments to determine the Student’s Present Levels of Performance, (3) the IEP recommendations are inconsistent with the District placement letter, and the placement letter is internally inconsistent, (4) the present levels of performance were vague and inadequate, (5) the length of the related services sessions were inadequate, (6) the management needs were insufficient to support the Student, and (7) the program recommended to the Student was supported by the weight of information available to the team. (See generally, Ex. 1).

First, I hold that the IEP team was not duly constituted. “The public agency must ensure that the IEP Team for each child with a disability includes…at least one special education teacher of the child” [34 CFR § 300.321, (emphasis added)]. This applies even to students who are in private schools at the time the IEP is generated. [See T.M. v. N.Y.C. Dep't of Educ., 2015 U.S. Dist. LEXIS 42617, at *16-19 (S.D.N.Y. Mar. 25, 2015), finding that failing to include a special education provider from the Student’s private school “may be a procedural violation.”]. ^[3]

However, the Student’s special education teacher was not included in the meeting. According to the District IEP, three individuals were in attendance: someone labeled a “related service provider/special education teacher,” the Student’s parent, and the District Representative. (Ex. 2, at 38). The name of the “related service provider/special education teacher” on the Student’s District IEP appears nowhere in the record as either the Student’s teacher or one of his providers. (See Ex. B, at 15, 30, and 34; Ex. D, at 1; Ex. M, at ¶ 57). Since not one of the Student’s six private school providers was present at the IEP meeting, I hold that the District failed to properly constitute the CSE team, resulting in a procedural IDEA violation.

Next, the Parent further alleges that the “present levels of performance…did not adequately describe [the Student’s] strengths and weaknesses or the results of up-to-date evaluations.” I agree. The IDEA provides that when a CSE is developing an IEP for a student, the CSE shall consider “existing evaluation data on the child, including (i) evaluations and information provided by the parents of the child; (ii) current classroom-based, local, or State assessments, and classroom-based observations; and (iii) observations by teachers and related service providers.” (20 U.S.C. § 1414[c][1][A]). In addition, the CSE must consider “the results of the initial evaluation or most recent evaluation of the child.” (20 USC § 1414[d][3][A][iii]. See R.B. v. N.Y.C. Dep't of Educ., 15 F. Supp. 3d 421, 429 [S.D.N.Y. 2014]).

Here, Student’s District IEP demonstrates that the CSE did not consider the Student’s most recent evaluations, all conducted in January of 2021. (Compare Ex. 2, at 1-2 with Ex. D, at 2-4.). Instead, the District relied on data from 2020 and 2019, which differs from the 2021 data and includes four fewer assessments than the 2021 data. (Id). Furthermore, the Student’s present levels of performance in the District IEP contain no information regarding remote learning, which would have been in effect during the year preceding the date at which the District IEP was generated. Moreover, the “Teacher Report” included in the District IEP is out of date since 1) it does not mirror its counterpart from the Student’s Private School IEP, 2) the Student had not at that point been involved in public education since the 2016/17 school year, and 3) none of the Student’s private school providers were a part of the CSE meeting. Although the present levels of performance in the Student’s District IEP are detailed, they are not current or “present” [C. v. Middletown Bd. of Educ., No. 3:20-cv-00512 (KAD), 2021 U.S. Dist. LEXIS 186514, at *9 (D. Conn. Sep. 29, 2021)]. Accordingly, I hold that the District committed a procedural violation in failing to include up-to-date present levels of performance in its IEP based on the most recent evaluative data and the most recent reports of the Student’s classroom performance. Had the District done its diligence in properly constituting the IEP team, the present levels of performance in the District IEP would likely have complied with the IDEA mandates.

I must also sustain the Parent’s objections regarding the measurable annual goals in the District’s IEP. Notwithstanding the vague nature of some of the goals, such as “[the Student] will build foundational skills in the areas of alphabetic knowledge, phonological awareness, and vocabulary” (Ex. 2, at 17), it is impossible to determine which, if any, of the goals are appropriate for the Student since the present levels of performance are out of date. The Southern District reached a similar question in C. v. Middletown Bd. of Educ., where the District Court was called upon to decide whether or not the Student had been provided a FAPE for a given school year but had only been provided data for a year not before the Court. The Court stated that:

“[T]he information and data contained in the present record, which would inform the Court's analysis as to whether the Board denied [the Student] a FAPE for the 2019-2020 school year and whether she should have been placed at [the Private School] during that school year, is completely different from the information that would guide the question of whether to grant this relief today. That is, were the Court to reverse the decision of the Hearing Officer and hold that the IEP recommending placement at [the District School] was deficient, it does not follow that the Court could order placement at [the Private School] for 2021-2022 without consideration of [the Student’s] more recent progress and evaluations, which are not part of the record before the Court.” C. v. Middletown Bd. of Educ., at *10.

Here, it is impossible to determine, on this record and without the testimony of a District witness to provide a “cogent and responsive explanation for their decisions that shows” whether the IEP is “reasonably calculated” to allow the child to make progress appropriate in light of his circumstances. (Endrew F. v. Douglas Cty. Sch. Dist.). Specifically, the District failed to present testimony as to how and to what degree the out-of-date measurable goals might apply to the school year at issue and, by extension, whether they are at all appropriate. Accordingly, the District committed a procedural violation in failing to include appropriate measurable annual goals.

Moreover, since the Student is nonverbal and requires assistive technology to communicate (Ex. M, at ¶ 45), I hold that the failure to provide assistive technology constitutes a denial of FAPE. The District failed to recommend assistive technology in either the Student’s IEP or the District’s Notice of Recommendations. (Ex. 2, at 30; Ex. 3). The Eastern District has stated that “On a case-by-case basis, the use of school-purchased assistive technology devices in a child's home or other setting is required if the child’s IEP team determines that the child needs access to those devices to receive FAPE.” (E.F. v. N.Y.C. Dep't of Educ., No. 12-CV-2217 (MKB), 2013 U.S. Dist. LEXIS 117143, at *69 [E.D.N.Y. Aug. 19, 2013] quoting J.C. ex rel. C. v. New Fairfield Bd. of Educ., No. 08-CV-1591, 2011 U.S. Dist. LEXIS 34591, 2011 WL 1322563, at *18 [D. Conn. Mar. 31, 2011]; see also 34 CFR § 300.105). Since the Student’s IEP states that “in one year, [the Student] will express basic wants and needs and make comments with purpose through the use of low-tech communication symbols, a mid tech voice output communication aid and/or a high tech speech generating device during structured activities” (Ex. 2, at 22), there can be no question that the CSE team determined that assistive technology was necessary for the Student to access FAPE, as assistive technology is baked into the Student’s measurable annual goals. Accordingly, the failure to explicitly recommend assistive technology devices to implement the student’s annual goals in either the Student’s IEP or the Notice of Recommendation renders that part of the IEP entirely inaccessible to the Student, constituting a denial of FAPE.

Further, the programmatic recommendations for the Student are, in sum, inappropriate. First, according to the Notice of Recommendations, the program recommended was not based on the IEP produced in 2021 (which is in the record) but rather upon a different IEP produced in July 2020 (which is not in the record). (Ex. 3, at 2). Without this IEP in evidence, the District failed to meet its burden that the Student was provided a FAPE. (See C. v. Middletown Bd. of Educ., at *10). Second, because the IEP contains no recommendations for assistive technology and the Student requires both “high and low-tech AAC” (Ex. M, at ¶ 45) to communicate, any programmatic recommendations without this adaptation must be inappropriate for the Student. Irrespective of any disagreement concerning the merits of the number of sessions of related services that a student requires to augment their education, it is without question that education, let alone educational progress, is impossible without effective, or at least workable, communication.

Finally, the District failed to address why, or whether, its shorter sessions for related services were adequate for the Student’s needs, and as such, whether utilizing related services in 45-minute sessions instead of 60-minute sessions was reasonably calculated to achieve educational benefits for the Student. Indeed, the Parent’s sole witness testified convincingly that the Student required 60-minute sessions because “they allow enough time to be dedicated for extra processing time, necessary breaks, redirection, and repetition, as well as for parent and caregiver education, collaboration, and programming” (Ex. M, at ¶¶ 51-53), and the Student’s mother spoke up at the IEP meeting to request the same. The Parent was told, however, that “we are doing a public school recommendation” (Ex. 2, at 38). Therefore, no substantive explanation was given to the Parent at the IEP meeting or subsequently at the Hearing for either the District’s determination that 45-minute sessions were reasonably calculated so that the Student would progress in this truncated time period. Again, the lack of a District witness to “offer a cogent and responsive explanation” for the CSE’s decisions regarding the IEP was glaring.

Based on the totality of the evidence, I hold that the District failed to meet its burden of proof as to Prong I of the Burlington/Carter standard. According to the Supreme Court, “a reviewing court may fairly expect [public] authorities 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. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 404 (2017)]. In the instant case, the District rested on its exhibits to support its assertion that it had provided the Student with a FAPE. (See generally, Hearing Tr.). Thus, the apparent procedural violations listed above and the substantive inappropriateness for the Student of certain aspects of the recommended program went entirely unexplained and unmitigated. Accordingly, for the above reasons, I hold that the District failed to offer the Student a FAPE for the 2021/22 school year.

C. Prong II

A private school placement must be “proper under the Act.” [Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370]. This means that the Private School must offer an educational program that meets the student’s special education needs. [See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); and Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998)]. 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]. Additionally, “[s]ubject 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)].

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]. Instead, they need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a student with a disability, supported by such services as are necessary to permit the child to benefit from instruction. [Gagliardo, 489 F.3d at 112 citing Frank G., 459 F.3d at 364-65]. 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 C.F.R. § 300.39(a)(1); 8 NYCRR § 200.1(ww); Hardison, 773 F.3d 386].

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 benefits. Still, 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. 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; and see Gagliardo, 489 F.3d at 115].

In this case, the Private School meets the Frank G. standard and “provides educational instruction specially designed to meet the unique needs” of the Student that will enable him to make progress. First, the Private School provides the Student with small class sizes, which he needs and benefits from. Second, the Private School provides trained teachers who can support the Student. Third, the Private School individualizes its instruction for the Student by providing copious adaptations that the Student needs. Finally, the Student is making progress at the Private School. I will discuss each in turn.

First, the Private School is appropriate because of its smaller class sizes. Small class sizes can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement. [Frank G., 459 F.3d at 365 citing Knable v. Bexley City Sch. Dist., 238 F.3d 755, 768 (6th Cir. 2001)]. Small class sizes at a unilateral placement “come[] within the IDEA definition of ‘special education,’ namely, ‘specially designed instruction . . . to meet the unique needs of a child.’” [Frank G., 459 F.3d at 365 (citing 20 U.S.C. § 1401(29)]. For the 2021/22 school year at the Private School, the Student was placed in an 8:1:1 ratio with extensive related services, monthly parent training, and specialized door-to-door transportation with a 1:1 paraprofessional and limited travel time. (Ex. M, at ¶ 47). Therefore, based on this educational program with the enumerated supports as evidenced in the record, I hold that these factors establish the appropriateness of the private school placement.

Second, the Private School is appropriate because it provides trained teachers to support the Student. The law in this circuit is that “a private placement need not provide certified special education teachers…for the disabled student,” but the Private School nevertheless ensures that its teachers have the training and specialization necessary to teach the Student based on her needs. [Frank G., 459 F.3d at 364]. The staffing at the Private School includes “11 teachers…and 48 related service providers.” (Ex. M, at ¶ 10). All the related service providers are licensed.” (Id). The Student’s teacher for the 2021/22 school year has a Master’s Degree in education in “Severe & Multiple Disabilities” and “holds New York State certifications in Elementary Education, Students with Disabilities, and Early Childhood Education. (Ex. M, at ¶ 57). Accordingly, I hold that the teachers have sufficient training to teach the Student based on his needs.

Third, the Private School is appropriate because it individualizes its instruction for the Student by providing copious adaptations that the Student needs. When a teacher at the unilateral placement adapts instruction (for example, working one-on-one with the student, creating a communications book, giving the student extra time to complete work, allowing the student to work in isolated areas of the classroom, adapting tests to allow the student to take them orally), these factors weigh in favor of the appropriateness of the parent’s unilateral placement. (Frank G., 459 F.3d at 365-66). The Student requires “significant adaptations” such as “adapted materials,” a small class size, “high and low tech communication access,” “intensive occupational, physical, and speech-language therapy,” “limited tactile distractions,” “clear routine and advance notice of activities,” “extended wait time for response,” extended and frequent breaks, “movement breaks,” a visual schedule, “consistent locations and clear delineation for his materials and tools,” among many other adaptations. (Ex. M, at ¶¶ 46-49). At school, the Student uses an adapted activity chair in the classroom and “low tech AAC” to communicate. (Ex. M, at ¶ 45). The Student requires sixty (60) minute related services sessions because “they allow enough time to be dedicated for extra processing time, necessary breaks, redirection, and repetition, as well as for parent and caregiver education, collaboration, and programming. (Ex. M, at ¶¶ 51-53). Because of these aspects of the program that are tailored to the student’s individual educational needs, I accordingly hold that this factor also weighs in favor of the placement’s appropriateness.

Finally, the Private School is appropriate because the Student is making progress. Significant educational progress can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement. (Frank G., 459 F.3d at 365 citing Knable, 238 F.3d at 768). While a student’s progress at the private placement is not by itself sufficient to determine whether a placement is appropriate, that progress is a relevant factor in assessing the appropriateness of the placement. (Weaver v. Millbrook Cent. Sch. Dist., 812 F. Supp. 2d 514, 523 (S.D.N.Y. 2011)]. The student’s progress reports for the 2021/22 school year report progress across virtually all domains. (Ex. C). Specifically, he achieved progress across the social/emotional, academic (reading, writing, and math), speech-language therapy, occupational therapy, and physical therapy. (Ex. M, at ¶¶ 60-64). I find credible the testimony of the Principal of the Private School that the Student’s program was “reasonably calculated to enable him to derive educational benefit and make appropriate progress” and that in the 2021/22 school year, the Student “demonstrated appropriate, measured progress on his goals and in all areas of his program.” (Ex. M, at ¶¶ 65-66). Accordingly, the Student’s uncontroverted progress suggests that the Private School is appropriate to meet the Student’s needs.

I hold that the weight of the evidence establishes that the Private School addressed Student’s individual special education needs, and that the instruction offered there was “reasonably calculated to enable the child to receive educational benefits.” (Frank G., 459 F.3d at 364). As a result of the above, I hold that Parent has satisfied her burden in proving that the Private School offered an educational program that met the Student’s needs under Prong II of the Burlington/Carter standard.

D. Prong III

Under the third and final prong of the Burlington/Carter test, courts consider “equitable factors” relevant to an order of tuition. [Gagliardo, 489 F.3d at 112]. “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [Department] throughout the process to ensure their child receive[s] a FAPE.” [Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007)]. Specifically, equitable considerations include the parents’ participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the DOE. [See D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 (S.D.N.Y. 2011)].

In this case, the Parent cooperated with the District and is entitled to full reimbursement. First, the Parent participated in the 6/07/2021 IEP meeting. [Ex. 2, at 38; M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 254 (2d Cir. 2012) (holding that when a parent attends the IEP meeting, this is one fact among others that weighs in favor of the parent’s request for a tuition award under Prong III of the Burlington/Carter test)]. Additionally, on 6/17/2021, the Parent provided the necessary ten days notice of her concerns with the District’s offer of FAPE for the Student for the 2021/22 school year and her intent to unilaterally place the Student in the Private School absent a satisfactory placement. [34 C.F.R. § 300.148(d)(1)(ii); Ex. A].

By way of relief, the Parent seeks direct retrospective tuition funding at the Private School. Direct retrospective tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. [See, e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011), holding that parents may seek direct funding in the instance in which “due to a lack of financial resources, (parents of a student with a disability) have not made tuition payments but are legally obligated to do so.”]. In light of the Parent’s uncontroverted inability to pay the full cost of tuition, as illustrated by the Parent’s tax return (Ex. I), I find that direct funding of tuition to the Private School is appropriate for the balance of the tuition not already paid by the Parent, as well as reimbursement to the Parent for tuition payments already made. Indeed, equity demands that the DOE fund Student’s Private School tuition in this instance.

I find no issue with the reasonableness of the tuition amount. “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.” [Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16, 114 S. Ct. 361 (1993); see also J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) “[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”]. Here, tuition at the Private School for the 12-month program is $193,980 for the 2021/22 School year. I hold that this tuition is reasonable in light of the small class sizes, the highly trained teachers, the highly specialized nature of the program, and the sheer number of separate services the Student requires to make educational progress. (See generally, Exs. 1, D, M).

After considering the record at the hearing, I hold that the equities support the Parent’s claim for the cost of tuition and order the District to fully reimburse the Student’s tuition for the 2021/21 school year.

ORDER

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

1. Within 35 days of the date of this Order, the District shall fund the balance of the Student’s tuition to the Private School still outstanding for the 2021/22 school year, and reimburse the Parent for the amounts already paid towards the same, for a total cost not to exceed $193,980. The DOE shall not require any documentation that is not already in the hearing record to issue payment to the Parent or the Private School.

SO ORDERED.

DATED: 10/16/2023

Paul DeSena

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

Term Used In FOFD [REDACTED] Information

Student [REDACTED]

Parent/Guardian [REDACTED]

Parent Attorney/Representative [REDACTED]

District Attorney/Representative [REDACTED]

Private School [REDACTED]

District [REDACTED]

Principal of the Private School [REDACTED]

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Notice of Unilateral Placement 6/17/2021 3 pages

B. Evaluations 2021-2022 SY Various 34 pages

C. Quarterly Progress Report 2021-2022 6/27/2022 9 pages

D. Recommended IEP 2021-2022 Summer 6/3/2021 25 pages

E. Remote Learning Program Description 2021 8 pages

F. Program Description Undated 10 pages

G. Daily Classroom Schedule 2021-2022 2 pages

H. Attendance Record Various 13 pages

I. US Individual Tax Return 9/21/2021 9 pages

J. Proof of Payment 9/10/2021 1 page

K. Payment Affidavit 9/22/2021 1 page

L. Enrollment Contract 5/28/2021 5 pages

M. Affidavit of [REDACTED] 9/11/2023 20 pages

DOE EXHIBITS

1. Due Process Complaint 6/16/2023 6 pages DOE

2. Individualized Education Program 6/7/2021 38 pages DOE

3. Prior Written Notice 6/14/2021 4 pages DOE

4. School Location Letter 6/14/2021 2 pages DOE

IHO EXHIBITS

August

1. Motion Practice and Exhibits 69

2023

Footnotes

[1] A detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.

[2] But see Perry A. Zirkel, Of Mouseholes and Elephants: The Statute of Limitations for Impartial Hearings Under the Individuals with Disabilities Impartial Hearings Under the Individuals with Disabilities Education Act, JOURNAL OF THE NATIONAL ASSOCIATION OF ADMINISTRATIVE LAW JUDICIARY ADMINISTRATIVE LAW JUDICIARY, Vol. 35, Issue 2, Art. 2, n31 (April 1, 2016) (stating that “defining the KOSHK date in tuition reimbursement cases…as the time of the unilateral placement, e.g., R.B. v. Dep’t of Educ. of N.Y.C., 57 IDELR ¶ 155, at *4 (S.D.N.Y. 2011) [citing M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 (2d Cir. 2003)…is imprecise because 1) it is not necessarily identical to the underlying action, and 2) the date of the unilateral placement arguably could be the date of deposit, the date of the end of the school year, or the first day of attendance at the private school.”].

[3] See also A.M. ex rel. Y.N. v. N.Y.C. Dep't of Educ., 964 F. Supp. 2d 270, 279-80 (S.D.N.Y. 2013), citing 34 CFR § 300.32, which held that while the participation of the child's mother and other private school providers enabled the CSE team to obtain information specific to the Student, that nevertheless, the Plaintiff had made out a procedural violation by not including the special education teacher “of the child;” and see R.B. v. N.Y.C. Dep't of Educ., 15 F. Supp. 3d 421, 430 (S.D.N.Y. 2014), which held that not including a special education teacher of the student may have resulted in a procedural violation but not so long as the CSE had additional members from the private placement with sufficient information about the student in order to make a reasonable recommendation. The New York State Commissioner’s regulations also mirror the requirements of the CFR. [see 8 NYCRR § 200.3(a)(1)(iii)].