Impartial Hearing Decision

CASE NUMBER: 251092

FINDINGS OF FACT AND DECISION

Case Number: 251092

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

School District: NYC DOE

Hearing Requested by: Parent

Request Date/Date Complaint Filed: 07/06/2023

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

Actual Record Closed Date: 11/17/2023

Date of Decision: 11/18/2023

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 2023/24 school year, attending the Private School. (Ex. A, at 1). 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 2023/2024 school year. (Ex. A, at 1).

The Parent requests tuition reimbursement for the 2023/24 school year for Student’s private program not approved by the Commissioner of Education for the education of students with disabilities, as well as an Independent Neuropsychological Evaluation. (Id., at 8).

As discussed below, I find that the District failed to provide the Student a FAPE for the 2023/24 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. Finally, I find that a neuropsychological evaluation of the Student is warranted pursuant to 8 NYCRR 200.5(g)(2).

PROCEDURAL HISTORY

The Parent filed this case on 7/06/2023. (Ex. A). I was appointed to hear this case on 8/24/2023. I conducted a Pre-Hearing Conference [hereinafter, “PHC”] with the Parties on 9/11/2023. (See generally PHC Tr.). A hearing was held on 10/10/2023. (See generally, Hearing Tr.). The Parent and the District were represented by counsel (Id.). A Spanish-language interpreter was required for the Parent. (Id.).

At the hearing, the District introduced exhibits 1-14 into evidence, called no witnesses, made an opening statement, and cross-examined the Parent’s witnesses. (See generally, Hearing Tr.). ^[1] Specifically, the District contested that the Parent’s unilateral placement was appropriate for the Student, that the equities balanced in the Parent’s favor, and that the Student’s private transportation was appropriate. (Id, at 55-59).

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, C-G, and J-N into evidence.^[2] (Id., at 45-50). The Parent’s attorney delivered an opening statement. (Id., at 59-62). The Parent called two witnesses, the Student’s Parent, and the Deputy Director of the Private School (by affidavit). (Exs. M, N).

At the Hearing, counsel for the District and the Parent were directed to issue closing briefs. (Hearing Tr., at 93-99). The Parent issued their closing brief on 10/20/2023. (IHO Ex. I). The District did not submit a closing brief, effectively waiving its closing. 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 2023/24 school year, the Student was a 13-year-old student who attended the Private School. (Ex. N, at ¶¶ 9-11). The 2023/24 school year was the Student’s third year in the Private School. (Ex. N, at ¶ 11). Student is diagnosed with quadriplegic spastic cerebral palsy. (Ex. 1, at 22). The Student also “suffers from traumatic brain injury, resulting in severe impairments in the following areas: language, memory, attention, sensory, motor abilities, and information processing and speech.” (Ex. N, at ¶ 9). The Student is “non-verbal,” “non-ambulatory,” and requires “a significant degree of individualized attention and intervention throughout the day.” (Ex. N, at ¶ 10). The Student “has a baclofen pump implantation which delivers baclofen to his spinal cord to reduce moderate to severe spasticity.” (Ex. 5, at 1). A malfunction of this pump would necessitate immediate emergency medical care, and could, if such care is not promptly provided, result in the death of the Student. (Hearing Tr., at 89). The Student is dependent on a caregiver “24 hours a day for all personal care and activities of daily living.” (Ex. M, at ¶ 4; Ex. 5, at 39).

Prior to the beginning of the 2023/24 school year, the Private School issued a report on 3/28/2023 entitled “Recommended Individualized Education Plan.” (Ex. 5, at 1). This report provided granular details on the Student in its sections entitled “Present Levels of Performance.” (See generally, Ex. 5). These “Present Levels of Performance” covered the core areas of cognitive, physical, social, and academic functioning, and included detailed present levels in the Student’s related services, including speech and language, occupational therapy, music therapy, physical therapy, and assistive technology. (Ex. 5, at 1-39). In this report, the Student’s “management needs,” including the Student’s “health management needs,” the latter of which are required to promote the Student’s academic, social, and physical achievement, as well as the Student’s overall health, are recorded in detail. (Ex. 5, at 40-48). Alongside the Student’s “health management needs,” the Student’s “nursing diagnosis,” “nursing interventions,” and “goals” are all spelled out in detail. (Ex. 5, at 42-46). The Student’s annual goals are also listed in this report, and there are annual goals for each of the core areas of functioning as well as for each one of the Student’s related service providers. (Ex. 5, at 48-66). Following the goals, the report listed affirmative recommendations for transportation, extended school year, and whether the Student would receive the services listed in the report for the “regular” school year. (Ex. 5, at 67-71).

The Report also set out a “Summary of Recommended Special Education Program/Services,” which is, in sum and substance, as follows (Ex. 5, at 68-69):

• 12-month program

• 8:1:1 classroom, 1 period per session, for an extended day, in a Special Education

Classroom

• 1:1 Occupational Therapy five times per week for 60 minutes per session (push in/pull out)

• 1:1 Physical Therapy five times per week for 60 minutes per session (push in/pull out)

• 1:1 Speech Language Therapy four times per week for 60 minutes per session (push in/pull out)

• Group Speech Language Therapy once per week for 60 minutes per session (push in/pull out)

• Music Therapy on a 1:1 (3x) and Group (1x) basis four times per week for 60 minutes per session (push in/pull out)

• Parent Training/Counseling on an individual and group basis, once per month for 60 minutes per session

• A 1:1 paraprofessional daily, full time, in all environments

• 1:1 Assistive technology services once per week for 60 minutes per session

• The following assistive technology devices

AAC Device

AAC wheelchair mount

Switches

Switch mounts

Computer

Computer-Switch Interface

Eye Gaze Communication Software

Adaptive Seating with Mounting Options

• The following “supports for school personnel on behalf of the Student

Training for use of AAC

Training for use of braces/orthotics

Training for safe feeding techniques

Training for seizure safety

Training for use of direct instruction

Under the section of the Report entitled “other options considered,” the Report reads as follows:

“12:1:4 Program: A 12:1:4 class in a NYC DOE specialized public school would not be appropriate for this Student because these classes do not offer the support and supervision needed to address the Student’s highly intensive management needs. The Student needs additional support in order to remain engaged in the academic and therapeutic activities and regulated throughout the day. A 12:1:4 class is insufficient to address the Student’s needs because it is too large a ratio to ensure the constant 1:1 support and monitoring Student requires in order to remain safe and does not offer the 1:1 direct instruction and academic support the Student requires to make any progress under the IEP. (Ex. 5, at 67).

On 4/17/2023, the District held the IEP meeting. Parent and several of the Student’s providers from the Private School were present at the meeting, in addition to required District personnel. (Ex. 1, at 55). The vast majority of the District’s IEP, including the Student’s Present Levels of Performance, Management Needs, and Measurable Annual Goals, match the Student’s Private School IEP, word for word. (See generally, Ex. 1). Narrative text original to the District IEP only appears in small amounts on pages 7 and 23 of the document. (Id.). Otherwise, the District IEP is essentially a copy of the Private School Report. (Compare Ex. 5 with Ex. 1).

On 6/20/2023, the Parent, having not received a Final Notice of Recommendation from the District, sent the District a 10-day notice. (Ex. D). This notice avers, inter alia, that the proposed IEP was not “designed to enable the Student to receive educational benefits or receive appropriate related services.” (Id., at 2). Further, the notice states that “[t]he proposed District 75 public school placement recommendations cannot be implemented, as proposed in the [IEP], during the regular school day.” (Id.). Finally, the notice states that “[the Parent and the Student] remain willing and ready to entertain an appropriate DOE program and an appropriate public or approved non-public school placement that can provide the required intensive academic and related services program [the Student] requires.” (Id.). On 9/21/2023, well after the Student’s first day of school at the Private School, July 5th (Ex. 8), the District sent a Final Notice of Recommendation [hereinafter, “Placement Letter”] noticing the Parent of the Student’s placement for the 2023/24 extended school year, which, by that time, was already well underway. (Exs. 2, 8). The District made many of the same recommendations as the Private School Report, with the exception of recommending a 12:1:4 classroom instead of the Private School’s 8:1:1, and not recommending support for staff, any specifically enumerated assistive technology, or music therapy. (Compare Ex. 5 with Ex. 2).

The Private School is a “private and highly specialized special education program in New York City created for children who suffer from acquired brain injuries or brain-based disorders. (Ex. N, at ¶ 5). The Private School “has an extended 12-month school year calendar and offers all services during its extended school day, which runs from 8:30 AM to 5:00 PM.” (Id.) It is an “interdisciplinary program for school-aged students, many of whom are non-verbal and non-ambulatory.” (Id.) The Student is currently in a 8:1:1 classroom setting, which minimizes distractions and enables [the Student] to attend, receive educational benefits, and make progress. (Ex. N, at ¶ 13). The Student’s class is comprised of Students who have “similar needs and abilities.” (Ex. N, at ¶ 13). The Student receives “an extensive regimen of related services, including OT 5x a week, PT 5x a week, SL 5x a week, AT 2x per week, and music therapy 4x per week, all delivered in 60-minute sessions. (Id.) The Student “requires the assistance of a 1:1 paraprofessional throughout the day.” (Id.) For the 2023/24 school year, the Student’s speech therapy providers all have their Master’s Degrees, the Student’s Occupational Therapist has her Master’s, the Student’s Assistive Technology provider has her Master’s, the Student’s music therapist has her Master’s, and the Student’s PT provider has her DPT. (Ex. 5, at 70). Additionally, the School Nurse is a Registered Nurse. (Id.)

The Director of Special Education at the Private School stated that “over the past school year, [the Student] has made progress in skills across academic and related service domains in her educational program.” (Ex. N, at ¶ 15). The Student’s Parent stated that the Student “has made progress at [the Private School]. (Ex. M, at ¶ 13).

The tuition at the Private School for the 12-month program is $293,464.00 for the 2023/24 School year, which includes the base tuition, a 1:1 paraprofessional, and all related services. (Ex. F, at ¶¶ 4-7). The total cost for the Student’s Transportation for the 2023/24 school year is $192,930.00. (Ex. G, at § 6). The total cost for the Private School and transportation to and from the same for the 2023/24 school year is thus $486,394.00. The Parent testified that “it would be virtually impossible for our family to pay the cost of [the Private School] and transportation costs upfront and then wait for reimbursement.” (Ex. M, at ¶ 14).

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. 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).

Although federal and State regulations do not expressly state that a district must provide a written notice to the parents in any particular format describing the "”bricks and mortar” location to which a student is assigned and where the student's IEP will be implemented, once an IEP is developed and a parent consents to a district's provision of special education services, the IDEA is clear such services must be provided to the student by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR § 300.320). When determining how to implement a student’s IEP, the assignment of a particular school is an administrative decision, provided it is made in conformance with the CSE's educational placement recommendation (see K.L.A. v. Windham Southeast Supervisory Union, 371 Fed. App'x 151, 154, 2010 WL 1193082, at *2 [2d Cir. Mar. 30, 2010]; White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 [5th Cir. 2003]; see Veazey v. Ascension Parish Sch. Bd.,

121 Fed. App'x 552, 553 [5th Cir. Jan. 5, 2005]; A.W. v. Fairfax Co. Sch. Bd., 372 F.3d 674, 682 [4th Cir. 2004]; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 [2d Cir. 1980]). To be clear there is no requirement in the IDEA that a student's IEP name a specific school location (see, e.g., T.Y., 584 F.3d at 420). Moreover, parents generally do not have a procedural right in the specific locational placement of their child (see Luo v. Baldwin Union Free Sch. Dist., 2013 WL 1182232, at *5 [E.D.N.Y. Mar. 21, 2013], aff'd, 556 Fed. App'x. 1, 2013 WL 6726899 [2d Cir Dec. 23, 2013]; J.L. v. City Sch. Dist. of New York, 2013 WL 625064, at *10 [S.D.N.Y. Feb. 20, 2013]; see also R.E., 694 F.3d at 191-92 [finding that a district may select a specific public school site without the advice of the parents]; F.L. v. New York City Dep't of Educ., 2012 WL 4891748, at *11 [S.D.N.Y. Oct. 16, 2012] [noting that parents are not procedurally entitled to participate in decisions regarding public school site selection]).

There is, however, district court authority indicating that a parent has a right to obtain information about an assigned public school site (see H.L. v. New York City Dep't of Educ., 2019 WL 181307, at *9 [S.D.N.Y. Jan. 11, 2019] [noting that "[i]n light of M.O., courts have found that parents have the right to obtain timely and relevant information regarding school placement, in order to evaluate whether the IEP can be implemented at the proposed location"]; F.B. v New York City Dep't of Educ., 132 F. Supp. 3d 522, 538-45 [S.D.N.Y 2015] [finding that the parents "had at least a procedural right to inquire whether the proposed school location had the resources set forth in the IEP"]; V.S. v New York City Dep't of Educ., 25

F. Supp. 3d 295, 299-301 [E.D.N.Y. 2014] [finding that the "parent's right to meaningfully participate in the school selection process" should be considered rather than the "parent's right to determine the actual school selection"]; C.U. v. New York City Dep't of Educ., 23 F. Supp. 3d 210, 227-29 [S.D.N.Y. 2014] [holding that "parents have a procedural right to evaluate the school assignment" and "acquire relevant information about" it]).

Although not explicitly stated in federal or State regulation, implicit in a district's obligation to implement an IEP is the requirement that, at some point prior to or contemporaneous with the date of initiation of services under an IEP, a district must notify parents in a reasonable fashion of the bricks and mortar location of the special education program and related services in a student's IEP (see T.C. v. New York City Dep't of Educ., 2016 WL 1261137, at *9 [S.D.N.Y. Mar. 30, 2016] [“a parent must necessarily receive some form of notice of the school placement by the start of the school year”]; Tarlowe, 2008 WL 2736027, at *6 [a district's delay does not violate the IDEA so long as a public school site is found before the beginning of the school year]). While such information need not be communicated to the parents by any particular means in order to comply with federal and State regulation, it nonetheless follows that it must be shared with the parent before the student's IEP may be implemented. Furthermore, as the Southern District provided in T.C. v. N.Y.C. Dep't of Educ., 15-CV-3477 [VEC] [S.D.N.Y. March 30, 2016]: “There is no requirement that a parent receive written notice of a school placement before the beginning of the school year…[n]onetheless, in order to provide a FAPE, a parent must necessarily receive some form of notice of the school placement by the start of the school year. (Id. [internal citations omitted]).

The Parent alleges that the District committed a number of procedural and substantive violations, specifically, inter alia, that (1) District failed to send a Placement Letter prior to the start of the 2023/24 school year (2) the District failed to heed any of the Parent’s concerns in developing the IEP or in issuing the placement and (3) the District never attempted to correct any of the deficiencies Parent noted following the 10-day notice. (See generally, Ex. A).

In the instant matter, the record is clear that though the District held an IEP meeting which the Parent attended, the District failed to send the Parent a Placement Letter until after both the District’s and Private School’s extended, and, indeed, 10-month, school years had begun. (Exs. 2, D, 8). Accordingly, as of the first day of extended school year, the Parent had no real choice as to where to send her son to school: the Private School was available, and the District had failed to send a Placement Letter notifying the Parent where the Student’s IEP services could be accessed. See Application of a Student with a Disability, Appeal No. 22-150. Accordingly, I hold that, in failing to send a Placement Letter by the beginning of the Student’s extended school year, the District denied the Parent the opportunity not only to visit the proposed brick and mortar location, but also to investigate whether or not the placement could actually implement the Student’s IEP as written. In doing so, the District denied the Student a FAPE for the 2023/24 school year.

The above holding comports with Appeal No. 22-150, which on facts very similar to the instant matter, found that the District’s failure to provide a Placement Letter by the beginning of the school year resulted in a denial of FAPE:

“[The District’s failure to send Parent a Placement Letter] constitutes a procedural error, which under the circumstances presented resulted in the parent being provided with too little information as to how or where the recommended special education program would have been implemented and, therefore, resulted in a denial of FAPE.” Application of a Student with a Disability, Appeal No. 22-150.

Alternatively, I also hold that the District’s IEP is both substantively and procedurally inadequate, insofar as it is essentially a word-for-word copy of a nearly identical document generated by the Private School. (Compare Ex. 5 with Ex. 1). 34 C.F.R. § 300.324[a][1] provides that, in developing an IEP, the District must consider (emphasis mine) “[t]he strengths of the child…[t]he concerns of the parents for enhancing the education of their child…[t]he results of the initial or most recent evaluation of the child…[t]he academic, developmental, and functional needs of the child.” Given that the District’s IEP is a regurgitated copy of a Report completed by a private entity, there is no evidence, on this record, that the District considered anything related to the child. The only narrative text unique to the District IEP comes in snippets on two separate pages of a 55-page document. Perhaps a District witness could have offered a “responsive and cogent explanation” (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 404 [2017]) for this state of affairs, but none was proffered. Given the text and tenor of the applicable statutes and regulations, however, it beggars belief that it could possibly be permissible for the District to so completely abdicate its role in the education of the Student and in the development of the IEP. See generally, 34 C.F.R. § 300.324.

Finally, despite the fact that, instead of generating or revising an IEP on its own for the 2023/24 school year, the District instead simply copied, word for word, the Private School Report from the same year, the District IEP still manages to be substantively inappropriate for the child. Indeed, though the District made many of the same recommendations as the Private School Report, it failed to recommend support for staff, any specifically enumerated assistive technology, or music therapy. (Compare Ex. 5 with Ex. 1). Where, as here, the Student depends upon assistive technology not only to communicate, but for bodily movement and to access his education (See generally, Ex. 5), the failure to recommend at least some of the specific interventions the Student requires is 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.

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.). These exhibits were, to say the last, insufficient to allow the District to carry the day. Thus, the apparent procedural violations listed above and the substantive inappropriateness for the Student of the District’s IEP went entirely unexplained and unmitigated. Accordingly, for the above reasons, I hold that the District failed to offer the Student a FAPE for the 2023/24 school year.

B. 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]). The Student is currently in a 8:1:1 classroom setting, which minimizes distractions and enables [the Student] to attend, receive educational benefits, and make progress. (Ex. N, at ¶ 13). The Student’s class is comprised of Students who have “similar needs and abilities.” (Ex. N, at ¶ 13). Therefore, based on this educational program, I hold that this factor tends to 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). For the 2023/24 school year, the Student’s speech therapy providers all have their Master’s Degrees, the Student’s Occupational Therapist also has her Master’s, the Student’s Assistive Technology provider has her Master’s, the Student’s music therapist has her Master’s, and the Student’s PT provider has her DPT. (Ex. 5, at 70). Additionally, the School Nurse is a Registered Nurse. (Id.) Accordingly, I hold that the Student’s providers 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 receives “an extensive regimen of related services, including OT 5x a week, PT 5x a week, SL 5x a week, AT 2x per week, and music therapy 4x per week, all delivered in 60-minute sessions. (Id.) The Student “requires the assistance of a 1:1 paraprofessional throughout the day.” (Id.). Furthermore, the Student’s Private School Educational Report sets forth, in exhaustive detail, the adaptations the Student receives core area by core area and related services provider by related services provider. (Ex. 5, at 1-40). 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 Director of Special Education at the Private School stated that “over the past school year, [the Student] has made progress in skills across academic and related service domains in her educational program.” (Ex. N, at ¶ 15). The Student’s Parent stated that the Student “has made progress at [the Private School]. (Ex. M, at ¶ 13). 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.

Furthermore, I hold that the Student’s transportation arrangements with the Private School are also appropriate. Indeed, nothing in the record suggests otherwise, and the Parent’s contract with the Transportation Provider relates that the Provider will supply an air-conditioned vehicle with “regular wheelchair accessibility” along with “sitting space to accommodate a person to travel with the Student, as needed.” (Ex. G). Additionally, the Provider is also responsible for supplying, in addition to a driver for the vehicle, a “1:1 transportation paraprofessional.” (Id.). These recommendations are in line with the Private School’s transportation recommendations, and so, I hold that the Student’s private transportation arrangements are appropriate under Prong II of the Burlington/Carter standard.

C. 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 IEP meeting dated 4/17/2023. (Ex. 1; 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 6/20/2023, the Parent provided the necessary ten-day notice of her concerns with the District’s offer of FAPE for the Student for the 2023/24 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. D).

By way of relief, the Parent seeks direct tuition funding at the Private School. Direct 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.”]. The Parent testified that “it would be virtually impossible for our family to pay the cost of [the Private School] and transportation costs upfront and then wait for reimbursement.” (Ex. M, at ¶ 14). This statement went uncontroverted at the Hearing. (See generally, Hearing Tr.). In light of the Parent’s uncontroverted inability to pay the full cost of tuition, 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 any 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] [stating that “this 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 $293,464.00 for the 2023/24 School year, which includes a panoply of related services. (Ex N, at ¶ 15; Ex. F). I hold that this tuition is reasonable in light of the small class sizes, the well-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. C, F, J, K).

By way of relief, the Parent also seeks direct funding of transportation at the Private School. Despite the District’s insinuations to the contrary, I can find no rule requiring the Parent to find the cheapest transportation options for their child. Given the failure of the District to put in any evidence of what the proper market rate is in the City of New York for the type of specialized transportation the Student requires, I can find no fault with the transportation cost for the student of approximately $885 per day (See Ex. G, at §§ 1, 6), or $192,930 for the 2023/24 school year. I hold that this cost is reasonable in light of the demonstrable appropriateness of the transportation the Student is receiving.

Turning to the rest of the District’s arguments on this point, I can see, first, no reason why this particular Student should be compelled to seek out transportation services at the “Medicaid” rate. (Ex. 10, at 73). The District has adduced no evidence in this Hearing that the Student was even eligible for any Medicaid services. Indeed, as the SRO decision Application of a Student with a Disability, Appeal No. 22-056 states on this point, “Medicaid rates and the student's eligibility for similar Medicaid services may be relevant factual areas of inquiry, but simply assuming that the parents would be able to privately contract for the same services at the ‘lowest Medicaid’ rate without evidence is an unsound basis upon which to formulate relief.” Accordingly, I decline to reduce the transportation award on this basis.

Further, I decline to reduce the Student’s transportation award on the basis of absenteeism. The District insinuated, during the course of the Hearing, that since the Private School would mark a Student absent whether or not they attended in person or via telehealth services, the transportation award should be reduced accordingly. (See generally, Hearing Tr.). On this record, however, I can find no evidence that the Student actually was chronically absent from the Private School or that the Student’s transportation award should be reduced on this basis. Accordingly, I decline to do so.

After considering the record at the hearing, I thus hold that the equities support the Parent’s claim for the cost of tuition and transportation and order the District to fully fund the Student’s tuition and transportation for the 2023/24 school year.

D. Neuropsychological IEE

The Student requests, in their DPC, a neuropsychological IEE. (Ex. A, at 8). For the reasons that follow, while I decline to find that, as a matter of law, the Student is entitled to this IEE, I nevertheless exercise my discretionary authority pursuant to 8 NYCRR § 200.5[g][2] and award the Student with a neuropsychological IEE.

If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense. (8 NYCRR § 200.5[g][1]). If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either 1) ensure that an IEE is provided at public expense; or 2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv] [emphasis added]). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although the district will not be required to provide it at public expense. (See 34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]; see also A.H. v. Colonial Sch. Dist., 2019 WL 3021232, at *3 [3d Cir. July 10, 2019]). Additionally, both federal and State regulations provide that “[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees.” (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]).

In the instant matter, Parent is not entitled to an IEE according to the above provisions. First, it is wholly unclear, even from the DPC, which, if any, evaluations are the subject of Parent’s disagreement. (Ex. A, at 6). Indeed, in the instant matter, the issue seems to be the lack of recent, useful evaluations: the Student’s last psychoeducational evaluation was conducted in 2019 and includes no recommendations for the Student. (Ex. 11). Accordingly, while I am constrained to find that, as a matter of law, the Parents are not entitled to a neuropsychological IEE, given the Student’s current diagnosis and the importance of clear, up-to-date information upon which educational institutions must necessarily formulate their education plans for the Student, I find that, pursuant to my discretionary authority and 8 NYCRR § 200.5[g][2], a neuropsychological IEE is warranted.

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 2023/24 school year and reimburse the Parent for the amounts already paid towards the same, for a total cost not to exceed $293,464.00. 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.

2. Within 35 days of the date of this Order, the District shall fund the balance of the Student’s transportation costs still outstanding for the 2023/24 school year and reimburse the Parent for the amounts already paid towards the same, for a total cost not to exceed $193,980.00. The DOE shall not require any documentation that is not already in the hearing record to issue payment to the Parent or the Transportation Company.

3. Within 35 days of the date of this Order, a neuropsychological IEE of the student shall be completed at a reasonable market rate with a provider of the parent’s choosing. Within 35 days of receipt by the DOE of an invoice for services rendered, the DOE shall directly fund the provider for the IEE.

4. After the IEE is completed, the CSE shall reconvene within 30 days and consider the findings of the IEE in crafting goals and recommendations for the student.

SO ORDERED.

DATED: 11/18/2023

Paul J. 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]

Deputy Director of the Private School [REDACTED]

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Due Process Complaint IH # 251092 7/5/2023 9 pages

C. B. Not admitted into the record N/A N/A [REDACTED] IEP 2023-2024 School Year 3/28/2023 71 pages

D. Ten Day Notice 6/20/2023 2 pages

E. Pendency Implementation Form 7/2/2023 2 pages

F. [REDACTED] enrollment contract 2023-2024 School Year 7/1/2023 6 pages

G. Transportation Agreement 2023-2024 School Year 7/6/2023 6 pages

J. H. Not admitted into the record N/A N/A I. Not admitted into the record N/A N/A Quarterly Progress Report 7/7/2023 26 pages

K. Quarterly Progress Report 10/02/2023 23 pages

L. DOE IEP 2023-2024 School Year 4/17/2023 55 pages

M. [REDACTED] Affidavit 10/2/2023 3 pages

N. [REDACTED] Affidavit 10/2/2023 4 pages

DOE EXHIBITS

1. IEP 3/29/2023 55 pages DOE

2. Prior Written Notice and School Location Letter 10/7/2022, 9/21/2023 6 pages DOE

3. Progress Reports 1/6/2023 46 pages DOE

4. Nursing Referral 9/29/2022 22 pages DOE

5. [REDACTED] IEP 3/28/2023 70 pages DOE

6. Assistive Technology Evaluation 5/6/2021 8 pages DOE

7. Classroom Schedule 7/5/2023 1 page DOE

8. Attendance Record 9/22/2023 1 page DOE

9. Email Exchange re: Transportation March 6/27/2023 3 pages DOE

11. 10. Medicaid Provider Policy and Billing Handbook 84 2018 Psychoeducational Evaluation 8/24/2019 3 pages DOE

12. OT Evaluation 9/16/2019 3 pages DOE

13. PT Evaluation 9/17/2019 4 pages DOE

14. SLT Evaluation 9/19/2019 3 pages DOE

IHO EXHIBITS

I. Parent’s Closing Brief 10/20/2023 10 pages

Footnotes

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

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