New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 251246

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 07/27/2023 Pre-Hearing Conference

07/31/2023

08/04/2023

Actual Record Close Date: 08/10/2023

Decision Date: 08/10/2023

Hearing Officer: Daniel Ajello Esq. Hearing Officer’s Finding of Fact & Decision

NAMES AND TITLES OF PERSONS WHO APPEARED ON 07/27/2023

(All present by video or telephone)

[REDACTED], Attorney — Student

NONE — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 07/31/2023

(All present by video or telephone)

[REDACTED], Attorney — Student

[REDACTED], Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/04/2023

(All present by video or telephone)

[REDACTED], Attorney — Student

[REDACTED], — Parents

[REDACTED], Vice President of Student Programs — Student

[REDACTED]

For the Department of Education: NONE Hearing Officer’s Finding of Fact & Decision

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

Entered 07/27/2023

Ex. DOCUMENT DATE PAGE(S)

A Due Process Complaint (DPC) July 10, 2023 9

Entered 07/31/2023

B 10-day Notice June 16, 2023 6

C Individualized Education Program (IEP) May 15, 2023 33

D Prior Written Notice (PWN) July 21, 2023 11

E Neuropsychological Evaluation June 2, 2021 24

F Breakthrough Foundation

Functional Behavioral Assessment (FBA) April 2022 16

G [REDACTED] Academic Annual Review May 9, 2023 3 H [REDACTED] Functional Behavioral Assessment (FBA) March 27, 2023 4 I [REDACTED] Behavior Intervention Plan (BIP) March 27, 2023 5 J [REDACTED] Social Emotional Annual Review March 16, 2023 3 K [REDACTED] Occupational Therapy Annual Review May 9, 2023 4 L [REDACTED] Speech/Language Therapy Annual Review May 1, 2023 3

M [REDACTED] 2022-23 Progress Report 2022-23 21

N [REDACTED] BASE Program Description Undated 2 O [REDACTED] Enrollment Contract June 26, 2023 2 P [REDACTED] Meal Contract July 25, 2023 3

Q Partial Resolution Agreement Case No. 243692 December 21, 2022 2

R Findings of Fact and Decision Case No. 243692 May 24, 2023 16

Entered 08/04/2023

S Partial Resolution Agreement, July 2, 2023 2 Hearing Officer’s Finding of Fact & Decision

DEPARTMENT OF EDUCATION (DOE) NONE

IMPARTIAL HEARING OFFICER

Entered 07/27/2023 I Notice of Appointment, 07/12/2023, 4 pages II Teleconference Notice, 07/12/2023, 1 page Entered 08/04/2023 III Pendency Order, 07/31/2023, 7 pages Entered 08/10/2023 IV Notice of Appearance, 08/02/2023, 1 page Hearing Officer’s Finding of Fact & Decision

INTRODUCTION

On 07/12/2023, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Pre-Hearing Conference was held, on 07/27/2023, and Hearing commenced, on 07/31/2023, to allow an opportunity for the DOE to defend against the allegations contained in the DPC. The DOE opted not to present a case to defend against the allegations contained in the DPC. (Ex A)

Parent requested a determination of the Student’s Pendency during the proceedings. (Ex A 2)

Hearing to determine Student Pendency was held on 07/31/2023. (Ex A 2)

Pendency Order issued, on 07/31/2023. (IHO Ex III)

Appended to the record are lists of persons in attendance and the documents received in evidence.

Due Process Complaint (DPC) alleges a failure of the DOE to provide an appropriate IEP and placement for the 2023-2024 school year. (Ex A 1-2)

Allegations are uncontested, and include:

- As of the date of this DPC—July 10, 2023—the DOE has not provided a copy of the IEP or PWN providing the final recommended educational program for Student for the 2023-24 school year (Ex A 1);

- Unilateral Placement (UP) has been made, at [REDACTED] (UP). combined with10 hours per week of direct Applied Behavior Analysis (ABA) and three hours per week of supervision provided by Board Certified Behavior Analyst (BCBA) or Licensed Behavior Analyst (LBA) (collectively, “Home-based ABA Program”) provide an appropriate educational program in light of Student’s circumstances. (Ex A 1-2)

DPC also details Student educational history, diagnosis, delays, and behavioral difficulties. (Ex A 2-6)

Parent seeks relief that includes an Order requiring the DOE to:

1. pay UP costs of tuition related services, and meals for the 12-month 2023-24 school year; Hearing Officer’s Finding of Fact & Decision

2. fund 10 hours per week of 1:1 home-based ABA at an enhanced rate;

3. fund three hours per week of BCBA supervision at an enhanced rate;

4. provide round-trip transportation between his home and UP; and

5. fund such other and further relief as is appropriate.

(Ex A 7)

At Pre-Hearing Conference, of 07/27/2023, the Parent’s Attorney advised the IHO that the issues related to the Student’s Home Based ABA Program were resolved during the Resolution Period. (T 4, Ex Q)

Parent Attorney informed the IHO tat the Parent eventually received the IEP, for the 23-24 school year, though an School Location Letter was not received. (T 44)

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

THE POSITION OF EACH PARTY

The DOE opted to not defend any offer of a Free Appropriate Public Education (FAPE), for the Student, for the 23-24 school year. (T 17)

The Parent Attorney supported the Parent’s position via Testimony and Documentary Evidence, as considered below. The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below:

[REDACTED], Vice President of Student Programs [REDACTED]

Witness Testimony included:

- A review of professional and educational qualifications, and related experience

(T 52-54);

- A review of responsibilities at the UP, which includes being on the admissions Hearing Officer’s Finding of Fact & Decision team; working with staff to ensure students are receiving appropriate instruction and making progress; and overseeing the [REDACTED] Program

(T 54-56);

- [REDACTED] is a school for students on the Autism spectrum (T 56);

- [REDACTED] Program is for students who have intellectual impairment who need a functional life skills program, with a focus much on independence and functional academics (T 57);

- A description of the [REDACTED] ABA program and staff (T 58-59);

- Familiarity with the Student (T 62);

- Student challenges include Autism, and behaviors that interfere with learning

(T 62);

- Student supports include: ABA, a BIP, OT, SLT, and a paraprofessional for safety (T 62-63);

- Student is in a class of with six students, one teacher, one teacher assistant, and he does have a one-to-one paraprofessional (T 63);

- Student special needs require: lots of one-to-one, discreet trials (ABA) and a program where data is taken each day (T 63-64); and

- Student achieved many of his goals, including in math and reading (T 64), and behavior (T 65).

[REDACTED], Parent

Testimony includes:

- Student is currently in the [REDACTED] grade, though functions at a kindergarten-1st grade level. (T 46);

- Student is in a class with children who function similarly (T 46);

- Parent attended all the Student’s IEP meetings (T 67);

- Student concerns include academics, behaviors and social skills (T 68);

- Student is doing “great” (T 68);

- Parent provided areas of Student improvement (T 68-69);

- The UP is appropriate fort the Student (T 69);

- ABA works with the Student (T 70); Hearing Officer’s Finding of Fact & Decision

- No payments have been made to the [REDACTED];

- Income is derived from public assistance, and Student’s survivor benefits (T

70);

- Income total amounts to about $10,00.00 for the year (T 71);

- Parent could not afford the UP Tuition (T 70); and

- Previous to attending the UP, the Student attended Public School and received free lunch. (T 70)

A Due Process Complaint (DPC) July 10, 2023

Details allegations of a denial of FAE for the 23-24 school year, and sets forth sought after relief.

B 10-day Notice June 16, 2023

Parent notifies the DOE of the alleged denial of FAPE, including a failure to offer the Student a placement, intent to continue the Student’s attendance, at the [REDACTED], and intent to seeks DOE funding for Student [REDACTED] and transportation.

C Individualized Education Program (IEP) May 15, 2023

Student classification is set forth as Autism. (Ex A 1)

Recommendation is made for a 12 month program, a Special Class (8-1+1), with related services, at a New York State Approved Non-Public School. (Ex C 24-26 & 30)

Student is recommended to special transportation accommodations/services as follows:

Transportation from the closest safe curb location to school.

Other Accommodations – Limited Travel Time

Other Accommodations – Route with Fewer Students (Ex C 30)

D Prior Written Notice July 21, 2023

Confirms IEP recommended program and placement. Hearing Officer’s Finding of Fact & Decision

E Neuropsychological Evaluation June 2, 2021

Confirms Student’s need for special education services.

Includes:

- Student history (Ex E 1-5);

- Review of previous evaluations (Ex E 5-6);

- Current Testing and results (Ex E 6-19);

- Reviews results of testing and sets forth diagnoses:

• Intellectual Disability (ID), Mild range (DSM-5 318.2; ICD-10 F73)

• Specific Learning Disorder with impairment in reading accuracy and rate

(also known as Dyslexia) (DSM-5 315.00; ICD-19 F81.0)

• Specific Learning Disorder with written expression (also known as Dysgraphia) (DSM-5 315.2; ICD-10 F81.81)

• Specific Learning Disorder with mathematics (also known as Dyscalculia) (DSM-5 315.1; ICD-10 F81.2)

• Attention-Deficit/Hyperactivity Disorder (ADHD), Combined presentation (DSM-5 314.01; ICD-10 F90.2)

• Developmental Coordination Disorder (DCD) (DSM-5 315.4; ICD-10 F82)

• Autism Spectrum Disorder (ASD), With accompanying intellectual and language impairments, Level 2 (“Requiring Substantial Support”) (DSM-5 299.0; ICD-10 F84.0)

• Disruptive Mood Dysregulation Disorder (DMDD) (DSM-5 296.99; ICD-10 F34.8)

• Anxiety Disorder, NOS (DSM-5 300.0; ICD-10 F41.9

(Ex E 19-21)

Recommendation is made to continue ABA Therapy. (Ex E 21)

School Recommendation is made, which includes:

o Classification of Autism or Multiple Disabilities given his complex diagnostic profile and current needs o Placement in a school that provides ABA therapy and push-in related Hearing Officer’s Finding of Fact & Decision services in a 1:1 Format, noting the Student’s then current placement was inappropriate (Ex E 22); o Multisensory Curriculum, Individualized Attention;

o Social-Communication Curriculum;

o Behavior Therapy;

o Adaptive Living Skills; and

o Related Services of OT, Counseling, SLT and Parent Counseling and Training (Ex E 23).

F Breakthrough Foundation Functional Behavioral Assessment (FBA) April 2022

FBA details Student behaviors which interfere with his education, and sets forth a plan, and strategies, to target and replace those behaviors. (Ex F 14-16)

G [REDACTED] Academic Annual Review May 9, 2023

Details areas of Student special education program, needs, supports and progress.

Related services include: SLT, three times weekly for 30 minute individual sessions; OT once weekly for a 30 minute session sin a group; Counseling once weekly for a 30 minute session individually and once weekly for a 30 minute session in a group; and Parent Training once monthly for 60 minutes. (Ex G 1)

Challenges and Student supports include:

- adherence to classroom routines, albeit requiring consistent maximal verbal prompting;

- to facilitate his engagement and behavior regulation, 1:1 paraprofessional support throughout the school day;

- Student can be sensitive to changes in routine and unexpected demands, which may lead to feelings of being overwhelmed. Notably, transitions between preferred activities to ac academics can be particularly challenging for him, sometimes resulting in displays of aggression or disruptive behavior (Ex G 1);

- clear and consistent expectations, alongside regular breaks and visual supports.

These strategies contribute to creating a conducive learning environment and promoting positive outcomes for Student's academic and behavioral progress Hearing Officer’s Finding of Fact & Decision (Ex G 2);

- Executive Functioning Goals;

- Reading Goals;

- Writing Goals;

- Math Goals (Ex G 2);

- Social and Emotional challenges and interventions aimed at building coping strategies, self-regulation skills, and social capacity. This may include social stories, role playing, relaxation techniques, sensory supports, and individualized behavior plans. (Ex G 3)

Recommendation is made that Student:

- must be placed in a small class size and a structured environment in order to be successful;

- requires constant one on one redirection from staff members

- benefits from positive reinforcement as well as verbal redirection, a quiet space to work and the implementation of his Behavior Intervention Plan throughout the school day in order to be available to learn;

- should continue in a small, structured environment in order to be successful throughout the school year;

- should be placed in a 6:1:1 educational class in the Blended/IAIC Elementary program at UP in order for him to be successful and achieve his goals;

- attends an extended school year to prevent regression.

(Ex G 3)

H [REDACTED] Functional Behavioral Assessment (FBA) March 27, 2023

UP details Student’s observed adverse behaviors.

I [REDACTED] Behavior Intervention Plan (BIP) March 27, 2023

Details Student Behavior Plan to address adverse behaviors, which include Aggressions, Property Destructions and Task Refusal. (Ex I 1)

Proactive strategies are set forth to address adverse Student behaviors. (Ex I 1-4) Hearing Officer’s Finding of Fact & Decision

J [REDACTED] Social Emotional Annual Review March 16, 2023

Counselor details Student challenges and recommends continued support via ABA methodology, inclusive of a summer program to prevent regression. (Ex J 2-3)

K [REDACTED] Occupational Therapy Annual Review May 9, 2023

Details Student OT challenges, sets forth goals and continues to recommend services.

L [REDACTED] Speech/Language Therapy Annual Review May 1, 2023

Details Student SLT challenges, sets forth goals and continues to recommend services. (Ex L 1-3)

M [REDACTED] 2022-23 Progress Report 2022-23

Details Student Goals and Progress, through the 22-23 school year, for Student behaviors and academics, utilizing ABA methodology.

N [REDACTED] BASE Program Description Undated

Details general [REDACTED] characteristics, including, servicing the needs of Students with Autism; utilizing ABA methodology; and providing related services.

O [REDACTED] Enrollment Contract June 26, 2023

Student, 12 month, 23-24 Tuition is set forth as:

- The Student’s total (40) forty week 10-month program cost is

$[REDACTED] which includes related services and a designated 1:1 paraprofessional; and

- The Student’s total (3) three weeks Summer program cost is

$[REDACTED] which includes related services and a designated 1:1 paraprofessional.

(Ex O 1)

Total: $[REDACTED]. (Ex O 1)

Parent signature is indicated, obligating Parent to payment under the terms of the Hearing Officer’s Finding of Fact & Decision

Tuition Contract. (Ex O 2)

P [REDACTED] Meal Contract July 25, 2023

[REDACTED] Meals Costs are set forth as not to exceed $[REDACTED], for the 23-24 school year. (Ex P 1)

Parent is obligated to payment via signature upon the Contract. (Ex P 3)

Q Partial Resolution Agreement Case No. 243692 December 21, 2022

Agreement resolved issues relating to Student’s Home ABA services, for the 2223 school year.

R Findings of Fact and Decision Case No. 243692 May 24, 2023

Established Student Pendency as Ordered in IHO Ex III.

S Partial Resolution Agreement, July 2, 2023

Agreement resolved issues relating to Student’s Home ABA services, for the 23-24 school year.

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400- 1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A][B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 Hearing Officer’s Finding of Fact & Decision

[2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Hearing Officer’s Finding of Fact & Decision

Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Hearing Officer’s Finding of Fact & Decision

Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private Hearing Officer’s Finding of Fact & Decision placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

The final criterion for a reimbursement award is that the parents' claim must be supported Hearing Officer’s Finding of Fact & Decision by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Hearing Officer’s Finding of Fact & Decision

Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 2023/2024 School Year The DOE opted not to present a defense to the Parent’s allegations. (T 17)

The district has presented no witnesses in this matter, to support the IEP, of 05/15/2023. (Ex C)

An IEP does not on its own, without testimony to explain its appropriateness, establish that a FAPE has been provided. See e.g. R.E. v. N.Y.C. Dep’t of Educ., 694 F. 3d 167, 185-186 (2d Cir. 2012); L.O. v. N.Y.C. Dep’t of Educ., 822 F2d 95,111 (2d Cir. 2016)

Accordingly, I conclude that the district has not met its burden to establish that it provided a FAPE, for the 23-24 school year.

DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 23-24 school year.

I find the DOE failed to offer the Student a FAPE for the 23-24 school year.

UP Placement for the 23-24 School Year

Testimony and documentary evidence, as reviewed above, support [REDACTED] as an appropriate Student placement for the 23-24 school year.

The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. I find that the documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent.

Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex C, E, F, G, H, I, J, K, L, M, N and T 62-65, 46 & 68-69)

I find that the UP provides special education services specifically tailored to meet the needs of the Student.

I find [REDACTED] provides an appropriate education and program for the Student for Hearing Officer’s Finding of Fact & Decision the 23-24 school year.

TUITION FUNDING 2023-2024 School Year

I find the Parent is entitled to Student’s [REDACTED] Tuition funding, via the DOE, for the UP, 23-24 school year.

Parent provided appropriate Ten Day Notice Letter. (Ex B)

The DOE has denied a FAPE to the Student for the 23-24 school year.

Student, 12 month, 23-24 Tuition is set forth as:

- The Student’s total (40) forty week 10-month program cost is $[REDACTED] which includes related services and a designated 1:1 paraprofessional; and

- The Student’s total (3) three weeks Summer program cost is $[REDACTED] which includes related services and a designated 1:1 paraprofessional.

(Ex O 1)

Total: $[REDACTED]. (Ex O 1)

Parent signature is indicated, obligating Parent to payment under the terms of the Tuition Contract. (Ex O 2)

UP Meals Costs are set forth as not to exceed $[REDACTED], for the 23-24 school year. (Ex P 1)

Parent is obligated to payment via signature upon the Meals Contract. (Ex P 3)

The United States District Court for the Southern District of New York found plaintiffs, parents of child placed in a non-public school, had stated a claim under Section 504 that failure to provide them with school meals because they were placed at private schools constituted illegal disability discrimination. [C.D. v. New York City Department of Education, No. 05 Civ. 7945, 2009 WL 400382 (S.D.N.Y. Feb. 11, 2009)].

The court emphasized that “[d]isabled students should not have to choose whether to learn or to eat, and the law does not require them to choose.” Id. at *7. The Court further found that reimbursement for the cost of meals could be a reasonable accommodation. Id. at *13.

Since the court’s decision in C.D., impartial hearing orders have, at times, required the DOE to reimburse parents of students with disabilities for the cost of breakfast and lunch when their children attend private school with DOE funding due to their disability.

Parent Testifies that no payments have been made to the UP; income is derived from Hearing Officer’s Finding of Fact & Decision public assistance, and Student’s survivor benefits (T 70); income total amounts to about $10,00.00 for the year (T 71); she cannot afford the UP Tuition (T 70); and previous to attending the UP, the Student attended Public School and received free lunch. (T 70)

With regard to fashioning equitable relief, one court has addressed whether it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so (Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). The court held that "[w]here . . . parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769

F. Supp. 2d at 428). The Mr. and Mrs. A. Court relied in part on dicta from earlier cases in which similar claims seeking direct retroactive payment to a private non-approved school were asserted (see Connors v. Mills, 34 F. Supp. 2d 795, 805-06 [N.D.N.Y. 1998] [opining that such financial disputes should be resolved within the administrative hearing process]; see also S.W., 646 F. Supp. 2d at 358-60). The Mr. and Mrs. A. Court held that in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs (Mr. and Mrs. A., 769 F. Supp.2d at 430).

Parent needs to meet the burden of production and persuasion with respect to whether they have the financial resources to "front" the costs of a unilateral placement and whether they are legally obligated for the student's tuition payments (Application of the Dep't of Educ., 12132; Application of a Student with a Disability, 12-036; Application of a Student with a Disability, 12-004; Application of the Dep't of Educ., 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041).

I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to direct DOE funding of the [REDACTED] tuition, for the 23-24.

I find the Parent meets the burden of establishing she lacks the financial resources to front Hearing Officer’s Finding of Fact & Decision the cost of Student [REDACTED] attendance, and meals.

I find the Parent is entitled to direct [REDACTED] funding as Ordered below.

TRANSPORTATION

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). In addition, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]).

Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 16035). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]).

Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]). Hearing Officer’s Finding of Fact & Decision

Student is recommended to special transportation accommodations/services as follows:

Transportation from the closest safe curb location to school.

Other Accommodations – Limited Travel Time

Other Accommodations – Route with Fewer Students (Ex C 30)

I find evidence supports the provision of a special education transportation for the Student for the 23-24 school year. Hearing Officer’s Finding of Fact & Decision

ORDER

1. The Department of Education (DOE) failed to offer the Student a FAPE for the 23-24

school year.

2. [REDACTED] ([REDACTED]) provides Student with an appropriate program and placement, for the 23-24 school year.

3. The DOE shall directly fund Student, 12 month, 23-24 Tuition, and Meals, at [REDACTED] (REDACTED]) inclusive of:

a. The Student’s total (40) forty week 10-month program cost is $[REDACTED] which includes related services and a designated 1:1 paraprofessional; and

b. The Student’s total (3) three weeks Summer program cost is $[REDACTED] which includes related services and a designated 1:1 paraprofessional.

[Total: $[REDACTED]]

c. UP Meals Costs not to exceed $[REDACTED], for the 23-24 school year.

4. The DOE shall provide the Student with special education transportation for the 23-24 school year, to and from [REDACTED] (UP, with accommodations that include:

o Transportation from the closest safe curb location to school o Limited Travel Time and Route with Fewer Students

5. The DOE shall provide Parent with any documents/forms necessary to facilitate payment, and transportation, under this Order, within ten days of the date of this Order.

6. This decision is subject to appeal and review by the State Review Officer. DATED: August 10, 2023

DANIEL AJELLO

DANIEL AJELLO

Impartial Hearing Officer Hearing Officer’s Finding of Fact & Decision

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.