New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 251318

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 08/08/2023

09/06/2023

09/07/2023

Actual Record Close Date: 09/13/2023

Decision Date: 09/13/2023

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

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

(All Parties Appeared Via Teleconference)

[REDACTED], Attorney — Student

[REDACTED], Clerk — Student

[REDACTED], Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 09/06/2023

(All Parties Appeared Via Teleconference)

[REDACTED]. Attorney — Student

[REDACTED], — Parents

[REDACTED], Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 09/07/2023

(All Parties Appeared Via Teleconference)

[REDACTED]. Attorney — Student

[REDACTED], — Parents

[REDACTED], Attorney — DOE

Hearing Officer‘s Finding of Fact & Decision — DOE

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

Entered 08/08/2023 Exhibit Document Date Page(s) A Impartial Hearing Request/Due Process Complaint (DPC) 07/10/23 13 B Individual Education Program (IEP) 02/14/22 45 C Final Order of Fact and Decision (FOFD), Case #229027 10/21/22 10 D Ten Day Notice Letter (TDN) and Responses 06/16/23 3 Entered 09/06/2023 E Independent Occupational Therapy Evaluation 08/21/21 7 F Independent Physical Therapy Evaluation 08/21/21 6 G Independent Assistive Technology Evaluation 10/02/21 12 H Independent Neuropsychological Evaluation 12/11/21 30 I Email from DOE re: Scheduling IEP Meeting 06/05/23 4 J Limited Time Travel Letter 08/10/23 1 K [REDACTED] Program Description 2023 8 L [REDACTED] Enrollment Agreement 06/22/23 3 M [REDACTED] Tuition Affidavit 07/17/23 1 N [REDACTED] 2023 Summer School Schedule 2023 1 O [REDACTED] Occupational Therapy Report 07/19/23 4 P [REDACTED] Academic Annual Review 06/15/23 5 Q [REDACTED] Action Plan 07/20/23 3 R [REDACTED] Physical Therapy Report 07/19/23 6 S [REDACTED] Social Emotional Report 07/15/23 3 T [REDACTED] Speech-Language Report 06/15/23 3 U [REDACTED] Functional Behavior Assessment 07/20/23 4 V Resume of [REDACTED], [REDACTED] Administrator Undated 2 W Affidavit of [REDACTED], [REDACTED] Administrator 08/18/23 9 Y Affidavit of [REDACTED], Parent 08/25/23 4 Hearing Officer‘s Finding of Fact & Decision

DEPARTMENT OF EDUCATION (DOE)

None

IMPARTIAL HEARING OFFICER

Entered 08/08/2023 I Notice of Appointment, 07/12/2023, 4 pages II Teleconference Notice, 07/12/2023, 1 page III Notice of Appearance, 07/26/2023, 1 page Entered 09/06/2023 IV Pendency Order, 08/08/2023, 8 pages 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.

Parent requested a determination of the Student’s Pendency during the proceedings. (Ex A 1)

Hearing to determine Student Pendency was held on 08/08/2023.

Pendency Order was issued, on 08/08/2023, which found Pendency placement exists in the FOFD, of 10/21/2022, Case Number 229027, resulting in Order:

- Direct DOE tuition funding for the Student’s unilateral placement at the Private School

([REDACTED] Academy):

(a) DOE shall directly fund the balance of Student’s tuition at the Private School in an amount not to exceed $[REDACTED] ([REDACTED]).

(b) DOE shall pay to the Private School the tuition funds, not to exceed $[REDACTED], within 30 days of submission of a signed, notarized bill encompassing tuition costs owed by the Parent to the Private School for the Student’s attendance at the Private School for the 12-month school year.

- The DOE shall provide transportation for the Student, between his home and the Private School, from and to the closest curb, for the extended 12-month school year, with limited travel time (no more than 45 minutes one way) in an air conditioned bus.

(IHO Ex IV 7)

Hearing continued, on 09/06/2023, and concluded, on 09/07/2023.

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

Due Process Complaint (DPC) relates to the 23/24 School Year, and allegations Hearing Officer‘s Finding of Fact & Decision include:

- Recounting Student’s educational history, including prior Hearing (Ex B, Ex A

26)); and

- Alleging the DOE failed to offer the student a free and appropriate public education (FAPE) for the '23/'24 school, in part due to a failure to offer an actual 23-24 Student placement (Ex A 6-7).

Parent seeks relief that includes DOE funding of Student 23-24 Tuition, for attendance, at the Unilateral Placement, [REDACTED] Academy (UP) along with transportation. (Ex A 8-9)

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

At Hearing, of 09/06/2023, the DOE was given an opportunity to defend against the allegations contained in the DPC. (Ex A)

The DOE opted not to defend an offer of FAPE, for the 23-24 school year. (T 21)

Parent Attorney advised the IHO that the Student was receiving DOE transportation. (T 22)

At Hearing, the Parent Attorney supported the Parent’s position via Documentary Evidence and Oral Testimony. The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below: Hearing Officer‘s Finding of Fact & Decision

A Impartial Hearing Request/Due Process Complaint (DPC) 07/10/23

Details Student’s educational history, allegations of a denial of FAPE for the 23-24 school year, and sets forth sought after relief.

B Individual Education Program (IEP) 02/14/22

Confirms Student classification of Autism. (Ex B 1)

Sets forth areas of Student challenge and delay, in areas including: academics, social functioning and physical development. (Ex B 2-12)

Includes Student need for a variety of supports, including individualized attention. (Ex B 13)

Recommends a Special Class 12:1+1, with Counseling, Occupational Therapy (OT), Parent Counseling and Training (PCAT), Physical Therapy (PT), Speech Language Therapy (SLT), Assistive Technology (AT), and a 12-month school year. (Ex B 35-37)

Recommends Special Transportation, including: Transportation from the closest safe curb location to school, Air Conditioning, Route with fewer students and Door-to Door. (Ex B 41)

C Final Order of Fact and Decision (FOFD), Case #229027 10/21/22

FOFD found DOE denied the Student a FAPE, for the 22-23 school year, and directed DOE to: fund 22-23 UP Student Tuition, and provide transportation. (Ex C 7)

D Ten Day Notice Letter (TDN) and Responses 06/16/23

Parent provides notice to the DOE that: she is awaiting communication to schedule an IEP meeting; a 23-24 school placement has not been received; absent an appropriate Student program he will be enrolled at the UP; and Parent will seek DOE funding for Student placement, at the UP. (Ex D 1)

E Independent Occupational Therapy Evaluation 08/21/21

Confirms Student need for OT services, on a 12-month basis. Hearing Officer‘s Finding of Fact & Decision

F Independent Physical Therapy Evaluation 08/21/21

Confirms Student need for PT services, on a 12-month basis.

G Independent Assistive Technology (AT) Evaluation 10/02/21

Confirms Student need for AT supports, and services.

H Independent Neuropsychological Evaluation 12/11/21

Student educational and testing history is detailed, resulting in diagnoses of:

o Autism Spectrum Disorder with intellectual impairment and language impairment o Learning Disorder with impairment in Reading o Learning Disorder with impairment in Written Expression o Learning Disorder with impairment in Mathematics o Developmental Coordination Disorder (Ex H 21)

Evaluator recommends UP as an appropriate Student placement. (Ex H 22)

Educational supports and services are recommended along with related services. (Ex H 22-25)

I Email from DOE re: Scheduling IEP Meeting 06/05/23

DOE Email to Parent regarding upcoming IEP meeting.

J Limited Time Travel Letter 08/10/23

Doctor completed form detailing Student need for transportation accommodations, which include: Air Conditioned Bus, expected travel duration of one hour.

K [REDACTED] Program Description 2023

General characteristics of the Student UP program include: Hearing Officer‘s Finding of Fact & Decision

- Individualized Education Programs

- Discrete Trial Teaching

- Sensory Integration

- Collaborative Problem Solving (Ex K 4)

- Real-Time Functional Therapy

- Extended Student and Family Support (Ex K 5)

L [REDACTED] Enrollment Agreement 06/22/23

Student UP, 23-24 Tuition, is set forth as:

o $[REDACTED] for ten-month program

o $[REDACTED] for six-week summer program. (Ex L 1)

Parent is obligated to payment via signature. (Ex L 2)

M [REDACTED] Tuition Affidavit 07/17/23

Student Tuition balance is $[REDACTED].

N [REDACTED] 2023 Summer School Schedule 2023

Student Summer 23-24 UP academic and related service schedule.

O [REDACTED] Occupational Therapy Report 07/19/23

Student areas of challenge and goals are detailed, along with areas of progress, and recommendation to continue services.

P [REDACTED] Academic Annual Review 06/15/23

Confirms Student attendance, at the UP, for the 22-23 school year, where he attended the [REDACTED] Program ([REDACTED]) with Applied Behavior Analysis (ABA) strategies, and Collaborative Problem-Solving methodologies to facilitate academic and social skill development. (Ex P 1)

Student program included SLT, OT, Counseling services, and PCAT. (Ex P1)

UP Review details Student challenges, supports, and progress in areas of: Hearing Officer‘s Finding of Fact & Decision o Executive Functioning (Ex P 2)

o Reading (Ex P 2-3)

o Writing (Ex P 3-4)

o Math (Ex P 4)

o Social Emotional (Ex P 4-5)

Recommendations include having the Student continue at the UP 6:1:1 educational setting, in the [REDACTED] Program. (Ex P 5)

Q [REDACTED] Action Plan 07/20/23

Student Maladaptive Behaviors are detailed along with strategies to address each behavior.

R [REDACTED] Physical Therapy Report 07/19/23

Details Student challenges, sets forth goals, areas of progress, and recommends continuing 12-month PT services.

S [REDACTED] Social Emotional Report 07/15/23

Details Student challenges, sets forth goals, areas of progress, and recommends continuing 12-month Counseling services.

T [REDACTED] Speech-Language Report 06/15/23

Details Student challenges, sets forth goals, areas of progress, and recommends continuing 12-month SLT services.

U [REDACTED] Functional Behavior Assessment 07/20/23

Sets forth Data collected regarding Student adverse behaviors, and the impact on Student’s education.

V Resume of [REDACTED], [REDACTED] Administrator Undated

Qualifications of UP Administrator. Hearing Officer‘s Finding of Fact & Decision

W Affidavit of [REDACTED], [REDACTED] Administrator 08/18/23

Up Administrator provides Testimony that include:

- a review of her qualifications (Ex W 1-2);

- familiarity with the Student, who has attended the UP since the 17-18 school year (Ex W 2 & 4);

- general characteristics of the UP:

o goal is to provide a supportive, individualized educational environment and to encourage our students to become more independent o tailored to meet the needs of students with a range of abilities o in addition to an Autism diagnosis, serves students with language and sensory integration deficits; hypersensitivity to touch, light, and noise; and physical limitations; and many students that exhibit challenging behavior, so we offer behavioral support and have a crisis management team of staff. (Ex W 2);

- Student attends the UP [REDACTED] program, which provides:

o determined to be the best fit for Student based on his academic, speech, social, emotional and behavioral needs o applied behavior analysis (ABA) methodologies, one-to-one individualized support, and skill-specific instruction has helped Student make progress in all areas of need o academics with an emphasis on social thinking and vocational or post-secondary opportunities. This program is designed for students who are average to above-average intellectually and who follow the Common Core curriculum. (Ex W 3)

- ABA is used as a reinforcement for positive behaviors (Ex W 3);

- Student’s teachers and support staff are trained in areas that include ABA methodology, implementation of BIPs and sensory diets (Ex W

4);

- Student is a 23-24, 12-month, UP Student (Ex W 4);

- Student challenges include: “autism, which creates difficulties for him in all areas of development. [Student] has deficits in his social Hearing Officer‘s Finding of Fact & Decision communication skills and difficulty appropriately interacting with his peers. Additionally, [Student] may engage in refusal/ noncompliant behaviors during non-preferred tasks, tasks he deems as difficult, and exceedingly long academic tasks.” (Ex W 5);

- Student: “requires a nontraditional, structured, educational environment with a small class size where he can receive prompting and redirection.

These strategies help him to continue to stay on task. [Student] benefits from a quiet task area within the classroom and continued implementation of a positive reinforcement plan and refocusing. He also requires assistance in dealing with frustration, pacing with academic assignments, staying focused during class lessons, as well as support socially. Further, [Student] requires a sensory diet to help regulate his body and be available to learn. The staff at UP assist [Student] with these needs. At UP, we utilize an ABA approach to learning. Activities are broken down into simple steps to help [Student]

remain on task.” (Ex W 5);

- Student 23-24 program included:

o Class of 6 students, a teacher and a teacher assistant (6:1:1)

o Class of 8th grade students ages 13-14

o An Action Plan (BIP) to help Student regulate his emotions and calmly return to being on task o FBAs (Ex W 5)

o Supports to manage behaviors, such as: positive verbal praise for all appropriate behaviors exhibited, visual classroom rules, visual behavior expectations, five-minute transition warnings, and opportunities to complete assignments in a separate, quiet location outside the classroom (Ex W 6)

o Social Skills classes (Ex W 8)

o Monthly Parent Training (Ex W 8)

- A review of Student goals, and progress, in areas of” Reading, Writing, and Math (Ex W 6); Hearing Officer‘s Finding of Fact & Decision

- Student receives related services of: Speech-Language Therapy (SLT), Occupational Therapy (OT), Physical Therapy (PT), and Counseling (Ex W 7);

- A review of Student goals and progress in related service areas of SLT, PT, OT and Counseling (Ex W 6-7);

- Witness believes the UP is an appropriate 23-24 Student setting, which meets his academic, social, behavioral and emotional needs; and

- Student requires a strict ABA program on a 12-month basis to prevent regressions and allow developing skills. (Ex W 8)

Y Affidavit of [REDACTED], Parent 08/25/23

Student’s Parent provides Testimony that includes:

- Student received independent neuropsychological evaluation, in 2016, which was updated in 2021 (Ex Y 1 & H);

- Student did not receive a 23-24 DOE placement (Ex Y 2);

- Parent, via Attorney advised the DOE of its failure and Parent intent to continue Student enrollment, at the UP (Ex Y 2 & Ex D);

- Student receives ABA instruction throughout the day, at the UP (Ex Y 2-3);

- Parent has observed Student academic and social/emotional progress since attending the UP (Ex Y 3);

- The UP remains an appropriate placement for the Student, for the 23-24 school year;

- Family income is about $[REDACTED], resulting in the Parent being unable to fund Student Tuition payments, and await reimbursement. (Ex Y 3-4)

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]Hearing Officer‘s Finding of Fact & Decision

[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the 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 Hearing Officer‘s Finding of Fact & Decision

[2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 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, Hearing Officer‘s Finding of Fact & Decision developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

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

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d 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 Hearing Officer‘s Finding of Fact & Decision

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

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable 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 Hearing Officer‘s Finding of Fact & Decision expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 2023-2024 School Year The DOE opted not to present a defense to the Parent’s allegations.

The district has presented no witnesses in this matter. Although an IEP for the 23-

24 school year is referred to, no such IEP has been entered into evidence.

The DOE has not evidenced development of an appropriate IEP, or placement for the commencement of 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 UP as an appropriate Student placement for the 23-24 school year.

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

Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex E, F, G, H, J, K, N, O, P, Q, R, S, T, U, W & Y)

I find that the UP provides special education services specifically tailored to meet the needs of the Student. Hearing Officer‘s Finding of Fact & Decision

I find UP provides an appropriate education and program for the Student for the 23-24 school year.

TUITION FUNDING 2023-2024 School Year

I find the Parent is entitled to Student’s UP Tuition funding, via the DOE, for the UP, 2324 school year.

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

Parent provides appropriate TDN. (Ex D)

Student UP, 23-24 Tuition, is set forth as totaling $[REDACTED]:

o $[REDACTED] for ten-month program

o $[REDACTED] for six-week summer program. (Ex L 1)

Parent is obligated to payment via signature. (Ex L 2)

Balance of $[REDACTED] remains due. (Ex M)

Parent testifies she is unable to pay the UP tuition based on her limited income. (Ex Y 34)

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, Hearing Officer‘s Finding of Fact & Decision administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs (Mr. and Mrs. A., 769 F. Supp.2d at 430).

In this matter the Parents choose to continue Student placement at UP, without any DOE alternative.

Parent provides uncontroverted Testimony relative to financial capability. (Ex Y 3-4)

I find the Parent meets 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 UP tuition, for the 23-24 school year.

I find the Parent is entitled to direct UP 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]). Hearing Officer‘s Finding of Fact & Decision

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]).

Evidence supports continuing Student’s special transportation supports, for the 23-24 school year.

Evidence includes a Limited Time Travel Letter, detailing Student need for transportation accommodations, which include:

o Air Conditioned Bus, expected travel duration of one hour. (Ex J)

Student IEP also recommends Special Transportation, including: Transportation from the closest safe curb location to school, Air Conditioning, Route with fewer students and Door-to Door. (Ex B 41) Hearing Officer‘s Finding of Fact & Decision

ORDER

1. The Department of Education (DOE) failed to offer the Student a FAPE for the 2023- 2024 school year.

2. [REDACTED] Academy, [REDACTED] ([REDACTED]) (UP) program provides Student with an appropriate program and placement, for the 12-month, 23-24 school year.

3. The DOE shall directly fund Student, 12-month, 23-24, [REDACTED] Academy (UP),

Tuition, up to the amount of: $[REDACTED].

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

o Air-Conditioned Bus

o Travel duration of one hour

o Transportation from the closest safe curb location to school o Route with fewer students and o Door-to Door.

5. The DOE shall provide Parent with any documents or forms necessary to facilitate payment, and services, 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: September 13, 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.