New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 251915

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Re[REDACTED]ed By: Parent

Date of Hearing: 08/31/2023

09/14/2023

Actual Record Close Date: 09/29/2023

Decision Date: 10/01/2023

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/31/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], Attorney

[REDACTED], Parent

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 09/14/2023

(All present by video or telephone)

For the Student:

[REDACTED], Attorney

For the Department of Education:

[REDACTED], Attorney

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

ENTERED 08/31/2023

Exhibit	Date	Title	Page(s)
A	07-20-2023	Due Process Complaint (DPC) with Receipt	06
B	01-03-2022	Neuropsychological Evaluation	18
C	07-13-2022	Letter from Psychologist	02
D	08-21-2022	Ten Day Notice (TDN) Letter with E-Receipt	04
E	Various Dates	Parent Outreach to Public School	06
F	10-14-2022	Parent Follow Up Letter to CSE	05
G	12-09-2022	Trimester 1 Report Card	13
H	Undated	Trimester 1 ATL Skill Report	06
I	03-17-2023	Trimester 2 Report Card	14
J	Undated	Trimester 2 ATL Skill Report	06
K	06-23-2023	Trimester 3 Report Card	13
L	03-11-2022	Enrollment Contract	04
M	10-07-2022	Tuition Affidavit	01
N	Various Dates	Parent Proof of Payment	03
O	Undated	Class Schedule	01
P	08-30-2023	Testimony Affidavit of [REDACTED]	04

ENTERED 09/14/2023

Exhibit	Date	Title	Page(s)
Q	09-13-2023	Testimony Affidavit of [REDACTED]	12

DEPARTMENT OF EDUCATION (DOE)

NONE

IMPARTIAL HEARING OFFICER

ENTERED 08/31/2023

Exhibit	Title	Date	Page(s)
I	Notice of Appointment	07/21/2023	4
II	Teleconference Notice	07/21/2023	1
III	Notice of Appearance	08/04/2023	1

INTRODUCTION

On 07/21/2023, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Hearing commenced, on 08/31/2023, to allow an opportunity for the DOE to defend against the allegations contained in the DPC.

Ultimately, the DOE did not avail itself of the opportunity to defend against the allegations contained in the DPC.

Hearing continued, and concluded, on 09/14/2023.

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

Due Process Complaint (DPC) relates to the 22-23 School Year, and alleges that the DOE failed to provide the Student with a free, appropriate public education (FAPE) for the '22/'23 school year. (Ex A)

Parent seeks relief to remedy the alleged failure, including: DOE funding for unilateral placement (UP), at the [REDACTED], with the [REDACTED] Program (UP). (Ex A)

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 did not defend any offer of a Free Appropriate Public Education (FAPE), for the Student, for the 23-24 school year.

At Hearing, the Parent supported its position via Documentary Evidence and Testimony via Affidavit. The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below: A 07-20-2023 Due Process Complaint (DPC) with Receipt

Parent alleges: - An Individualized Education Program (IEP), of July 22, 2022: classified the Student as other health impaired; recommended general education with special education teacher support services (SETSS) for 5 periods each week and 2 periods of counseling (Ex A 1); - The IEP contained multiple procedural errors that singularly and cumulatively impeded this child’s right to a free, appropriate public education (FAPE), significantly inhibited parental participation in the decision-making process regarding the provision of a FAPE, and caused a deprivation of educational benefits. Furthermore, the IEP is substantively inadequate and not reasonably calculated to enable the child to receive educational benefits. The program and substantive IEP recommendations are not sufficient or appropriate for this child. In addition, the DOE’s procedural errors inhibited the parents’ rights to be informed about and involved in the decision-making and challenge the IEP on substantive grounds (Ex A 1); - Despite reliance upon Parent submitted Student reports calling for one-on-one specialized support, the DOE failed to provide recommended Student services (Ex A 2); - The DOE failed to make an appropriate placement recommendation (Ex A 4); - Parent enrolled the Student at the appropriate UP program; and - Parent seeks DOE funding for Student attendance, at the UP, for the 22-23 school year. (Ex A 5)

B 01-03-2022 Neuropsychological Evaluation

Confirms Student need for special education, setting forth diagnosis of: o Attention-Deficit/Hyperactivity Disorder (ADHD), Predominately

Inattentive Presentation o Autism Spectrum Disorder

o REDACTED

o Generalized Anxiety Disorder

o REDACTED (Ex B 10)

Recommendations are made for therapeutic services, and special education service, which include: - Specific training in executive functioning and study skills, including instruction on techniques for breaking down assignments, managing daily tasks, organizing and planning ahead, monitoring her performance, multitasking, and time management skills; - Extended time for assignments and tests in all academic areas, including standardized exams; - Modifications to homework should be made so that mastery of skills as opposed to repetition of skills is emphasized; - Breaking down instructions or tasks into manageable segments; - Repetition of instructions and new material and further clarification of task

Instructions; - Frequent breaks and check-ins with teachers; - Assistance in keeping track of assignments; - Regular reminders to check her email regarding school assignments and deadlines

- Social Skills Training (Ex B 11); and - Tutoring (Ex B 11-12); - Based on her diagnostic profile, her IEP should list Other Health Impairment under her disability classification; - Placement in a small school setting that can provide her with the additional support she needs to make appropriate progress academically, behaviorally, and socially; - A classroom with a low student-teacher ratio; - Student will learn best in a classroom with peers of similar cognitive abilities; - Student should be provided with one-to-one specialized support in executive functioning and study skills; - Support should be provided by a designated learning specialist and should be embedded into her school day. (Ex B 18) C 07-13-2022 Letter from Psychologist

Confirms Student diagnosis: o Attention-Deficit/Hyperactivity Disorder (ADHD), Predominately

Inattentive Type o Autism Spectrum Disorder o Generalized Anxiety Disorder (Ex C 1)

Evidences Student need for special education services, including a smaller classroom setting with individualized supports. (Ex C 1-2)

D 08-21-2022 Ten Day Notice (TDN) Letter with E-Receipt

Parent provides notice, to the DOE, that includes: - Disagreement with recent IEP, of 07/22/2022 (Ex D 1); - Recounting documentation submitted, to the DOE regarding Student special education needs (Ex D 1-2); - Re[REDACTED] for information regarding the DOE proposed Student placement; and - Intent to continue Student placement, at the UP, and seek DOE funding. (Ex D 2)

E Various Dates Parent Outreach to Public School Parent continues notifying DOE of concerns with Student placement, re[REDACTED]s for information regarding the DOE recommended program and placement, and intent to continue Student UP placement.

F 10-14-2022 Parent Follow Up Letter to CSE

Parent continues to communicate concerns to the DOE regarding the recent IEP and proposed Student placement.

G 12-09-2022 Trimester 1 Report Card

Student UP Report Card, during the 22-23 school year, includes: - Class Reports detailing Student progress in areas of: o Language and Literature (Ex G 3) o Language Acquisition ([REDACTED]) (Ex G 4) o Global History (Ex G 5) o Biology (Ex G 6) o Mathematics (Ex G 7) o Visual Arts (Ex G 8) o Physical and Health Education (Ex G 9) o Design (Ex G 10)

H Undated Trimester 1 ATL Skill Report

Approaches to Learning (ATL) report details Student goals, and progress, in areas of: Communication (Ex H 2); Social (Ex H 3); Self-Management (Ex H 4); Research (Ex H 5); and Thinking (Ex H 6).

I 03-17-2023 Trimester 2 Report Card

Student UP Report Card, during the 22-23 school year, includes: - Class Reports detailing Student progress in areas of: o Language and Literature (Ex I 4) o Language Acquisition ([REDACTED]) (Ex I 5) o Global History (Ex I 6) o Biology (Ex I 7) o Mathematics (Ex I 8) o Visual Arts (Ex I 9) o Physical and Health Education (Ex I 10) o Design (Ex I 11)

Report details Student skills, progress, and supports, in areas of: Executive Function (Ex I 11), Reading, Writing and Math (Ex I 12).

J Undated Trimester 2 ATL Skill Report

Approaches to Learning (ATL) report details Student goals, and progress, in areas of: Communication (Ex J 2); Social (Ex J 3); Self-Management (Ex J 4); Research (Ex J 5); and Thinking (Ex J 6).

K 06-23-2023 Trimester 3 Report Card

Student UP Report Card, during the 22-23 school year, includes: - Class Reports detailing Student progress in areas of: o Language and Literature (Ex K 3) o Language Acquisition ([REDACTED]) (Ex K 4) o Global History (Ex K 5) o Biology (Ex K 6) o Mathematics (Ex K 7) o Visual Arts (Ex K 8) o Physical and Health Education (Ex K 9) o Design (Ex K 10)

L 03-11-2022 Enrollment Contract

Student Tuition includes: $[REDACTED] Tuition (Ex L 1 & 3)

A Tuition Refund Plan (TRP) (Ex L 2, T 9)

$[REDACTED] New Student Registration Fee (Ex L 3)

$[REDACTED] Parents Association Fee (Ex L 3)

$[REDACTED] Technology, materials, day trips (Ex L 3)

$[REDACTED] Total

Parent is obligated to payment via signature. (Ex L 4)

M 10-07-2022 Tuition Affidavit

Total payment received, by the UP, is $[REDACTED].00, which includes TRP fee

of $[REDACTED].00. (Ex M 1 & T 9)

N Various Dates Parent Proof of Payment

Proof of payment of the Student’s UP Tuition.

O Undated Class Schedule

Student [REDACTED]Grade, 22-23, UP Class Schedule.

P 08-30-2023 Testimony Affidavit of [REDACTED]

Student’s mother provided Testimony that included: - A description of Student challenges and diagnoses (Ex P 1); - Student’s educational history (Ex P 1-2); - IEP meeting took place, on 07/22/2022; - Parent objected to the IEP recommendations and ultimately the proposed placement (Ex P 2-3, Ex E 1,5 & 6); - Parent enrolled Student at the UP, via Contract (Ex L); - Student’s UP Tuition has been paid in full (Ex P 3); and - The UP provided Student modifications and supports, and Student made progress (Ex P 3-4)

Q 09-13-2023 Testimony Affidavit of [REDACTED]

Director, of the UP, provided Testimony that included: - A review of the Witness’ qualifications (Ex Q 1); - Characteristics of the Student’s UP program, including: o integrative support program for students that have special education diagnoses and require significant support in a mainstream school setting o some students have special education diagnoses that qualify for testing accommodations but do not require special education services through

[REDACTED]

o [REDACTED] provides executive functioning support, academic coaching and tutoring, and collaboration with classroom teachers o [REDACTED] students have [REDACTED] periods built into their schedules where they

Receive one-on-one support from their [REDACTED] teacher o [REDACTED] sessions do not interfere with any other instruction so that

[REDACTED]

students are not missing any subjects to receive the specialized instruction they require o The [REDACTED] teacher is the student’s point of contact for everything, including parent and teacher communication o The [REDACTED] teacher is responsible for working with classroom teachers on differentiation/scaffolding o This communication and coordination ensures that the [REDACTED] teacher is aware of all classroom content and assignments so that it can be previewed and supported in [REDACTED] sessions; and it ensures that the student’s special education needs are properly supported within their regular classes (Ex Q 2) o [REDACTED] serves students with language-based learning disabilities o [REDACTED] is not designed to support students with severe socialemotional disabilities, but we do offer an appropriate level of emotional support for students with anxiety rooted in their academic struggles o UP’s goal is to provide an inclusive and supportive school environment to provide special education to students who can handle a challenging, mainstream educational curriculum with specialized differentiated instruction with modifications to content, process and/or product as appropriate according to each student’s individual needs to enable them to access that curriculum (Ex Q 3) o The UP teachers are certified to teach in New York State, or another state, receive training opportunities, and professional development (Ex Q 3) o Class sizes are small, typically between 8 and 16 students, with some as small as 4 students o Students are generally grouped by age and grade level and then ability level within that grade (Ex Q 4); - Familiarity with the Student, who began attending the UP [REDACTED] Program, for the [REDACTED]grade; - Student: o required additional learning support in math and writing through school o Student works slowly and requires a lot of time and support complete her work o Based on Student’s learning profile, her attentional, anxiety and executive function deficits, a highly supportive high school environment with small classes and specific executive functioning coaching, support for attentional and executive function deficits and literacy remediation is appropriate o Appropriate support is available, at the UP (Ex Q 4-5) o A review of Student’s, 2022-2023 school year, teacher qualifications (Ex Q 5-6); o Student class is appropriate according to age, learning style, and peer role models (Ex Q 5) o Student receives significant individual attention (Ex Q 5-6) o Student academic needs and supports are detailed (Ex Q 6-12) o Student has areas of progress are detailed (Ex Q 9) o Student’s educational team constructs individualized lesson plans, small group lessons, and utilizes teaching strategies for students with processing and writing disorders, and ADHD. [REDACTED] worked with all classroom teachers to ensure Student received needed on-task focusing prompts in class to compensate for her attention deficits (Ex Q

9) o Student continues to make progress at the UP, which provides support to allow Student access to the regular curriculum while having special education needs met. (Ex Q 12)

FINDING OF FACTS AND DECISION

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

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

v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

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

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch.

Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

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

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

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

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 2022-2023 School Year The DOE opted not to present a defense to the Parent’s allegations.

The district has presented no witnesses in this matter.

Parent concedes that an IEP was drafted, on July 22, 2022, which classified the Student as other health impaired; recommended general education with special education teacher support services (SETSS) for 5 periods each week and 2 periods of counseling (Ex A 1)

Said IEP is not submitted into evidence.

The DOE has not evidenced development of an appropriate IEP for the commencement of the 22-23 school year.

DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 22-23 school year.

I find the DOE failed to offer the Student a FAPE for the 22-23 school year.

UP Placement for the 22-23 School Year

Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 22-23 school year.

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

Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex B, C, G, H, I, J, K, O, P & Q)

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

I find UP provides an appropriate education and program for the Student for the 22-23 school year.

TUITION FUNDING 2022-2023 School Year

I find the Parent is entitled to DOE reimbursement of the Student’s UP Tuition, for the 22-23 school year.

Parent provides appropriate TDN to the DOE. (Ex D)

Evidence show that Student’s, 22-23, UP [REDACTED] Tuition, includes: $[REDACTED].00 Tuition (Ex L 1 & 3)

A Tuition Refund Plan (TRP) (Ex L 2, T 9)

$[REDACTED].00 New Student Registration Fee (Ex L 3)

$[REDACTED] Parents Association Fee (Ex L 3)

$[REDACTED].00 Technology, materials, day trips (Ex L 3)

$[REDACTED].00 Total

Parent is obligated to payment of Student’s UP Tuition, via signature. (Ex L 4)

Total payment received, by the UP, is $[REDACTED].00, which includes TRP fee of

$[REDACTED].00. (Ex M 1 & T 9)

Parent provides prof pf payment of Student’s 22-23 UP Tuition. (Ex N)

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 22-23 school year.

I find the Parent is entitled to full reimbursement of Student’s 22-23 UP Tuition, as Ordered below.

ORDER

1. The Department of Education (DOE) failed to offer the Student a FAPE for the 2022-2023 school year.

2. The [REDACTED], with the [REDACTED] Program (UP) provides Student with an appropriate program and placement, for the 22-23 school year.

3. The DOE shall reimburse the Parent for the cost of Student’s 22-23 Tuition, for attendance at the [REDACTED], with the [REDACTED] Program (UP), in the amount of: $[REDACTED].00.

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

5. This decision is subject to appeal and review by the State Review Officer.

DATED: 10/01/2023

DANIEL AJELLO

DANIEL AJELLO

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 re[REDACTED] 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 re[REDACTED] for review, re[REDACTED] for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the re[REDACTED] 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.