NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 252166
Student's Name: [REDACTED] [1]
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Requested By: Parent
Date of Hearing: 08/16/2023 Pre-Hearing Conference; 08/22/2023; 09/06/2023; 09/27/2023
Actual Record Close Date: 10/03/2023
Decision Date: 10/04/2023
Hearing Officer: Daniel Ajello Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
| Date | Appearance Note | For the Student | For the Department of Education |
|---|---|---|---|
| 08/16/2023 | (All Parties Appeared Via Teleconference) | [REDACTED], ESQ., Attorney; [REDACTED], ESQ., Attorney | [REDACTED], ESQ., District Representative |
| 08/22/2023 | (All present by video or telephone) | [REDACTED], Attorney; [REDACTED], Attorney | [REDACTED], Attorney |
| 09/06/2023 | (All present by video or telephone) | [REDACTED], Attorney; [REDACTED], Attorney; [REDACTED], Parent | [REDACTED], Attorney |
| 09/27/2023 | (All present by video or telephone) | [REDACTED], Attorney; [REDACTED], Attorney; [REDACTED], Parent; [REDACTED], Therapist at [REDACTED] Academy | [REDACTED], Attorney |
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
| Entered | Ex | Date | Document | Pages |
|---|---|---|---|---|
| 08/16/2023 | A | 07-28-2023 | Due Process Complaint (DPC) with Receipt | 04 |
| 09/27/2023 | B | 09-14-2021 | Ten Day Notice (TDN) | 02 |
| 09/27/2023 | C | 02-12-2021 | Referral Letter | 02 |
| 09/27/2023 | D | 02-19-2021 | [REDACTED] Report | 02 |
| 09/27/2023 | E | Undated | Treatment Summary | 01 |
| 09/27/2023 | F | 04-14-2021 | Psychological Evaluation | 41 |
| 09/27/2023 | G | 05-14-2021 | [REDACTED] Academy Initial Assessment | 02 |
| 09/27/2023 | H | 06-09-2021 | [REDACTED] Academy Initial Plan of Care | 02 |
| 09/27/2023 | I | 21-22 | [REDACTED] Academy Progress Reports | 11 |
| 09/27/2023 | J | 01-27-2022 | [REDACTED] Academy Discharge Summary | 03 |
| 09/27/2023 | K | 11-29-2021 | Individualized Education Program (IEP) Meeting Request | 01 |
| 09/27/2023 | L | 01-24-2022 | E-Mail Correspondence to CSE | 02 |
| 09/27/2023 | M | 01-31-2022 | [REDACTED] Academy Report Card | 02 |
| 09/27/2023 | N | 01-31-2022 | [REDACTED] Academy Transcript | 01 |
| 09/27/2023 | O | 05-10-2021 | [REDACTED] Academy Admissions Agreement | 05 |
| 09/27/2023 | P | 5/21 to 9/21 | [REDACTED] Academy Tuition Agreement | 03 |
| 09/27/2023 | Q | 2021 | [REDACTED] Academy Invoices | 03 |
| 09/27/2023 | R | 04-28-2022 | [REDACTED] Academy Affidavit | 01 |
| 09/27/2023 | S | 21-22 | [REDACTED] Academy Proof of Payment | 06 |
| 09/27/2023 | T | 05-27-2022 | [REDACTED] Academy Class Schedule | 01 |
| 09/27/2023 | U | Undated | [REDACTED] Academy Program Description | 03 |
| 09/27/2023 | V | 06-21-2022 | [REDACTED] Affidavit | 01 |
| 09/27/2023 | W | 2022 | [REDACTED] Proof of Payment | 06 |
| 09/27/2023 | X | 01-31-2022 | [REDACTED] Enrollment Contract | 02 |
| 09/27/2023 | Y | Undated | [REDACTED] Class Schedule | 01 |
| 09/27/2023 | Z | 07-14-2021 | [REDACTED] Program Description | 02 |
| 09/27/2023 | AA | Undated | [REDACTED] Remote Learning Plan | 02 |
| 09/27/2023 | BB | 03-23-2022 | [REDACTED] Progress Report 3rd Quarter | 08 |
| 09/27/2023 | CC | 06-16-2022 | [REDACTED] Progress Report 4th Quarter | 08 |
| 09/27/2023 | DD | 09-19-2023 | Affidavit of Testimony of [REDACTED]; Sworn to on 09/27/2023 | 12 |
| 09/27/2023 | EE | 09-19-2023 | Affidavit of Testimony of [REDACTED] | 10 |
| 09/27/2023 | FF | 09-20-2023 | Affidavit of Testimony of [REDACTED]; Sworn to on 09/27/2023 | 06 |
DEPARTMENT OF EDUCATION (DOE)
| Entered | Exhibit | Document |
|---|---|---|
| 08/16/2023 | 1 | Excluded Duplicate |
| 08/16/2023 | 2 | Individualized Education Program, 06/21/2021, 28 pages |
| 09/06/2023 | 1 | Individualized Education Plan (IEP), 6/21/21, 28 pages (Formerly Exhibit 2) |
| 09/06/2023 | 2 | Meeting minutes, 6/21/23, four pages |
| 09/06/2023 | 3 | Consent for electronic mail, 9/11/20, one page |
| 09/06/2023 | 4 | Consent, 9/15/20, 13 pages |
| 09/06/2023 | 5 | Social history updates, 2/24/20, two pages |
| 09/06/2023 | 6 | [REDACTED] discharge summary, 5/13/21, four pages |
| 09/06/2023 | 7 | [REDACTED] Treatment Plan, 2/24/21, five pages |
| 09/06/2023 | 8 | [REDACTED] statement, unidentified date, one page |
| 09/06/2023 | 9 | [REDACTED] statement, 2/19/21, two pages |
IMPARTIAL HEARING OFFICER
| Entered | Exhibit | Document |
|---|---|---|
| 08/16/2023 | I | Notice of Appointment, 08/01/2023, 4 pages |
| 08/16/2023 | II | Teleconference Notice, 08/01/2023, 1 page |
| 08/16/2023 | III | Notice of Appearance, 08/14/2023, 1 page |
| 08/16/2023 | IV | Motion to Dismiss, 08/10/2023, 38 pages |
| 09/06/2023 | V | Interim Order, 08/22/2023, 7 pages |
INTRODUCTION
On 08/01/2023, 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 took place, on 08/16/2023. Discussions, on the Record primarily related to the DOE Motion to Dismiss. A Hearing was set to consider the Motion, on 08/22/2023. (IHO Ex IV, T 6-24) Interim Order was issued, on 08/22/2023, denying the Motion to Dismiss. (IHO Ex IV) Hearing continued, on 09/06/2023, to allow an opportunity for the DOE to defend against the allegations contained in the DPC. The DOE relied upon submission of documents entered into evidence, in an effort to defend against the allegations, contained in the DPC. (T 50-52, Ex A) 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 2021-2022 school year. Allegations include, the DOE failed to receive a placement offer prior to the start of the 21-22 school year. (Ex A 1-2) Parent seeks relief that includes funding of unilateral placements, at [REDACTED] Academy [REDACTED](May 2021 -January 2022), and [REDACTED] School ([REDACTED]) (January 2022-June 2022), for the 21-22 school year. (Ex A 2-3) The Student had transitioned from residential placement, [REDACTED], to [REDACTED], during the 21-22 school year. (T 70)
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 21-22 school year. Parent position was outlined by the Parent’s Attorney, and included: that the Student was entitled to a residential placement, for the 21-22 school year, and the DOE never made such a placement. This left the Parent to unilaterally place the Student, at [REDACTED]. Parent contends [REDACTED] was an appropriate Student placement, as is exemplified by transitioning out of the program, into [REDACTED]. (T 72); Student continued to make progress, at [REDACTED]. (T 72-73); Parent cooperated throughout the process; and Parent is entitled to reimbursement for each 21-22 Student placement. (T 73)
At Hearing, the Parent supported its 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:
[REDACTED], Therapist at [REDACTED] Academy
Provided Testimony, at Hearing, which included:
- Student treatment was based on her prior diagnosis (T 77); and
- “So on the academic side the ALL ([REDACTED]) teacher would take care of it and disperse that information to the academic team but, as stated, the treatment team met weekly and also implemented plans that supported her socially and therapeutically, that play a role in her academics.” (T 79)
[REDACTED], Parent
Provided Testimony, at Hearing, which included:
- Affidavit of Testimony, at paragraph 21, the date should be 2021. (T 82, Ex FF 4)
A 07-28-2023 Due Process Complaint (DPC) with Receipt Details Parent allegations, and sought after relief, related to an alleged denial of FAPE, and sought after relief for 21-22 unilateral placement of the Student.
B 09-14-2021 Ten Day Notice (TDN) Parent communicates with the DOE:
- notice of unilateral placement for the 2021-2022 school year regarding Student;
- Student challenges, which include: Adjustment Disorder with disturbances of emotions and conduct; Major Depressive Disorder, Recurrent, Mild; Special Learning Disorder with Impairment in Reading (Word Reading); and Specific Learning Disorder with Impairment in Mathematics (Calculation);
- In February 2021, we advised that the CSE that Student was presenting with significant anxiety and emotional concerns. Upon the recommendation of her teachers, doctors and/or clinicians we placed her in a therapeutic wilderness program. As we advised the CSE, she requires immediate placement in a therapeutic residential program and we requested an emergency meeting with the CSE in order to have her classified as a child with a disability and to consider a residential program recommendation;
- In June 2021, the DOE finally agreed to placement in a therapeutic residential school;
- Student was discharged from previous program, and in the absence of any appropriate program recommendation, we enrolled her at [REDACTED];
- To date, we have not received any final placement recommendation pertaining to a residential program;
- In the absence of any appropriate program recommendation we are going to continue her enrollment at [REDACTED] (Ex B 1); and
- Parent will seek reimbursement of all associated costs. (Ex B 1-2)
C 02-12-2021 Referral Letter Parent communicates with the DOE regarding seeking placement in a therapeutic residential program.
D 02-19-2021 [REDACTED] Report Confirms Student had to leave the [REDACTED] School, due to health and anxiety issues. (Ex D 1) Recommends Student be placed in a therapeutic residential program. (Ex D 2)
E Undated Treatment Summary Student’s clinician since October 2020, details some of Student’s challenges, and behaviors, which resulted in recommendation for restrictive school setting and classification of emotional disturbance.
F 04-14-2021 Psychological Evaluation Details Student testing and reveals Student challenges, including diagnoses of:
- Adjustment Disorder with disturbances of emotions and conduct;
- Major Depressive Disorder, Recurrent, Mild;
- Specific Learning Disorder with Impairment in Reading (Word Reading);
- Specific Learning Disorder with Impairment in Mathematics (Calculation) (Ex F 31-32)
G 05-14-2021 [REDACTED] Academy [REDACTED] Initial Assessment Admission Assessment details areas of concern, and interventions, relative to the Student, including: High Risk Behaviors and Intervention Strategies; Parent/Family Needs (Ex G 1); Academic and Medical Needs (Ex G 2).
H 06-09-2021 [REDACTED] Academy [REDACTED] Initial Plan of Care Plan of Care sets forth Student diagnoses (Ex H 1); and Subject Area Goals (Ex H 1-2).
I 21-22 [REDACTED] Academy [REDACTED] Progress Reports Indicate successful Student grades, and accumulation of credits, while at [REDACTED].
J 01-27-2022 [REDACTED] Academy [REDACTED] Discharge Summary [REDACTED] determines the Student can leave the program, with support, to transition back home. (Ex J 2) Student is noted to have exceeded academically, at [REDACTED], which provided structure and classroom size to support the Student. (Ex J 2) Recommendation is made for Student to attend: a school with small classrooms to help with focus; a small special education school that provides therapeutic support; and that provides a structured day with some flexibility for emotional support, if needed. (Ex J 2)
K 11-29-2021 Individualized Education Program (IEP) Meeting Request Parent communicates, with the DOE, who “is currently attending [REDACTED] Academy and is ready to leave this residential program in January, 2022. We would like to request a new meeting to determine her next placement.” (Ex K 1)
L 01-24-2022 E-Mail Correspondence to CSE Parent advises the DOE that since requesting the IEP meeting, which is set for 02/04/2022, the Student has since been discharged from [REDACTED] and is currently enrolled at [REDACTED]. (Ex L 1)
M 01-31-2022 [REDACTED] Academy [REDACTED] Report Card Student is noted to have been successful at [REDACTED], receiving passing grades.
N 01-31-2022 [REDACTED] Academy [REDACTED] Transcript Student is noted to have been successful at [REDACTED], accumulating 5.5 Credits.
O 05-10-2021 [REDACTED] Academy [REDACTED] Admissions Agreement [REDACTED] Admission Agreement sets forth conditions of Student enrollment, as agreed to by the Parents. (Ex O 5)
P 5/21 to 9/21 [REDACTED] Academy [REDACTED] Tuition Agreement Cost of Student attendance, at [REDACTED], is set forth as $[REDACTED].00 per day. Cost of Student [REDACTED] attendance is estimated to be $[REDACTED].00.
Q 2021 [REDACTED] Academy [REDACTED] Invoices Actual cost, of Student [REDACTED] attendance, is evidenced to include:
- 126 days (5/14/2021 TO 9/16/2021) $[REDACTED] per day = $[REDACTED]
- Computer Fee $[REDACTED]
- Student Fund $[REDACTED]
- Equine Riding Program (Optional) $[REDACTED]
- Equine Boarding (Optional) $[REDACTED] (Ex Q 1)
- 63 days (09/17/2021 to 11/18/2021) $[REDACTED] per day = $[REDACTED] (Ex Q 2)
- 63 days (11/19/2021 to 01/20/2022) $[REDACTED] per day = $[REDACTED] (Ex Q 3)
R 04-28-2022 [REDACTED] Academy [REDACTED] Affidavit Total Amount paid by Parents for Student Tuition is set forth as $[REDACTED].
S 21-22 [REDACTED] Academy [REDACTED] Proof of Payment Parent sets forth proof of [REDACTED] Tuition Payments.
T 05-27-2022 [REDACTED] Academy [REDACTED] Class Schedule Student schedule, while attending [REDACTED].
U Undated [REDACTED] Academy [REDACTED] Program Description Sets forth general characteristic, of [REDACTED], which include:
- all teachers incorporate experiential learning throughout their course offerings;
- we assess each new student to help us understand her personal learning style.;
- assessments are great assets to our teachers as they prepare their classes and fine-tune their teaching techniques to complement the students' various learning styles;
- each student receives the attention she needs in each classroom;
- class sizes at our school are also very student friendly;
- classes rarely exceed ten students and frequently have five to seven;
- ample opportunity for each young lady to participate, answer and field questions, take a leadership roll in class and receive one-on-one attention; and
- smaller class sizes also help challenge the curiosity of our students (Ex U 1); and
- a therapeutic program for emotional health. (Ex U 2)
V 06-21-2022 [REDACTED] ([REDACTED]) Affidavit The amount of $[REDACTED].00 has been paid to [REDACTED] for Student attendance, during the 21-22 school year.
W 2022 [REDACTED] ([REDACTED]) Proof of Payment Proof of payment of Student [REDACTED] tuition is provided.
X 01-31-2022 [REDACTED] ([REDACTED]) Enrollment Contract Student enrollment contract sets forth 21-22 Tuition, for Student attendance, as $[REDACTED].00. (Ex X 1) Parents are obligated to payment under the Contract, via signature. (Ex X 2)
Y Undated [REDACTED] ([REDACTED]) Class Schedule Student’s [REDACTED] class schedule is provided.
Z 07-14-2021 [REDACTED] ([REDACTED]) Program Description General characteristics, of [REDACTED] are detailed, including:
- independent school which provides a therapeutic day program;
- program provides every student individually formulated support in a structured and respectful environment;
- clinical program includes unlimited access to services in the Counseling Center;
- therapeutic support groups;
- an advising program which operates through three meetings each day, two of which bookend the school day;
- Advising group meetings are used to provide deep, regular attention to academic, social, and emotional experiences;
- Executive functioning, interpersonal interactions, coping skills, and self-advocacy are all targeted areas for development (Ex Z 1);
- Serves students with challenges that include refusing to work or even attend school, Attention Deficit Hyperactivity Disorder (ADHD), anxiety, and perhaps learning issues; and
- Specially designed program and integrated support system s teach students to trust themselves and other, [REDACTED]in confidence and self-esteem, and meet the challenges of college and everyday life. (Ex Z 2)
AA Undated [REDACTED] ([REDACTED]) Remote Learning Plan [REDACTED] Remote Learning Plan is detailed, in case such a plan is needed.
BB 03-23-2022 [REDACTED] ([REDACTED]) Progress Report 3rd Quarter Student is shown to be successful while at the [REDACTED] program.
CC 06-16-2022 [REDACTED] ([REDACTED]) Progress Report 4th Quarter Student is shown to be successful while at the [REDACTED] program.
DD 09-19-2023 Affidavit of Testimony of [REDACTED], Sworn to 09/27/2023 Therapist at [REDACTED] provides Testimony that includes:
- Her qualifications;
- [REDACTED] characteristics such as: “a year-round, young women’s therapeutic boarding, college preparatory school committed to experiential education and transformative therapeutics embracing virtuous relationships, personal excellence, and emotional breakthroughs meant to inspire altruistic life missions for girls and their families.” (Ex DD 1);
- [REDACTED] “students typically arrived with diagnoses and issues such as ADHD, anxiety, depression, school avoidance, higher functioning ASD, oppositional behavior, family discord, bipolar disorder, and academic underachievement. Additionally, our arriving students often demonstrated conflicts with peers, emotional and behavioral dysregulation, contentious family relationships, lack of motivation, academic problems, and a general inability to maintain positive development.” (Ex DD 2-3);
- [REDACTED] had full-time clinicians on staff and they were all appropriately licensed;
- [REDACTED] also required staff to participate in training to maintain awareness and knowledge of policies and procedures around our clinical model, in addition to state mandated training like CPR, mandated reporting and suicide prevention;
- [REDACTED] offered parent seminars, educational opportunities and parent teacher conferences and therapeutic retreats involving staff, parents and students;
- Students had one-on-one counseling sessions approximately 60-90 minutes per week, one family phone call per week, and group sessions 5 days per week;
- [REDACTED]’s approach also used neurofeedback, animal therapy, equine therapy, group drumming, outdoor adventures and service activities (Ex D 3);
- A review of the admissions process (Ex DD 3);
- Each student is assessed to understand personal learning style (Ex DD 4);
- Familiarity with the Student, serving as her primary therapist;
- Description of Student: “significant social-emotional needs that have interfered with her ability to make progress in school. Despite her academic strengths, due to the severity of her social-emotional struggles, she was unable to progress in school.” (Ex DD 5);
- Upon entering [REDACTED], Student had a history of anxiety, depression and self-injurious behavior. These struggles were exacerbated by the pandemic. When she arrived, she had diagnosis of Adjustment Disorder with disturbances of emotions and conduct; Major Depressive Disorder, Recurrent, Mild; Specific Learning Disorder with Impairment in Reading (Word Reading); and Specific Learning Disorder with Impairment in Mathematics, (Calculation). (Ex DD 5);
- A review of additional Student challenges, and struggles, affecting her education (Ex DD 6-7);
- Witness provided individual sessions to Student each week for the 21-22 school year (Ex DD 6);
- A review of Student [REDACTED] schedule, and academic program (Ex DD 6-7);
- Student required supports that included: small class sizes; more individualized attention and support to help facilitate her engagement and participation and minimize any frustrations making her unavailable for learning; the use of different coping mechanisms to deescalate; working with other staff members in another space or sitting on the porch outside; and academic coaching and support (Ex DD 9);
- Student made significant academic progress, and made progress emotionally (Ex DD 9-10);
- Student progresses therapeutically and academically (Ex DD 11);
- Witness notes that: “the small class size allowed [Student] to receive more individualized and one-to one teacher support when needed, which supported her attentional and social-emotional needs. Likewise, the therapeutic classroom environment, academic supports and the constant emotional supports were critical for [Student]. They enabled [Student] to regulate her emotions and behavior in the moment while in the classroom and more fully engage in the learning process. Each aspect of [Student’s] program was necessary and critical to his social-emotional and academic progress.” (Ex DD 10);
- Student left the program in good standing having completed all aspects of the program (Ex DD 11) and
- [REDACTED] was an appropriate 21-22 placement for the Student, and met Student’s needs. (Ex DD 12)
EE 09-19-2023 Affidavit of Testimony of [REDACTED] Clinical Director of [REDACTED] provided Testimony that included:
- Witness qualifications (Ex EE 1-2);
- Overseeing the [REDACTED] clinical program (Ex EE 2);
- [REDACTED] provides personalized education, an intensive advising program, therapeutic support, and collaboration with families and treatment teams; approximately 80 students, between 8th and 12th grades, currently attend [REDACTED]; average class size is 5- 10 students, which results in a 4:1 student-to-staff ratio; curriculum is substantially equivalent to the New York State Core Curriculum and is implemented with the support of our Curriculum Coordinator, who is a certified special education teacher; and 90%-95% of [REDACTED]’s students have IEPs, most of which contain classifications of either emotional disturbance or other health impairment (Ex EE 2); and staff are very experience; clinical program features on demand individual counseling (Ex EE 3);
- The [REDACTED] program includes additional academic supports for each student as follows: Daily Student Prep Time in which all students receive additional assistance, including individual or small group academic support; additional time provided after school 4 times per week for students who need extra time completing assignments and/or additional support with organizational and study skills; quarterly student reports, which are used to provide assessment of the current quarter’s work and create objectives for the subsequent reporting periods; “Wednesday Sheets,” which provide individual feedback for each student are reviewed 1:1 with students by their advisor on a weekly basis. A copy is also shared with parents each week; our Learning Specialist, who is a certified special education teacher, assists and trains teachers to address various learning needs as well as works with individual students who need further individualized support (Ex EE 3);
- [REDACTED] provides support via Advisory Program where: each student meets with an assigned advisor, each of whom is also a classroom teacher; each student meets individually with their advisor at least once per week so that the advisor can provide feedback about their academic and behavioral progress in each class; each student will meet with their advisor three times a day in small group meetings; morning check-ins are designed to help prepare students for the day and assess whether staff need to address any issues likely to impact their functioning that Day; mid-morning advising time is structured to help students maintain organization, compose weekly goals, learn coping skills (including DBT), and participate in group discussions; end-of-day meetings are held so that the advisor can review the student’s plan book and ensure that the student has all materials that are necessary for the student to complete their homework assignments (Ex EE 4);
- [REDACTED] program includes daily staff meetings and parental involvement (Ex EE 4);
- Familiarity with the Student (Ex EE 5);
- A review of Student struggles, and recent educational history (Ex EE 5-6);
- A review of Student [REDACTED] academic program (Ex EE 6-8);
- Academic Student supports included: teacher prompting; frequent check-ins and concepts broken down when she became overwhelmed; small class sizes offered at [REDACTED] were very helpful as it allowed Student to receive personalized attention; teachers were able to be attuned to when Student might be off task or distracted and Student was redirected; material was broken up and scaffolding was used; and Student participated in [REDACTED]’s Advisory Program (Ex EE 8);
- Details regarding Student’s participation, and related support, via the Advisory Program (Ex EE 8-9);
- Student utilized the [REDACTED] Counseling Center to develop coping strategies (Ex EE 9-10);
- As Student transitioned from [REDACTED] back home the Student required the intensive therapeutic environment provided by [REDACTED]; and
- While at [REDACTED] the Student progressed academically, emotionally and socially. (Ex EE 10)
FF 09-20-2023 Affidavit of Testimony of [REDACTED] As noted previously, dates referred to at Paragraph 20 should be year 2021. (T 82, Ex FF 4) Parent Testimony includes:
- A review of Student challenges and educational history, leading up to placement at [REDACTED] Ex (FF 1-2);
- IEP meeting, of 06/21/2021 (Ex 1), resulted in recommendation of a residential placement, for the Student (Ex FF 2-3);
- Parent did not receive a Student placement related to the 06/21/2021 (Ex 1) IEP meeting (Ex FF 2); and did not receive the IEP until October of 2021 (Ex FF 3);
- Student made progress at [REDACTED], leading to recommended transition back home (Ex FF 3-4);
- Upon discharge Parent notified the DOE of Student enrollment at [REDACTED] (Ex FF 4);
- An IEP meeting was held, on 02/04/2022, which recommended a 15:1 classroom, Parent reached out to the program for additional information, and never heard back (Ex FF 4);
- Student continued to make progress at [REDACTED];
- Parent signed Contract with [REDACTED], and paid the tuition in full of $69,195.00, for Student attendance related to the 21-22 school year (Ex P, R & FF 4);
- Parents signed a Contract with [REDACTED], and paid Student tuition in full, in the amount of $[REDACTED].00 (Ex X); and
- Parent believes [REDACTED] and [REDACTED] were each appropriate to meet Student’s needs during her attendance at each program. (Ex FF 5)
1 Individualized Education Plan (IEP), 6/21/21, 28 pages (Formerly Exhibit 2) IEP confirms Student classification of Emotional Disturbance. (Ex 1-1) IEP recommends services, including, a Non Public School Residential Placement, and Counseling, commencing 07/01/2021. (Ex 1-21)
Additional documents are submitted which support the IEP recommended placement (Ex 2, 5, 6, 7, 8 & 9); and which reflect Parent cooperation throughout the IEP process. (Ex 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]- [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 le[REDACTED]lly 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; [REDACTED]gliardo 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 2021-2022 School Year
The DOE has not evidenced development of an appropriate IEP, and placement, for the Student, for the 21-22 school year. DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 21-22 school year. I find the DOE failed to offer the Student a FAPE for the 21-22 school year.
UP Placements for the 21-22 School Year
Testimony and documentary evidence, as reviewed above, support [REDACTED] and [REDACTED] as appropriate Student placements for the 21-22 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. Regarding [REDACTED], Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex C, D, E, F, G, H, I, J, M, N, O, T, U, DD, FF & Ex 1, 6, 7, 8 & 9) Regarding [REDACTED], Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex C, D, J, X, Z, AA, BB, CC, EE, FF & Ex 1, 6, 7, 8 & 9) I find that each, [REDACTED] and [REDACTED], provides special education services specifically tailored to meet the needs of the Student. I find each, [REDACTED] and [REDACTED], provides an appropriate education and program for the Student, while she attended, for the 21-22 school year.
TUITION FUNDING 2021-2022 School Year
I find the Parent is entitled to Tuition funding, via the DOE, for [REDACTED] and [REDACTED], for Student attendance, for the 21-22 school year. The DOE has denied a FAPE to the Student for the 21-22 school year. Paren is not evidenced to have frustrated any attempt, of the DOE, to offer the Student a FAPE, for the 21-22 school year. Parent provided appropriate TDN and communications throughout the 21-22 school year. (Ex B, C, J & K) Parents enrolled Student at [REDACTED], via Admissions Agreement, and Tuition Agreement. (Ex O & P) Parents received Invoices related to Student attendance, at [REDACTED]. (Ex Q) Student [REDACTED] Tuition has been paid in full. (Ex R & S) Student Tuition, for [REDACTED] 21-22 Attendance is calculated to be $[REDACTED]. (Ex P, R & FF 4) Parents enrolled Student at [REDACTED], via Enrollment Contract. (Ex X) Student Tuition, of $[REDACTED].00 has been paid in full. (Ex V, W & FF 5) I find the Parent is entitled to full reimbursement of Tuition for each [REDACTED] and [REDACTED] for Student Tuition related to attendance, for the 21-22 school year.
ORDER
1. The Department of Education (DOE) failed to offer the Student a FAPE for the 2021-2022 school year.
2. [REDACTED] Academy [REDACTED](May 2021 -January 2022), and [REDACTED] School ([REDACTED]) (January 2022-June 2022), each provided the Student an appropriate program and placement, for the 21-22 school year.
3. The DOE shall reimburse Parent the cost of the Student’s 21-22 Tuition as detailed below:
o [REDACTED] Academy [REDACTED]: $[REDACTED].00; and o [REDACTED] School ([REDACTED]): $[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: October 4, 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 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.
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this Findings of Fact and Decision and must be removed prior to public distribution.