Impartial Hearing Decision

CASE NUMBER: 252423

FINDINGS OF FACT AND DECISION

Case Number: 252423

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

School District: [REDACTED]

Hearing Requested by: Parent

Request Date/Date Complaint Filed: 8/9/2023

Date(s) of Hearing: 10/30/2023

Actual Record Closed Date: 11/12/2023

Date of Decision: 11/13/2023

Hearing Officer: Paul J. DeSena

INTRODUCTION

This is a decision in a hearing under the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act of 1973. This case concerns Student, who was, for the 2022/23 school year, a [REDACTED]-year-old student who attended the Private School (“Private School”). (Ex. A, at 1). In the Parent’s Due Process Complaint (“DPC”), the Parent alleged that the Department of Education (“DOE”) failed to provide the Student a Free Appropriate Public Education (“FAPE”) for the 2022/23 school year. (Ex. A).

The Parent requests tuition reimbursement for the 2022/23 school year for Student’s attendance at the Private School, a private program that is not approved by the Commissioner of Education for the education of students with disabilities. (Ex. K, at ¶¶ 15-16).

As discussed below, I find that the DOE denied the Student a FAPE for the 2022/23 school year, that the Private School offered the Student specially designed instruction sufficient to meet the Student’s needs, and that the equities support the Parent’s requested relief.

PROCEDURAL HISTORY

The Parent filed this case on 8/9/2023. (Ex. A, at 1). I was appointed Impartial hearing Officer (“IHO”) on 8/10/2023. I conducted a Pre-Hearing Conference (“PHC”) with the Parties on 9/12/2023 (See PHC Tr.) and a Status Conference on 10/13/23 (See Status Conf. Tr.).

A hearing was held on 10/30/2023. (See generally, Hearing Tr). The Parent’s attorney represented the Parent. (Id.). The DOE attorney represented the DOE. Id.

At the hearing, the District produced no exhibits, called no witnesses, waived its opening and closing statements, and conceded Prong #1 of the below analysis. (Hearing Tr., at 45-48). The Parents argued that the DOE denied the Student a FAPE, that the Parent’s unilateral placement was appropriate for the Student, and that the equities supported an award of tuition. (Hearing Tr., at 45-47). The Parents introduced exhibits A–K into the record.^[1] (Id., at 41-42). The Parent’s attorney delivered an opening statement. (Id., at 41-42). The Parent called two witnesses including the Parent and the Head of the Middle School at the Private School (both by affidavit). (Exs. J, K). The DOE did not cross examine any of the witnesses, and the Parent’s attorney waived their closing statement. (Hearing Tr., at 48-49). This order follows.

FINDINGS OF FACT

After a full review of the record generated at hearing, I make the following findings of fact and determinations.

At the start of the 2022/23 school year, the Student was an [REDACTED]-year-old student who attended the Private School. (Ex. A). Student is diagnosed with cerebral palsy, muscular scoliosis, anxiety, and learning disability in reading and math, which renders school and instruction “a significant challenge.” (Ex. J, at ¶ 19; Ex. K, at ¶ 5).

On 5/4/2022, an IEP meeting was held, which the Parent attended. (Ex. K, at ¶ 12). The CSE recommended a 12-month program consisting of a 12:1:1 classroom in a District specialized school for the summer of 2022, and thereafter, an ICT class along with related services including counseling, occupational therapy, and physical therapy for the balance of the 2022/23 school year. (Id.). The DOE failed to send a placement letter prior to the start of either the summer or fall sessions of the 2022/23 school year. (Ex. K, at ¶ 14). On 10/11/2022, the Parent sent the District a “Ten Day Notice,” over a month after the Student began attendance at the Private School. (Exs. B, G). At the Hearing, the District conceded that it had failed to provide the Student with a FAPE. (Hearing Tr., at 45).

The Private School is a “private Jewish day school for students with language-based learning difficulties in grades one through eight…[the school] admits children of average to above average intelligence whose primary difficulties are in language and learning.” (Ex. J, at ¶ 5). The school “provides small group instruction using a variety of modalities, including the PAF Reading Program and the Hochman Method writing program.” (Ex. J, at ¶ 7). The school “provides extensive professional development opportunities” for its faculty and has “a comprehensive training program for new hires before they start and throughout their first year.” (Ex. J, at ¶ 11). The school’s teachers are “observed frequently by a supervisor and coached by academic coaches or supervisors across all the subjects that they teach.” (Ex. J, at ¶ 11). The Private School’s teachers “all have prior teaching experience,” “typically have a Master’s degree in education or special education,” and “most are also New York State certified in Special Education.” (Ex. J, at ¶ 12). The Student’s Language Arts teacher has a Master’s in special education and her Math teacher holds a Master’s degree in School Leadership. (Ex. J, at ¶¶ 22-24).

The sizes of the Student’s classes varied by subject and, ostensibly, the Student’s needs. (Ex. J, at ¶ 21). In Language Arts, the Student was placed in a 6:1 classroom setting; in writing, a 12:2 setting; in Math, a 7:1 setting; in History, a 15:2 setting; in Science, a 15:2 setting, in Skills, a 13:3 setting, and in her Advisory classroom, a 12:2 setting. (Ex. J, at ¶ 21). Based on the Student’s progress reports and teacher feedback, the Head of the Middle School testified that the Student’s need for this level of service was evident. (Id.). Like the Student, “all the student” at the Private School struggle “with language-based learning challenges.” (Ex. J, at ¶ 41). Roughly 15% of the instruction student receives is religious in nature. (Ex. J, at ¶ 39).

In Language Arts, the Student required, and was provided,” a significant amount of 1:1 support and direct teacher intervention to ensure that she was taking in the material,” including “extensive scaffolding and breaking down the material into smaller chunks.” (Ex. J, at ¶ 28). For the 2022/23 school year, the Student’s writing class “utilized direct and implicit instruction.” In Math, the “size of the group was critical” in helping the Student stay engaged and attentive, and utilized a “multisensory approach, which focused on breaking down the language and concepts in math using manipulatives (clay models) to move from very concrete to more abstract and algorithmic approached” to the subject. (Ex. J, at ¶¶ 33-34). The Student’s social and emotional needs were met through the Advisory program – a curriculum developed to help Students build self-esteem, self-advocacy, caring relationships between students, and good decision-making skills – and frequent check-ins with the mental health team. (Ex. J, at ¶ 37).

By the end of the 2022/23 school year, the Student was “able to independently write a simple paragraph” and has “successfully applied her writing skills to other areas.” (Ex. J, at ¶ 32). Throughout the school year, the Student also exhibited greater independence in solving multi-step problems. (Ex. J, at ¶ 33). Over the course of the year, the Student “made academic and social-emotional progress” at the Private School. (Ex. J, at ¶ 42).

The Tuition for the Student’s 2022/23 school year at the Private School was $70,700. (Ex. H).

CONCLUSIONS OF LAW AND ANALYSIS

When a parent believes that a school district has failed to provide a student with a FAPE, a parent may unilaterally enroll the child in a private school and seek tuition payment from the school district by filing a due process complaint. (Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 376 [2d Cir. 2014] (quoting Reyes ex rel. R.P. v. New York City Dep’t of Educ., 760 F.3d 211, 215 [2d Cir. 2014]). The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” (20 U.S.C. § 1415[b][6][A]).

A district must pay for the cost of a student’s tuition at a private school if the three prongs of the Burlington/Carter test are met: (1) the DOE denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition. (See Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-15 [1993]).

In IDEA due process hearings in New York, school districts have the burden of proof – including the burden of production and burden of persuasion – except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. (NY Educ. Law § 4404[1][c]).

A. Prong I

The IDEA (20 U.S.C. §§ 1400-1482) contemplates two specific purposes designed 1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and 2) to ensure that the rights of students with disabilities and parents of such students are protected. (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 (2009); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (See 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (See 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]). A free and appropriate public education can be said to be offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) “[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” (Walczak v. Fla. Union Free Sch. Dist.,^[142] F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court ruled that “[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 137

S. Ct. 988, 999 [2017]).

Although school districts must comply with the checklist of procedures for developing a student's IEP, “[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not” (R.E., 694 F.3d at 190-91), the Second Circuit explained that not all procedural errors render an IEP legally inadequate under the IDEA. (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an IHO may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

An IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203), but the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). Indeed, “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created” (Endrew F., 137 S. Ct. at 1001), and an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents,” is what is required. (Walczak, 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; and Walczak, 142 F.3d at 132.). An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), and outline annual goals specifically designed to address the Student’s needs resulting from his disability to make progress in the general education curriculum (34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]) through the use of appropriate special education services. (34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]). Although not every student can be expected to attend a regular education curriculum, the IEP “must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” (Endrew F., 137 S. Ct. at 1000).

Finally, A FAPE must provide “related services” tailored to meet the unique needs of a particular child. (20 U.S.C. § 1401[9]). Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S. Ct. 3034, 73 L. Ed. 2d 690 [1982]); Walczak, 142 F.3d at 122. “[R]elated services” include “transportation, and such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education.” (20 U.S.C. § 1401[26][A]; see Rowley, 458 U.S. at 188; see also P. v. W. Hartford Bd. of Educ., 885 F.3d 735, 741 [2d Cir. 2018]).

The Parent alleged that the District committed a number of procedural and substantive violations regarding Prong I of the analysis. In the instant matter, however, the District explicitly conceded that it failed to provide the Student with a FAPE at the Hearing. (See Hearing Tr., at 45). Accordingly, I hold that the District failed to meet its burden of proof as to Prong I of the Burlington/Carter standard.

B. Prong II

A private school placement must be “proper under the Act.” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370). This means that the Private School must offer an educational program that meets the student’s special education needs. (See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 [2d Cir. 2007]; and Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” (Gagliardo, 489 F.3d at 112). Additionally, “[s]ubject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’”(Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]).

Parents need not show that the placement provides every special service necessary to maximize the student’s potential. (Frank G., 459 F.3d at 364-65). Instead, they need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a student with a disability, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112 citing Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 C.F.R. § 300.39[a][1]; 8 NYCRR § 200.1[ww]; Hardison, 773 F.3d 386).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefits. Still, courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. When determining whether a unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether the placement is “reasonably calculated to enable the child to receive educational benefits.” (Frank G., 459 F.3d at 364; and see Gagliardo, 489 F.3d at 115).

In this case, the Private School meets the Frank G. standard and “provides educational instruction specially designed to meet the unique needs” of the Student that will enable him to make progress. First, the Private School provides the Student with small class sizes, which she needs and benefits from. Second, the Private School provides trained teachers who can support the Student. Third, the Private School individualizes its instruction for the Student by providing copious adaptations that the Student needs. Finally, the Student is making progress at the Private School. I will discuss each in turn.

First, the Private School is appropriate because of its smaller class sizes. Small class sizes can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement. (Frank G., 459 F.3d at 365 citing Knable v. Bexley City Sch. Dist., 238 F.3d 755, 768 [6th Cir. 2001]). Small class sizes at a unilateral placement “come[] within the IDEA definition of ‘special education,’ namely, ‘specially designed instruction . . . to meet the unique needs of a child.’” (Frank G., 459 F.3d at 365 (citing 20 U.S.C. § 1401[29]). The sizes of the Student’s classes varied by subject and, ostensibly, the Student’s needs. (Ex. J, at ¶ 21). In Language Arts, the Student was placed in a 6:1 classroom setting; in writing, a 12:2 setting; in Math, a 7:1 setting; in History, a 15:2 setting; in Science, a 15:2 setting, in Skills, a 13:3 setting, and in her Advisory classroom, a 12:2 setting. (Ex. J, at ¶ 21). Based on the Student’s progress reports and teacher feedback, the Head of the Middle School testified that the Student’s need for this level of service was evident. (Id.). Like the Student, “all the student” at the Private School struggle “with language-based learning challenges.” (Ex. J, at ¶ 41). Therefore, based on this educational program with the enumerated supports as evidenced in the record, I hold that these factors establish the appropriateness of the private school placement.

Second, the Private School is appropriate because it provides trained teachers to support the Student. The law in this circuit is that “a private placement need not provide certified special education teachers…for the disabled student,” but the Private School nevertheless ensures that its teachers have the training and specialization necessary to teach the Student based on her needs. (Frank G., 459 F.3d at 364). The school “provides extensive professional development opportunities” for its faculty and has “a comprehensive training program for new hires before they start and throughout their first year.” (Ex. J, at ¶ 11). The school’s teachers are “observed frequently by a supervisor and coached by academic coaches or supervisors across all the subjects that they teach.” (Ex. J, at ¶ 11). The Private School’s teachers “all have prior teaching experience,” “typically have a Master’s degree in education or special education,” and “most are also New York State certified in Special Education.” (Ex. J, at ¶ 12). The Student’s Language Arts teacher has a Master’s in special education and her Math teacher holds a Master’s degree in School Leadership. (Ex. J, at ¶¶ 22-24). Accordingly, I hold that the teachers have sufficient training to teach the Student based on her needs.

Third, the Private School is appropriate because it individualizes its instruction for the Student by providing copious adaptations that the Student needs. When a teacher at the unilateral placement adapts instruction (for example, working one-on-one with the student, creating a communications book, giving the student extra time to complete work, allowing the student to work in isolated areas of the classroom, adapting tests to allow the student to take them orally), these factors weigh in favor of the appropriateness of the parent’s unilateral placement. (Frank G., 459 F.3d at 365-66). In Language Arts, the Student required, and was provided,” a significant amount of 1:1 support and direct teacher intervention to ensure that she was taking in the material,” including “extensive scaffolding and breaking down the material into smaller chunks.” (Ex. J, at ¶ 28). For the 2022/23 school year, the Student’s writing class “utilized direct and implicit instruction.” In Math, the “size of the group was critical” in helping the Student stay engaged and attentive, and utilized a “multisensory approach, which focused on breaking down the language and concepts in math using manipulatives (clay models) to move from very concrete to more abstract and algorithmic approached” to the subject. (Ex. J, at ¶¶ 33-34). The Student’s social and emotional needs were met through the Advisory program – a curriculum developed to help Students build self-esteem, selfadvocacy, caring relationships between students, and good decision-making skills – and frequent checkins with the mental health team. (Ex. J, at ¶ 37). Because of these aspects of the program that are tailored to the student’s individual educational needs, I accordingly hold that this factor also weighs in favor of the placement’s appropriateness.

Finally, the Private School is appropriate because the Student is making progress. Significant educational progress can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement. (Frank G., 459 F.3d at 365 citing Knable, 238 F.3d at 768). While a student’s progress at the private placement is not by itself sufficient to determine whether a placement is appropriate, that progress is a relevant factor in assessing the appropriateness of the placement. (Weaver v. Millbrook Cent. Sch. Dist., 812 F. Supp. 2d 514, 523 [S.D.N.Y. 2011]). By the end of the 2022/23 school year, the Student was “able to independently write a simple paragraph” and has “successfully applied her writing skills to other areas.” (Ex. J, at ¶ 32). Throughout the school year, the Student also exhibited greater independence in solving multi-step problems. (Ex. J, at ¶ 33). Over the course of the year, the Student “made academic and social-emotional progress” at the Private School. (Ex. J, at ¶ 42). Accordingly, the Student’s uncontroverted progress suggests that the Private School is appropriate to meet the Student’s needs.

I hold that the weight of the evidence establishes that the Private School addressed Student’s individual special education needs, and that the instruction offered there was “reasonably calculated to enable the child to receive educational benefits.” (Frank G., 459 F.3d at 364). As a result of the above, I hold that Parent has satisfied her burden in proving that the Private School offered an educational program that met the Student’s needs under Prong II of the Burlington/Carter standard.

C. Prong III

Under the third and final prong of the Burlington/Carter test, courts consider “equitable factors” relevant to an order of tuition. (Gagliardo, 489 F.3d at 112). “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [Department] throughout the process to ensure their child receive[s] a FAPE.” (Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 [S.D.N.Y. Nov. 20, 2007]). Specifically, equitable considerations include the parents’ participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral

In this case, the Parent cooperated with the DOE. The Parent participated in the 5/4/2022 IEP meeting. (Ex. K, at ¶ 12; M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 254 [2d Cir. 2012] [holding that when a parent attends the IEP meeting, this is one fact among others that weighs in favor of the parent’s request for a tuition award under Prong III of the Burlington/Carter test]).

I find no issue with the reasonableness of the tuition amount. “Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable.” (Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16, 114 S. Ct. 361 [1993]; see also J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 [S.D.N.Y. 2011] [“[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”]). Here, Private School’s tuition for the 2022/23 school year was $70,700, inclusive of related services. (Ex. H). I find that this tuition is reasonable in light of the small class sizes, the highly trained teachers, and the highly specialized nature of the program.

Reimbursement, however, 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).

With respect to the ten days’ notice, the record is unequivocal that the Parent did not send the District notice of the unilateral placement until over a month after the Student had been placed. (Ex. B). Accordingly, it is within my discretion to deny reimbursement in whole or in part. That said, two recent SRO decisions have reduced the award of tuition in cases analogous to this (where the Parent failed to provide notice) by only 10%. (See Application of a Student with a Disability, Appeal No. 23-028; Application of a Student with a Disability, Appeal No. 23-056). I agree with this reduction in tuition for failure to provide a 10-day-notice, as it is my belief that anything more would be unduly harsh, given the totality of the circumstances here. Accordingly, the tuition award will be reduced by 10%, or $7,070. (Ex. B).

Additionally, there remains the matter of the religious aspect of Private School. As the record bears out that 15% of Private School instruction is religious in nature, I will reduce the award of tuition by this amount, or $10,605. (Ex. J, at ¶ 39).

After considering the record at hearing, I find that the equities support Parent’s claim for the cost of tuition and order the District to reimburse Student’s tuition for the 2022/23 school year in the amount of $53,025.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:

1. Within 35 days of the date of this Order, the DOE shall reimburse the Parent $53,025 for the cost of the Student’s tuition in the school year 2022/23. The DOE shall not require any documentation that is not already in the hearing record to issue payment to the Parent. Additionally, upon a showing of receipts, statements, or other similar documentation, the District shall reimburse the Parent for any transportation costs incurred for the 2022/23 school year.

SO ORDERED.

DATED: 11/13/2023

Paul DeSena

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

APPENDIX A – REDACTION IDENTIFICATION PAGE

Term Used In FOFD [REDACTED] Information

Student [REDACTED]

Parent/Guardian [REDACTED]

Parent Attorney/Representative [REDACTED]

District Attorney/Representative [REDACTED]

Private School [REDACTED]

District [REDACTED]

Head of the Middle School [REDACTED]

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Impartial Hearing Request 8/9/2023 4 pages

B. Ten Day Notice 2022/23 10/11/2023 3 pages

C. [REDACTED] Program Description school year 2022/23 4 pages

D. Enrollment Contract school year 2022/23 4 pages

E. Class Schedule school year 2022/23 1 page

F. Religious Instruction Calculation 1 school year 2022/23

G. Attendance Calculation school year 2022/23 1 page

H. Tuition Affidavit school year 2022/23 1 page

I. Progress Reports school year 41 pages

J. Affidavit of [REDACTED] 10/23/2023 13 pages

K. Affidavit of [REDACTED] 10/23/2023 4 pages

DOE EXHIBITS

1. N/A N/A N/A

Footnotes

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

[142] F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see also Grim, 346 F.3d at 379). School districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132) but are required to provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement.’” (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001) and designed to be provided in the least restrictive environment (hereinafter, “LRE”). (20 U.S.C. § 1412[a][5][A]; 34 CFR placement decision to the DOE. (See D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 [S.D.N.Y. 2011]).