Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 252718

Student’s Name: STUDENT

School District: SCHOOL DISTRICT

Impartial Hearing Officer: Michele Host

Date of Filing: August 18, 2023

Hearing Requested by: PARENT

Dates of Hearing: October 23, 2023

Time Sensitive: No

Record Close Date: October 25, 2023

Date of Decision: October 26, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 23, 2023:

For the School District:

[REDACTED] (“DOE Counsel”)

For the Student:

[REDACTED] (“Parents’ Counsel”)

[REDACTED] (“Father”)

INTRODUCTION AND PROCEDURAL HISTORY

This matter concerns the Student, a student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). The Student’s eligibility for special education supports and services is not in dispute.

This matter comes before me on the Parents’ due process complaint, filed on or about August 18, 2023, concerning the 2023-2024 school year. In the Parents’ due process complaint, the Parents allege that the DOE failed to provide the Student with a free and appropriate public education (“FAPE”) for the 2023-2024 school year by designing an Individualized Educational Program (“IEP”) for the Student that was inappropriate for the Student and was not reasonably calculated to confer educational benefit on the Student. (P-A, p. 2) The Parents also allege that the public school that the DOE recommended as the Student’s 2023-2024 placement (“Proposed Placement”) could not possibly meet the Student’s needs, given that the Proposed Placement was located on the third floor of a school building without an elevator, and the Student is non-ambulatory without a walker. (Id.) As relief, the Parents seek reimbursement/direct funding for the private school (“Private School”) where the Student has been unilaterally placed.

I was appointed to this matter on August 21, 2023, and held a pre-hearing conference on September 22, 2023, during which I scheduled an impartial hearing for October 23, 2023.

The impartial hearing was held on October 23, 2023. The DOE entered no exhibits into evidence and called no witnesses. (Tr. 17) DOE Counsel also stated that the DOE conceded that it failed to provide the Student with a FAPE under Prong I of the Burlington-Carter test. (Tr. 17) The Parents provided proposed exhibits A through N; I entered the Parents’ exhibits A through I and K through N into evidence without objection.^[1] I marked the Parents’ proposed exhibit J for identification only. (Tr. 18-20)

The DOE waived its opening statement, and Parents’ Counsel made an opening statement. (Tr. 20-23) The DOE rested, and Parents’ Counsel called the Father to testify to the truth of the Father’s affidavit, which had been marked for identification as Parents’ exhibit J. (Tr. 23-24) I entered Parents’ exhibit J into evidence, and the Parents rested. (Tr. 25-26) The DOE waived its closing statement and Parents’ Counsel made a closing statement. (Tr. 26-27)

The record in this case closed on October 25, 2023. A list of the documentary evidence in this proceeding is appended to this decision.

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 Art 89 § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. Part 200.

FINDINGS OF FACT

After considering all the evidence, as well as the closing argument of the Parents, my findings of fact are as follows:

The Student is [REDACTED] years old and is classified by the DOE as a Student with Multiple Disabilities. (P-K, p. 1) The Student is diagnosed with PURA syndrome, which is a neurodevelopmental disorder characterized by mild to moderate developmental delay, moderate to severe intellectual disabilities, seizures, feeding difficulties, low muscle tone, and breathing problems. (P-K, pp. 9, 15) The Student experiences delays in cognitive skills, motor skills, communication skills, and self-care skills, and requires full adult support to complete tasks of daily living. (P-K, pp. 4, 9) The Student has experienced seizures in the past, but is currently successfully managing them with medication. The Student wears a custom-made compression suit and requires a walker to take steps, with supervision. (P-K, p. 9)

On June 2, 2023, a Committee on Special Education (“CSE”) convened an IEP meeting for the Student. (P-K) The IEP notes that the Student was enrolled at the Private School at the time of the IEP meeting and had been attending the Private School since September of 2022. The IEP then references reports provided by the Private School regarding the Student’s present levels of performance.

The IEP states that the Student presents as functionally nonverbal and communicates using vocalizations, gestures, and an augmented and alternative communication (AAC) device. (Id.) The IEP discusses the Student’s progress in reading, writing, math, and daily living skills, noting that while the Student had demonstrated progress in the Student’s academic work, the Student still showed deficits in all areas. Similarly, although the Student was working on daily living skills, including participating in the morning unpacking routine and self-feeding, the Student “requires full adult support to complete daily living tasks such as toileting, handwashing, and feeding. [The Student] wears diapers during the day.” (P-K, p. 4) The IEP contains detailed progress reports from the Student’s related service providers at the Private School, which note the Student’s significant delays in receptive language, expressive language, sensory processing, self-care, and gross motor skills. (P-K, pp. 7-14)

The IEP recommended a placement for the Student in a 6:1+1 special class in a DOE specialized school. (P-K, 27-28) The IEP also recommended that the Student receive adapted physical education three times a week, occupational therapy (“OT”) four times per week on an individual basis for 30 minutes; physical therapy (“PT”) five times per week on an individual basis for 30 minutes; and speech-language therapy (“SLT”) four times per week on an individual basis. (P-K, pp. 27-33) In addition, the IEP recommended that the Student be supported all day by an individual paraprofessional, and that the Parents receive parent counseling and training monthly for 60 minutes. (P-K, p. 28) The Father attended the IEP meeting and disagreed with the recommended program. (P-J, ¶ 10-11) The Father testified that “[t]he district’s team did not actually consider any other programs for [the Student]. It seemed like the special class with a 6:1+1 staffing ratio and 1:1 paraprofessional was predetermined.” (P-J, ¶ 10)

On June 20, 2023, the Parents sent the DOE a letter stating that they intended to place the Student at the Private School unless the DOE cured the procedural and substantive errors contained in the IEP and offered the Student an appropriate program. (P-B)

On June 23, 2023, the DOE recommended the Placement Program for the Student. (P-J, ¶ 13; M) The Father testified, “[t]his school is not appropriate for [the Student]. The placement is not barrier free, which [the Student] needs as [the Student] is non-ambulatory. This placement would be highly unsafe for [the Student].” (P-J, ¶ 14) On July 7, 2023, the Mother sent the DOE an email message stating: The recommended school is not tenable for our child, [the Student], as it cannot accommodate [the Student’s] needs. [The Student] is non-ambulatory, and the school does not have an elevator. This would significantly limit [the Student] and it is unsafe. Please provide an alternative program/placement for the Student. (P-M, p. 6)

A DOE employee responded by email and stated that some of the programs in the school building are on the ground floor and classroom access is provided via ramp, but after the Mother and Father both sent email messages asking questions about the location of the Proposed Program, as well as the locations of the lunchroom and the gym, the DOE forwarded their messages to the principal of the Proposed Program. The principal wrote, “We contacted the family. They say that [the Student] is non-ambulatory and we do not have an elevator.” (P-M)

The Student enrolled at the Private School for the 2023-2024 school year. (P-D; F; J, ¶¶ 15-24) The Private School’s mission is “to provide a comprehensive, developmentally appropriate program which focuses on the whole student for children with global developmental delays, autism spectrum disorder, speech and language delays, and neurodevelopmental disabilities.” (P-I, ¶ 3) The Private School’s curriculum is individualized based on each student’s needs and abilities. To support the students’ behavioral needs, the Private School uses Applied Behavioral Analysis, TEACCH, and Floortime models as appropriate. (P-I, ¶ 7) The Private School offers related services and enrichment programs, including SLT, OT, PT, feeding therapy, counseling, vision services, hearing services, paraprofessional services, AAC services, art therapy, music therapy, cooking, social skills, and community exploration. (P-I, ¶ 8) There are 139 students enrolled in the Private School for the 2023-2024 school year. (P-I, ¶ 9) All of the teachers at the Private School have their bachelor’s degrees and are New York State-certified in special education. (Id. at ¶ 11)

The Student attends the Private School on a 12-month basis, where the Student is in a 6:1:1 special class with a 1:1 paraprofessional. (P-I, ¶ 21) The Student receives SLT four times a week for 30 minutes; AAC services once a week for 30 minutes; OT four times a week for 30 minutes; and PT ten times a week for 30 minutes. (P-I, ¶¶ 21, 43-45)

The Parents provided a copy of their enrollment contract with the Private School, which is dated May 12, 2023. (P-D) The enrollment agreement states that the Student’s total education costs for the 2023-2024 school year are $156,800, including the base tuition of $117,600.00 as well as 1:1 paraprofessional services at the rate of $39,200.00. (P-D, p. 7) On May 12, 2023, the Parents paid the Private School $9,000.00. (P-E)

The Parents and the Private School amended the enrollment contract on October 10, 2023, to reflect additional services provided by the Private School for the Student—namely, Rifton Chairs, in addition to the previously noted 1:1 paraprofessional services. (P-N, p. 1) As a result of the amendment, the Student’s 2023-2024 tuition at the Private School increased to $158,849.00 (Id.)

CONCLUSIONS OF LAW AND ANALYSIS

The IDEA establishes a “substantive right to a ‘free appropriate public education’” for children with disabilities. Endrew F. v. Douglas Co. School Dist, 137 S. Ct. 988, 993 (2017) (quoting Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982)). 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. See 20 U.S.C. § 1415(f)(3)(E)(i). Under the IDEA and New York law, where there is a procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE. See 20 U.S.C. § 1415 (f)(3)(E)(ii); 8 N.Y.C.R.R. § 200.5(j)(4)(ii).

A FAPE is offered to a student when: (a) the DOE 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; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). “Not every procedural error will render an IEP legally inadequate.” M.H. v. New York City Dep’t of Educ., 685 F. 3d 217, 245 (2d Cir. 2012) (citation omitted). If a procedural violation is 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 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).

In general, an impartial hearing officer'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. School districts are not required to “maximize” the potential of students with disabilities, but 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 v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003). 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.

Throughout the hearing process, a school district bears the burden to show that it (1) complied with the IDEA’s procedural requirements; and (2) designed an IEP reasonably calculated to confer educational benefit on the student. C.B. ex rel W.B. v. N.Y. City Dep’t of Educ., 2005 U.S. Dist. LEXIS 15215, *37 (E.D.N.Y. June 10, 2005); 20 U.S.C. 1415(i)(2)(C)(iii); see also Walczak, 142 F.3d 119. However, “a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” N.Y. Educ. § 4404(1)(c).

Under the three-prong test established by the Supreme Court in Sch. Comm. of Burlington, Mass, v. Dep’t of Educ. of Mass, 471 U.S. 359 (1985) and Florence County. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), parents who unilaterally place their children in private school are entitled to reimbursement from the school district if the services offered by the school district were inadequate or inappropriate, the services selected by the parent(s) were appropriate, and equitable considerations support the parent’s claim. See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert. denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 U.S. LEXIS 11520 (Oct. 15, 2007). The first prong of the Burlington-Carter test encompasses whether the student’s IEP provided a FAPE. Brock v. Dutton, 2015 U.S. Dist. LEXIS 44254, *14 (S.D.N.Y. March 31, 2015).

The Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007) (quoting Frank G. v. Bd. of Educ., 459 F.3d at 364-65). The private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.” Frank G. v. Bd. of Educ., 459 F.3d at 364.

The final prong of the Burlington-Carter test involves the balancing of the equities. 20 U.S.C. § 1412(a)(10)(C)(iii). Reimbursement may be limited or denied if the parents failed to act reasonably, did not cooperate with the DOE’s attempts to evaluate the student, or failed to provide proper notice of the parents’ rejection of the Student’s placement. See 20 U.S.C. § 1412(a)(10)(C)(iii). When considering whether the parents have shown that the equities weigh in the parents’ favor, it is important to consider “whether the [parents] cooperated with the district in its efforts to meet its obligations under the IDEA.” C.L v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014).

Burlington-Carter Test Prong I: FAPE

As to Prong I of the Burlington-Carter test, the DOE failed to meet its burden at hearing. The Supreme Court has found a reviewing court may expect school district staff “to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S.Ct. 988, 1002 (2017). In this case, the DOE entered no evidence into the record, called no witnesses, and conceded that it failed to provide the Student with a FAPE. (Tr. 17) Therefore, I cannot find that the DOE offered the Student a FAPE for the 2023-2024 school year.

Moreover, the weight of the evidence in this matter supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer the Student a FAPE for the 2023-2024 school year. For example, the school district fails under Prong I if it assigns the student to a school that cannot implement the student’s IEP. T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 420 (2d Cir. 2009) (stating that school districts do not have ‘carte blanche’ to assign a child to a school that cannot satisfy the IEP’s requirements). In this matter, the DOE assigned the Student to a school located in a building without an elevator, when the Student is unable to walk without a walker—much less climb stairs without significant assistance. (P-M) As a result, there is no way the Proposed Placement could satisfy the IEP’s requirements, and the DOE failed to provide the Student with a FAPE.

Additionally, the DOE did not object to or contest the evidentiary material submitted by the Parents in support of their claims, and it offered no rebuttal to the testimony provided by the Parents’ witnesses. Consequently, the Parents are entitled to a presumption as to the truth of the asserted facts underlying their claims that are contained in the documentary evidence and testimony to the extent those facts are credible and are not contradicted by the hearing record.

Burlington-Carter Test Prong II: The Appropriateness of the Parents’ Unilateral Placement

A unilateral private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. The relevant standard to apply is whether “the unilateral private placement . . . provides educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo, 489 F.3d at 115 (quotations omitted). No single factor is dispositive in this analysis. Id. The private placement does not necessarily need to provide certified special education teachers or every special service that could assist in maximizing the Student’s potential. Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 2020 U.S. Dist. LEXIS 16007 (S.D.N.Y. 2020), aff’d 2020 U.S. App. LEXIS 39739 (2d Cir. 2020) (citation omitted). Moreover, parental placements are not subject to the same mainstreaming requirements as a school district placement. Frank G. v. Bd. of Educ., 459 F. 3d at 364.

In this case, the Parents submitted progress reports for the Student from the Private School and the Student’s 2023-2024 schedule at the Private School, as well as affidavits from the IEP Coordinator and the Father. (P-F; G; H; I; J) The first progress report submitted by the Parents is from the 2022-2023 school year, and discusses the Student’s progress in reading, writing, math, daily living skills, and social-emotional connections. (P-G, pp. 1-6) The progress report also contains reports from the Student’s related skills providers and information about the Student’s participation in music therapy, art therapy, yoga/movement, and physical fitness. (P-G, 17-18)

The Parents also provided a progress report for the Student’s summer enrollment at the Private School (July 2023-August 2023). (P-H) The summer progress report focused on the Student’s participation in creative arts therapy groups, with brief discussions of the Student’s work on academics and related services—noting that during the summer session, the Student’s program was focused on maintenance of targeted skills. The Private School also used the summer session to transition the Student to a new AAC device because the Student had acquired the ability to direct select using the Student’s fingers. (P-H, p. 9) Over the summer, the Student’s device was “individualized to suit [the Student’s] communication needs by adding new staff, students, and contextually-relevant fringe vocabulary words (e.g., preferred food items).” (P-H, p. 9)

The IEP Coordinator has a bachelor’s degree in elementary education and a master’s degree in intellectual disabilities and autism. The IEP Coordinator also has a professional licensure for students with disabilities grades 1-6 in the state of New York. (P-I, ¶ 1) As the IEP Coordinator, the IEP Coordinator “spends time observing all students and meeting with their educational teams, gaining knowledge about their current progress and how they can be best supported within their classroom or therapeutic setting.” (P-I, ¶ 1) The IEP Coordinator also appears on behalf of the Private School at impartial hearings. (P-I, ¶ 1)

The IEP Coordinator testified in detail regarding the Private School, the Student, and the Student’s educational program at the Private School. (P-I) The IEP Coordinator testified that the Student is “functionally nonverbal,” can walk for short distances with two hands held and uses a walker to walk around the school. (P-I, ¶ 18) The Student wears diapers during the school day and requires full adult support for toileting, handwashing, and feeding. (P-I, ¶ 28) The IEP Coordinator testified that the Private School’s building was architecturally designed for students with special needs, which benefits the Student. In addition, the Student “is easily overwhelmed in a large or chaotic environment,” and needs a small, supportive environment to develop independence and make progress. (P-I, ¶ 25) The IEP Coordinator testified that the Student is working on interactions with peers and is now engaging in at least two minutes of social interaction when provided with adult support. The Student has also increased the Student’s use of an AAC device, although the Student is not yet using it to communicate with peers. The IEP Coordinator testified that the Student’s classroom teacher communicates with the Parents daily. (P-I, ¶ 46)

Ultimately, the IEP Coordinator testified that the Student’s placement at the Private School is appropriate. The IEP Coordinator testified that the Private School’s positive interventions and structured environment have allowed the Student to make progress towards the Student’s academic, social-emotional, behavioral, gross and fine motor goals. At the Private School, the Student has made “steady progress” in terms of regulation, improved academically, built peer relationships, and decreased problem behaviors. (P-I, ¶¶ 47-49)

The Father testified that the Student “continues to benefit from the individualized supports provided by [the Private School] to address [the Student’s] limited attention span, activities of daily living, socialization, independence, problem solving, frustration tolerance, and functional communication.” (P-J, ¶ 18) The Father also that the AAC system the Student uses at the Private School ensures that the Student “has access to and is using the most appropriate communication modality,” and is helping the Student to expand the Student’s expressive communication skills. The Father noted that the Private School helps the Parents be consistent with the AAC device when the Student is at home. (Id.) The Father testified that the Student has shown progress “because of the specialized environment and instruction that [the Student] receives at [the Private School]—a place that really understands who [the Student] is as a person and a learner and actively engages us (his parents) and caregivers in the process.” (P-J, ¶ 24)

As noted earlier, the DOE did not object to the Parents’ evidence being entered into the record, including the sworn affidavits of the Parents’ witnesses. There is nothing in the record that would undermine or controvert the testimony given by affidavit by either witness. I therefore credit both witnesses’ testimony in full.

I find that the Parents have met their burden to prove that the private program offers an educational program that meets the Student’s needs under Prong II of the Burlington/Carter standard. The weight of the evidence establishes that the Student’s individual special education needs are being addressed by the Private School and that the instruction offered is “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364.

Burlington-Carter Test Prong III: Equitable Factors

Equitable factors are relevant to fashioning relief under the IDEA. Burlington, 471 U.S. at 374; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 (2d Cir., 2014); M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000) (citations omitted); see also 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”). Reimbursement of private school tuition may be reduced or denied when parents fail to challenge 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 C.F.R. § 300.148(d); see S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 U.S. Dist. LEXIS 11354 (S.D.N.Y. Feb. 4, 2008); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 (S.D.N.Y. 2005).

The IDEA allows that 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 removing 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 [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 C.F.R. § 300.148(d)(1). This statutory requirement “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).

In this case, the record does not establish that the Parents “acted with the requisite level of unreasonableness or misconduct that reimbursement should be denied on equitable grounds.” Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ., 550 F. Supp 2d 420, 437 (S.D.N.Y. 2008). There is nothing in the hearing record to suggest, let alone demonstrate, that the Parents interfered in any manner with the CSE’s evaluation of the Student or prevented it from providing the Student with a FAPE for the 2023-2024 school year. Furthermore, the DOE has raised no argument that the equities would not weigh in favor of the Parents. The record supports a finding that the Parents cooperated fully with the DOE and timely sent the requisite ten-day notice to the DOE in advance of the commencement of the 2023-2024 school year.

In addition, the record clearly establishes that the Parents incurred an obligation to pay the Private School the aggregate tuition sum of $158,849.00, of which the Parents have paid $9,000. (P-D; E; N) Direct tuition funding is relief encompassed by the equitable remedial powers inherent in the IDEA. See Cohen v. N.Y. City Dep’t of Educ., 2023 U.S. Dist. LEXIS 171815, at *13-16 (S.D.N.Y. Sept. 26, 2023); See, e.g., Mr. and Mrs. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011). Given my finding that the Private School is the appropriate placement for the Student, the Parents are entitled to an award reimbursing them in the amount of $9,000, and awarding direct tuition funding for the outstanding tuition balance due to the Private School, to be paid directly to the Private School. See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453-54 (2d Cir. 2013) (“direct payment fits comfortably within the Burlington-Carter framework: like reimbursement, direct payment to the private school that provided the required educational program ‘merely requires [the school district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP’”) (quoting Burlington, 471 U.S. at 370-71).

While the amount of tuition at the Private School is not insignificant, I do not find that the tuition costs are excessive or unreasonable, given the Private School’s educational program for the Student. Carter, 510 U.S. 7, 15-16. After considering the entire record presented at hearing, I find that the equities support the Parents’ claim for direct funding.

OTHER RELIEF SOUGHT

In addition to reimbursement and prospective tuition funding for the Student’s attendance at the Private School, the Parents seek additional relief that I will discuss below.

Attorneys’ Fees

The Parents also requested attorneys’ fees and expenses in the Parents’ due process complaint. (P-A, p. 4) The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction. 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006). Only a court can determine if a party is entitled to attorneys’ fees and I would be exceeding the scope of my authority by determining that the Parents are the prevailing party entitled to costs. Therefore, to the extent that the Parents are seeking reimbursement and/or payment of attorneys’ fees and costs, the Parents’ request is denied.

I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parents’ remaining claims not discussed herein are dismissed with prejudice.

ORDER

Based above the above findings of fact, it is hereby:

1. ORDERED, that the DOE shall reimburse the Parents in the amount of $9,000.00 within 35 days of this order; it is further

2. ORDERED, that the DOE shall directly fund the remaining tuition owed for the Student’s 2023-2024 school year at the Private School by paying the Private School $149,849.00, within 35 days of this order.

SO ORDERED.

DATED: October 26, 2023

Michele Host (signed electronically)

Impartial Hearing Officer

Michele Host

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 – ADMITTED EXHIBITS

DISTRICT’S EVIDENCE

Exhibit Title Date Pages

NONE

PARENTS’ EVIDENCE

Exhibit Title Date Pages

A Impartial Hearing Request 8/18/23 4

B Ten-Day Notice 6/20/23 3

C Ten-Day Notice Response 7/6/23 1

D Enrollment Contract 4/30/23 7

E Payment Affidavit 8/24/23 1

F Daily Schedule 2023-2024 2

G Progress Report 2/2023-6-2023 20

H Progress Report 8/1/23 16

I Affidavit in Lieu of Direct Testimony – IEP and Hearing Coordinator 10/5/23 9

J Statement in Lieu of Direct Testimony – Father Undated 4

K IEP 6/2/23 36

L Prior Written Notice 6/22/23 8

M Email exchange Multiple Dates 7

N Contract Addendum 10/10/23 3

Footnotes

[1] The Parents’ exhibits are cited as “P” followed by a letter, and the transcript is cited by “Tr.” followed by a page number.