Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 254274

Student’s Name: STUDENT

School District: SCHOOL DISTRICT

Impartial Hearing Officer: Michele Host

Date of Filing: September 5, 2023

Hearing Requested by: PARENT

Time Sensitive: No

Dates of Hearing: November 27, 2023

Record Close Date: December 14, 2023

Date of Decision: December 15, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 27, 2023:

For the Student:

[REDACTED] (Parent’s Counsel)

[REDACTED] (Director of Early Childhood)

For the District:

[REDACTED] (DOE Counsel)

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 September 5, 2023, concerning the summer of 2023 and 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 summer of 2023 and the 2023-2024 school year in multiple respects, including by failing to provide the Student with an educational placement for the summer of 2023; creating an inappropriate IEP for the Student; failing to give proper weight to evaluations provided by the Parents; recommending an inappropriate classroom placement for the Student; and by failing to recommend a twelve-month program for the Student. (P-A, pp. 3-4) As relief, the Parents seek tuition reimbursement for the tuition they paid for the Student to attend a private school (“Private School”) during the summer of 2023 and the 2023-2024 school year.

I was appointed to this matter on September 7, 2023, and on September 20, 2023, the DOE issued a pendency implementation form in this matter. I held a pre-hearing conference on October 12, 2023, and held a status conference on October 24, 2023, during which I scheduled an impartial hearing for November 27, 2023.

The impartial hearing took place on November 27, 2023. The DOE entered no evidence into the record and called no witnesses. (Tr. 21) I entered the Parents’ exhibits A through R into evidence without objection.^[1] (Tr. 22-24) The DOE did not present an opening statement, and Parents’ Counsel made an opening statement. (Tr. 25-30) The DOE rested, and the DOE then cross-examined the Director of Early Childhood, whose direct testimony is in the record as Parents’ Exhibit R. (Tr. 30-43) Parents’ Counsel asked several questions on redirect, and the Parents rested. (Tr. 44-46) The DOE waived its closing argument, and Parents’ Counsel asked to submit her closing argument via email. (Tr. 46-47) The DOE did not object, I granted Parents’ Counsel’s request, and Parents’ Counsel submitted her closing argument on December 5, 2023. (Tr. 47-48; IHO-I)

The record in this case closed on December 14, 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 has been classified by the DOE as a Student with a Learning Disability. (P-B, p. 1) In an evaluation dated June 22, 2022, the Student’s developmental pediatrician wrote that the Student has been diagnosed with a genetic condition known as ODLURO syndrome, in which a gene variant causes a “variable neurodevelopmental disorder, with features including hypotonia, ADHD, autism, mild dysmorphic features and epilepsy.” (P-F, p. 2) The developmental pediatrician wrote that the Student’s “greatest challenge is [the Student’s] expressive language and [the Student] has also been diagnosed with childhood apraxia of speech.” (P-F, p. 1) The developmental pediatrician observed that the Student has a short attention span and found that, overall, the Student presented as a child whose developmental age was “more commensurate with a 2 ½ year old rather than a 3 ½ year old.” (P-F, p. 3)

The evaluation contains detailed recommendations for the Student, including a specialized school setting with a “small class size, high teacher to student ratio and therapists on site.” The evaluation recommends a “preschool setting with no more than 10 to 11 students and at least 2 educational teachers and an assistant in the class who can provide an individualized teaching style with complimentary therapeutic services.” (P-F, p. 3)

The Parents executed a contract with the Private School for the 2023-2024 school year on January 13, 2023. (P-K) Pursuant to the contract, the Parents agreed to pay $79,895.00 for the Student’s 10-month 2023-2024 school year. (Id.) The Mother testified that the Parents signed the contract to secure the Student a spot at the Private School for the 2023-2024 academic year, but the Parents “knew that we had until September 1 to be released from the contract and to receive a refund of our otherwise nonrefundable deposit if we chose to enroll [the Student] in a public school placement.” (P-Q, ¶ 25)

A Committee on Special Education (“CSE”) convened to develop an IEP for the Student on April 24, 2023. (P-B) The IEP references the developmental pediatrician’s evaluation, and includes many of the Student’s scores on assessments from the evaluation, including the fact that the Student received a score of 80 (9th percentile) on the Developmental Assessment of Young Children Second Edition. The IEP does not, however, reference the developmental pediatrician’s recommendations for the Student’s educational program and placement. Instead, the IEP recommends that the Student be placed in a DOE non-specialized school, in an integrated co-teaching (“ICT”) classroom for ELA, Math, Social Studies, and Science, with occupational therapy (“OT”) twice a week in a group of 2 for 30 minutes; physical therapy (“PT”) twice a week in a group of 2 for 30 minutes; speech-language therapy (“SLT”) twice a week for 30 minutes, individually, in a separate location, and once a week, for 30 minutes, individually, in a general education classroom. (P-B, pp. 16, 20) The IEP recommends a 10-month program, although the DOE previously issued a preschool IEP for the Student recommending that the Student receive services in July and August of 2023. (P-C)

On May 11, 2023, the Parents signed a registration form for the Student to participate in the Private School’s 2023 summer program between June 20 and July 28. (P-L) The cost of the summer program was $5,500.00. (P-O)

On June 7, 2023, the Parents, through counsel, sent a letter to the DOE stating that the Student would be enrolling in the Private School’s summer session. (P-M) The Parents wrote that Student remained eligible for preschool services under the Student’s preschool IEP, and the Parents had previously expressed disagreement with the Student’s preschool IEP dated August 11, 2022. (P-M; C) The June 7 letter also acknowledged that the DOE held an IEP meeting for the Student on April 24, 2023, and outlined the Parents’ concerns with the IEP, noting that the Parents had not yet received a school placement. (P-M, p. 1)

On June 15, 2023, the DOE issued a prior written notice for the Student that included a proposed public school placement for the 10-month 2023-2024 school year. (P-D) The Mother visited the proposed public school placement and observed the kindergarten ICT classroom. The Mother spoke with the special education teacher in the ICT class as well as the speech and language therapist, and learned that there “could be 25 students in the classroom and when the class works in small groups, there are 10-12 students in the group.” (P-Q, ¶ 19) The Mother also observed that the students in the class were advanced socially and academically compared to the Student. (Id., ¶ 20)

On July 11, 2023, the Student’s developmental pediatrician re-evaluated the Student. (PN, p. 3) The developmental pediatrician considered the Student’s most recent IEP in the re-evaluation. (Id.) The developmental pediatrician wrote that the Student “enjoys school” but continued to be delayed in expressive language and had trouble memorizing and retaining prereadiness skills such as letters and numbers. (P-N, p. 3) Using several different assessment tools, the developmental pediatrician found that the Student showed at least average cognitive potential. However, the Student could only identify a few letters of the alphabet and could not give letter sounds. The developmental pediatrician wrote that the Student’s grade equivalency was “below pre-K,” and because the Student is young for the Student’s year, it would be appropriate for the Student to repeat pre-K. (P-N, p. 6)

The developmental pediatrician discussed some of the literacy and math goals on the Student’s IEP, and found that they were unrealistic. (P-N, pp. 5-6) The developmental pediatrician also wrote that an ICT class would not be appropriate for the Student because of the Student’s “high levels of distractibility and low levels of mental stamina and persistence.” (P-N, p. 5) The developmental pediatrician reiterated her earlier recommendation that the Student be educated in a small class in a specialized setting, and also wrote that the Student should be provided with a 12-month program of services. (P-N, p. 6)

On July 31, 2023, the Parents sent the DOE another letter, through counsel. (P-N) The letter forwarded the developmental pediatrician’s re-evaluation and delineated the Parents’ concerns with the Student’s April 2023 IEP and the proposed public school placement. (P-N, p. 1) The Parents stated that because of the problems with the Student’s IEP and their concerns with the proposed public school placement, the Parents would place the Student at the Private School for the 2023-2024 school year. (P-N, p. 2)

The Private School is an independent pre-kindergarten, elementary and middle school setting for bright students with learning differences. (P-R, 4; H) The Private School’s Early Childhood Program has three classrooms, each with a lead teacher and an assistant teacher or a co-teacher. (P-R, ¶ 8) The Student is a preschool student in the Early Childhood Program. (Id., ¶¶ 7-8) For the 2023-2024 school year, the Student is enrolled in a classroom with ten students in total who are grouped together based on academic needs and learning styles. (P-R, ¶ 11) The Student’s head teacher has an advanced certificate in special education and is certified in general education. The assistant teacher has a master’s degree in early childhood bilingual and special education. (P-R, ¶ 13) The Student’s speech-language therapist pushes into classroom activities and the Student is pulled out for two individual sessions of SLT per week. (P-R, ¶¶ 14, 23, 34) The Student also receives two individual OT sessions per week, and the Student’s occupational therapist pushes into the classroom during all academic, social, and gross motor opportunities. (P-R, ¶ 25)

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

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 called no witnesses in support of its case, entered no documents into the record, and made no argument explaining its position. Therefore, I cannot find that the DOE offered the Student a FAPE for the summer of 2023 and the 2023-2024 school year. ^[2] 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, in addition to the reports from the developmental pediatrician discussed above, the Parents submitted a November 10, 2021, speech and language consultation, a program description from the Private School, the Student’s schedule at the Private School, and a mid-year report from the Student’s prior school year at the Private School. (P-E; G; H; I; J) The Parents also submitted affidavits from the Director of Early Childhood and the Mother. (P-Q; R)

Although the mid-year report provided by the Parent is dated January 30, 2023, it does show the type of individualized program the Private School prepares for its students, generally, and also shows that the Student made progress through the Private School’s educational program. (P-G)

The Director of Early Childhood testified in detail about the Private School, its educational program for the Student, and the Student’s educational progress. (P-R) The Director of Early Childhood has an undergraduate degree in child and family studies and a master’s degree in early childhood special education, as well as other educational credentials. The Director of Early Childhood is dual certified in New Jersey special education and general education, and is certified in New York as an early childhood special educator. (P-R, ¶ 2) The Director of Early Childhood testified that she sees the Student multiple each times each day in a variety of settings. (P-R, ¶ 12) The Director of Early Childhood testified that because of the Student’s decreased receptive skills and reduced intelligibility of speech, the Private School uses sentence starters and leading questions with the Student, in addition to “repetition of content paired with kinesthetic and visual lesson components.” (P-R, ¶ 22) Because the Student has a hard time sustaining attention, the Student requires frequent check-ins, as well as one-on-one attention. (P-R, ¶ 24) To assist the Student in strengthening the Student’s academic skills, the Private School uses explicit, reiterative, interactive, and multisensory instruction. (P-R, ¶ 26) The Director of Early Childhood testified that the Student “benefits from kinesthetic cues (i.e., Sounds In Motion) to support retention and recall.” (P-R, ¶ 27) The Director of Early Childhood also testified about various accommodations that the Private School provides the Student to help the Student maintain attention, including a calm environment, environmental support, and social supports. (P-R, ¶ 30)

The Director of Early Childhood testified that since the 10-month academic year began in September 2023, the Student has made progress in “perseverance, persistence and resilience with challenging moments, increased advocacy, improved responsiveness to redirection for attention, increased awareness of routine activities and transitions, improved phonemic and phonological awareness skills, and increased facility with concepts used during math.” (P-R, ¶ 37)

The Director of Early Childhood also testified about the importance of the Student’s participation in the Private School’s summer program. (P-R, ¶ 38) The Director of Early Childhood testified that “without summer school, [the Student] is likely to experience regression following extended absences. Without summer school, [the Student] is likely to experience regression in the sense that [the Student] would likely need extended time to reacclimate to the school and classroom environment, and foundational skills would be less available.” (P-R, ¶ 38) The Director of Early Childhood testified that while the summer program is designed to support the maintenance of skills learned during the 10-month school year, the Student did improve in the Student’s “understanding and use of language, ability to advocate for [the Student’s] needs, independence, confidence, and perseverance.” (P-R, ¶ 38)

The Parent testified in detail about the progress the Student has made at the Private School during the 2023-2024 school year. The Parent testified that the Student is building preliteracy and numeracy skills, and “has learned to recite the complete ABC song and count to ten, neither of which [the Student] was able to do last year.” (P-Q, ¶ 26) The Student can also recognize more letters of the alphabet. (Id.)

As noted earlier, the DOE did not object to the Parents’ evidence being entered into the record, including the sworn affidavits of the Parent and the Director of Early Childhood. There is nothing in the record that would undermine or controvert the testimony given 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 School offers an educational program that meets the Student’s needs under Prong Two of the Burlington/Carter standard. The Director of Early Childhood testified at length regarding the ways in which the Private School individualizes its instructional methods to help the Student learn. (P-R) The Private School’s use of scaffolding and supports with the Student, such as sentence starters, frequent check-ins, and kinesthetic cues, show that the Private School has designed an educational program that meets the Student’s unique educational 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 parents’ unilateral placement. Frank G., 459 F.3d at 365-66. Ultimately 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, attended the Student’s IEP meeting, visited the recommended public school placement, and timely sent the requisite ten-day notice to the DOE in advance of the commencement of the Private School’s 2023 summer program and 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 $79,895.00 for the 10-month 2023-2024 school year, as well as $5,550.00 for the 2023 summer session. (P-K; L; O) Given my finding that the Private School is the appropriate placement for the Student, and that the Student should have received a 12-month placement, the Student is entitled to an award for reimbursement for the Student’s attendance at the Private School for the 2023 summer session and the 10-month 2023-2024 school year, to be paid directly to the Parents. See Burlington, 471 U.S. at 370-71.

While the amount of 2023-2024 and summer program 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 tuition reimbursement.

OTHER RELIEF SOUGHT

In addition to tuition reimbursement for the Student’s attendance at the Private School during the summer of 2023 and the 2023-2024 school year, the Parents seek additional relief that I will discuss below. Attorneys’ Fees

The Parents also requested attorneys’ fees and expenses in the Parent’s due process complaint. (P-A, p. 7) 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 for the cost of the Student’s tuition at the Private School’s 2023 summer program, in the amount of $5,500.00, minus any amount already paid via pendency, within 35 days of this order; it is further

2. ORDERED, that the DOE shall reimburse the Parents for the Student’s 2023-2024 tuition at the Private School, in the amount of $79,895.00, minus any amount already paid via pendency, within 35 days of this order.

SO ORDERED.

DATED: December 15, 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

None

A. PARENTS’ EVIDENCE Description Date Pages Impartial Hearing Request September 5 2023 7 pages

B. IEP April 24, 2023 23 pages

C. Preschool IEP August 26 2022 24 pages

D. Prior Written Notice (Notice of Recommendation) June 15, 2023 4 pages

E. Speech and Language Consultation November 10 2021 13 pages

F. Report from Developmental Pediatrician June 22, 2022 4 pages

G. Private School Mid-Year Report (Including Email January 30 Receipt) 2023 10 pages

H. Private School Program Description School Year 2023-2024 1 page

I. Schedule School Year 2023-2024 1 page

J. Schedule Summer 2023 Summer 1 page

K. Enrollment Contract School Year 2023-2024 8 pages

L. Contract Summer 2023 Summer 4 pages

M. Letter to DOE June 7, 2023 5 pages

N. Letter to DOE with July 2023 Developmental Pediatric Report July 31, 2023 9 pages

O. Payment February 2023 Summer 2 pages

P. Tuition Affidavit (unsigned) November 2023 IMPARTIAL HEARING OFFICER’S EVIDENCE Summer 1 page

I. Parents’ Closing Argument 12/5/2023 7 pages

Footnotes

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

[2] Notably, the DOE was required to offer the Student a FAPE for the summer of 2023, as the DOE issued a pre-school IEP for July and August of 2023 and the evidence provided by the Parents conclusively establishes that the Student requires a 12-month program to make educational progress. (P-C, p. 1; F; N; R)