New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 254826

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 10/13/2023

10/16/2023

Actual Record Close Date: 10/24/2023

Decision Date: 10/25/2023

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/13/2023

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/16/2023

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], ESQ., Attorney

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

EXHIBIT DOCUMENT DATE PAGES

Entered 10/13/2023

A. Impartial Hearing Request/ Due Process Complaint (DPC) September 6, 2023 7 pages

B. Ten Day Notice (TDN) — August 15, 2023 — 3 pages

C. Email — May 22, 2021 — 1 page

D. Interpretive Report — July 2020 — 13 pages

E. Neuropsychological Evaluation — May-August 2021 — 11 pages

F. Program Description — 2023-2024 — 1 page

G. Contract — February 8, 2023 — 16 pages

H. Class Schedule — 2023-2024 — 1 page

I. Attendance Report — October 10, 2023 — 1 page

J. Mid-Year Report Card — January 2023 — 10 pages

K. End-Of-Year Report Card — June 2023 — 10 pages

L. Affidavit of [REDACTED] — September 22, 2023 — 4 pages

M. Affidavit of [REDACTED] — October 1, 2023 — 5 pages

N. Tuition Affidavit — October 11, 2023 — 1 page

DEPARTMENT OF EDUCATION (DOE)

None

IMPARTIAL HEARING OFFICER

Entered 10/13/2023

I Notice of Appointment, 09/08/2023, 4 pages

II Teleconference Notice, 09/08/2023, 1 page

III Notice of Appearance, 10/06/2023, 1 page

IV Pendency Agreement, 09/13/2023, 1 page

INTRODUCTION

On 09/08/2023, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Hearing commenced, on 10/13/2023, to allow an opportunity for the DOE to defend against the allegations contained in the DPC. (Ex A)

Hearing continued, and concluded, on 10/16/2023.

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

Due Process Complaint (DPC) relates to the 23/24 School Year, and allegations include:

- The DOE has failed to offer Student a free and appropriate public education (FAPE) for the 2023-2024 school year on procedural and substantive grounds;

- On August 15, 2023, the Parents gave the Committee on Special Education (CSE) written notice of their intent to unilaterally enroll Student at The [REDACTED] School (Unilateral Placement – UP);

- The Parents have therefore unilaterally enrolled Student at UP, for the 2023-2024 school year. (Ex A 1)

Parent seeks relief to remedy the alleged failure, including:

- DOE funding for unilateral placement (UP), at [REDACTED] School (UP), for the 23-24 school year. (Ex A 1 & 3)

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

THE POSITION OF EACH PARTY

The DOE did not defend any offer of a Free Appropriate Public Education (FAPE), for the Student, for the 23-24 school year. (T 12-13)

At Hearing, the Parent supported its position via Documentary Evidence and Oral Testimony.

The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below:

A. Due Process Impartial Hearing Request — 9/6/23

Details allegations of a denial of FAPE, for the 23-24 school year, and sought after relief.

B. Ten-Day Notice — 8/15/23

Parent notifies the DOE, via their Attorney, of: alleged failure to offer the Student a FAPE, for the 23-24 school year; failure develop an Individualized Education Program (IEP) for the 23-24 school year; intent to unilaterally place the Student at the UP; and intent to seek DOE funding. (Ex B 2)

C. Email — May 22, 2021

Parent communicates with the DOE seeking to have the Committee on Special education develop an IEP for the Student.

D. Interpretive Report — July 2020

Report reviews Student educational history and , Mental Health Status, and Current Functioning. (Ex D 1-4)

Student Testing is reviewed. (Ex D 4-11)

Testing reveals areas of Student challenge, setting forth diagnoses of:

o Attention Deficit Hyperactivity Disorder, Combined Presentation, Severe; and o Specific Learning Disorder, With impairments in reading (dyslexia) (Ex D 12)

Recommendations are made which include:

- Individual therapy to help develop healthy coping skills;

- Consider medication evaluation with a child psychiatrist to help with symptoms of ADHD;

- Share evaluation results with school staff in order to provide further information to support in the school setting;

- Home actions to support ADHD (Ex D 12);

- Classroom Setting recommendations including:

o Seated away from distractions

o Regular and frequent breaks

o Additional time for tests and quizzes

o Nonverbal support to maintain attention

o Dialogic reading (Ex D 12)

o To help with working memory, teach Student to chunk information and connect new information to concepts that she already knows; o Reduce distractions and extraneous stimuli when providing instructions; o Give one step of a multi-step direction at a time;

o Divide longer tasks into shorter tasks;

o Remove distractions;

o Repeat instructions as needed;

o Repeat instructions aloud or to self;

o As Student advances in education, provide an outline of key concepts prior to lesson presentation; and o As Student advances in education, provide handouts of overhead notes before classes or lectures. (Ex D 13)

E. Neuropsychological Evaluation — May-August 2021

Details Student’s educational challenges, concluding: “Although she is intelligent, she has a history of difficulties related to attention, reading, writing, and math, leading to her specialized placement. Results of the current evaluation indicate that she is extremely intelligent, but also that her cognitive profile is variable, she struggles with attention, and all of her academic skills are below average. Her academic weaknesses are even more concerning given her strong cognitive abilities. [Student’s] difficulties are consistent with diagnoses of Attention-Deficit/Hyperactivity Disorder (ADHD) and Specific Learning Disorders with impairment in reading (Dyslexia) and writing (Dysgraphia). Although she is responding to the specialized instruction she receives in school, ongoing specialized supports are clearly required. It is reasonable to assume that [Student] will be able to make appropriate progress provided the recommendations cited in this report are implemented.” (Ex E 6) Recommendations include:

- A specialized, small, structured, and supportive, class and school environment that can address her difficulties with communication, attention, and academics (Ex E 6-7);

- A high degree of direct one-to-one instruction throughout the day provided by highly trained special educators who are expert at dealing with students with language-based learning difficulties;

- Support throughout the day to help navigate peer interactions;

- An appropriate program must include a small student-to-teacher ratio, regular access to highly trained special educators who are expert at working with students with reading and writing challenges, and individualized instruction throughout the day;

- It is recommended that a deferral to the Central Based Support Team (CBST) be made to find an appropriate school;

- Given Student’s profile and the continuum of supports available through the Department of Education, this would be the least restrictive appropriate recommendation;

- Speech and Language Therapy;

- Occupational Therapy;

- Preferential Seating (Ex E 7); and

- Breaks. (Ex E 8)

F. Program Description — 2023-2024

General characteristics, of the UP, include:

- Students learn in small group settings designed to meet their individual needs. Our expert educators guide even our youngest students to understand their learning disabilities, uncover their strengths, and learn to identify what they need and ask for it; and

- As students progress to the upper grades of the Lower School, they’re met with tailored levels of support that broaden their academic knowledge while further developing their organizational and study skills - a solid foundation preparing them for Upper School. (Ex F 1)

G. Contract — February 8, 2023

Student 23-24 UP Tuition is set forth as: $[REDACTED].00. (Ex G 1) Parent is obligated to payment via signature upon the Contract. (Ex G 6)

H. Class Schedule — 2023-2024

Student’s 23-24 UP Schedule is set forth.

I. Attendance Report — October 10, 2023

Student is evidenced to be attending the UP, for the 23-24 school year.

J. Mid-Year Report Card — January 2023

Student curriculum, supports, and progress, are noted in areas which include:

- Reading (Ex J 1-2)

- Writing (Ex J 2)

- Math (Ex J 2)

- Social Studies (Ex J 3)

- Social Emotional Development (Ex J 3)

- Science (Ex J 4)

- STEAM (Ex J 9)

- Speech and Language Therapy (Ex J 9)

- Social Skills/Health and Human Relations (HHR) (Ex J 10)

K. End-Of-Year Report Card — June 2023

Student curriculum, supports, and progress, are noted in areas which include:

- Reading (Ex K 1-2)

- Writing (Ex K 2)

- Math (Ex K 3)

- Social Studies (Ex K 3)

- Social Emotional Development (Ex K 4)

- Science (Ex K 5)

- STEAM (Ex K 8)

- Speech and Language Therapy (Ex K 9)

- Social Skills/Health and Human Relations (HHR) (Ex K 10)

L. Affidavit of [REDACTED] — September 22, 2023

Student’s father provides Testimony that includes:

- Student is attending the UP, for the 23-24 school year;

- A review of Student strengths and weaknesses;

- Student struggles began at ag three, leading to a kindergarten recommendation to seek more one-on-one support, for the Student (Ex L 1);

- Family moved to New York in 2020, obtained a neuropsychological evaluation, of the Student (Ex E), and possible signs of ADHD and a learning disorder were revealed, as well as several diagnoses;

- Recommendations were made, as detailed above (Ex E);

- Parents attended an IEP meeting, for the Student, for the 22-23 school year, and a recommendation was made to which the Parents disagreed;

- For the 2023-2024 school year, the district did not evaluate the Student, hold an IEP meeting, or issue a school placement letter for Student;

- Student was without an IEP program and placement for the 2023-2024 school year;

- Left with no other choice, we placed Student at the UP in September of 2023 (Ex L 2);

- Notice of the unilateral placement was provided to the District (Ex B);

- Student has attended the UP since 2020;

- Student has thrived at the UP, and made meaningful progress;

- At the start of the 2023-2024 school year, I believed the UP would be appropriate for Student and would convey a meaningful educational benefit to her;

- UP provided appropriate services to the Student, such as one-on-one support;

- A review of Student’s progress and supports received , at the UP (Ex L 3);

- At the UP, Student received Speech and Language Therapy, special classes dedicated to language decoding, and has made progress in reading and writing;

- Student has made progress with social emotional skills;

- UP contract was signed, on 02/08/2023 (Ex G);

- Understanding Parents remain financially obligated, under the terms of the UP Tuition Contract;

- Parent would have withdrawn Student from the UP, if an appropriate DOE placement was offered, for the 23-24 school year;

- The UP is able to address the Student’s identified special education needs, for the 23-24 school year. (Ex L 4)

M. Affidavit of [REDACTED] — October 1, 2023

Witness provided Testimony as the CSE liaison, and member of the enrollment department, of the UP, which include:

- A review of her qualifications and experience;

- General characteristics of the UP, such as:

o 393 students grade K through 12

o Students are diagnosed with a language-based learning disability o Related services are provided as necessary, via school psychologist, social workers, speech and language therapist, and occupational therapists (Ex M 1)

o Typical class size is 12 students, with a head teacher and an assistant teacher o Students are grouped by age, social skills levels, academic needs, and learning styles (Ex M 2);

- Familiarity with the Student;

- Student is in the fourth grade;

- A review of Student supports in areas including: writing, executive functioning;

- Student supports include: small class size with specialized instruction, frequent teacher check-ins, multi-sensory instruction in all academic areas, and extra time to process her ides one-on-one with a teacher;

- Student has been able to acquire and obtain new skills;

- Student’s homeroom has two teachers and eleven students (Ex M 2);

- Student academic supports are detailed in areas of: Reading, and Writing (Ex M 3-4);

- Student specific supports are continued to be detailed and include: extended time, check-ins, repetition and reinforcement, small group individualized instruction, a counseling group, verbal cues, movement breaks, Speech Language Therapy 2x30 minutes and Counseling 1 x 30 minutes (Ex M 4);

- During the 23-24 school year the Student has become a more active participant in all academic content areas ad grown in confidence in academic and social-emotional situations;

- The UP is an appropriate school setting for Student and can provide interventions and supports. (Ex M 5)

N. Tuition Affidavit — October 11, 2023

Student UP 23-24 Tuition is $[REDACTED]. So far $[REDACTED].00 has been paid and a balance of $[REDACTED].00 remains.

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]- [B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]). The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000). A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65). The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]). Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68). A recent United States District Court for the Southern District of New York decision, Cohen v. N.Y.C. Dep’t of Educ., 09/26/2023, clarified that information regarding a Parent’s financial capability is not a part of Parent’s burden, once the DOE has been showed to deny the Student a FAPE (Cohen v. N.Y.C. Dep't of Educ., 2023 U.S. Dist. LEXIS 171815): “To place a burden on parents to establish financial inability to pay for an alternative private placement, when the district has failed to provide their child a "free and appropriate public education" as required under the IDEA, entirely contradicts the clear legislative mandate that special education placements are, by definition, to be provided at "no cost to the parent." N.Y. Educ. Law § 4401(1) (McKinney)… Accordingly, the Court finds that Plaintiffs are not required to establish financial hardship in order to seek direct retrospective payment…” (Cohen v. N.Y.C. Dep't of Educ., 2023 U.S. Dist. LEXIS 171815 at 5)

DOE offer of FAPE for the 23-24 School Year

The DOE opted not to present a defense to the Parent’s allegations. The district has presented no witnesses in this matter. An IEP, applicable to the 23-24 school year, has not been evidenced. The DOE has not evidenced development of an appropriate IEP for the commencement of the 23-24 school year. DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 23-24 school year. I find the DOE failed to offer the Student a FAPE for the 23-24 school year.

UP Placement for the 23-24 School Year

Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 23-24 school year. The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. I find that the documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent. Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex A, D, E, F, J, K, L & M) I find that the UP provides special education services specifically tailored to meet the needs of the Student. I find UP provides an appropriate education and program for the Student for the 23-24 school year.

TUITION FUNDING 23-24 School Year

I find the Parent is entitled to Student’s UP Tuition funding, via the DOE, for the 23-24 school year. The DOE has denied a FAPE to the Student for the 23-24 school year. Parent provided appropriate Ten Day Notice, to the DOE. (Ex B) Student 23-24 UP Tuition is set forth as $[REDACTED].00. (Ex G 1) Parent is obligated to payment via signature upon the Contract. (Ex G 2) Parent is evidenced to have paid $[REDACTED].00 under the Student’s 23-24 Tuition Contract, with an open balance remaining, of $[REDACTED].00. (Ex N) In this matter the Parents choose to continue Student placement at UP, without any DOE alternative. I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to direct DOE funding of the UP tuition, for the 23-24 school year.

I find the Parent is entitled to DOE funding of the Student’s attendance, at the UP funding as Ordered below.

ORDER.

1. The Department of Education (DOE) failed to offer the Student a FAPE for the 23-24 school year.

2. The [REDACTED] School (UP) provides Student with an appropriate program and placement, for the 23-24 school year.

o The DOE shall fund Student’s [REDACTED] School (UP), 23-24 Tuition, in the amount of $[REDACTED].00, via reimbursement to the Parent.

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

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

DATED: October 25, 2023

DANIEL AJELLO

DANIEL AJELLO

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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