Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 254889

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 10/13/2023

10/20/2023

11/03/2023

Actual Record Close Date: 11/09/2023

Decision Date: 11/09/2023

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], Legal Assistant

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/20/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], Attorney

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 11/03/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED]., Attorney

[REDACTED], Parent Student

For the Department of Education:

[REDACTED], District Representative

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

EX. DATE DOCUMENT PAGES Entered 10/13/2023 A 9/6/23 Due Process Complaint (DPC) 11 Entered 11/03/2023 B 8/22/23 Ten Day Notice (TDN) Confirmation 1 C 8/22/23 Ten Day Notice (TDN) 4 D 3/18/21 Neuropsychological Evaluation 20 E 3/22/22 Psychiatric Evaluation 2 F 3/13/23 Support Letter from Psychotherapist 2 G 2/27/23 [REDACTED] Enrollment Contract 6 H 2023-2024 [REDACTED] Friends Program Description 2 I 2023-2024 [REDACTED] Friends Class Schedule 2 J June 2023 [REDACTED] Friends Report Card 9 K 10/26/23 Affidavit of Testimony: [REDACTED] 2 L 10/27/23 Affidavit of Testimony: [REDACTED] 7

DEPARTMENT OF EDUCATION (DOE)

None

IMPARTIAL HEARING OFFICER

Entered 10/13/2023

I Notice of Appointment, 09/08/2022, 4 pages

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

III Notice of Appearance, 09/14/2023, 1 page

IV Pendency Implementation Form, 09/14/2023, 1 page

V DOE Email, 10/13/2023, 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) The DOE did not appear, and instead requested an email be placed into the Record. Email appears as IHO Ex V. Ultimately, the DOE did not avail itself of the opportunity to defend against the allegations contained in the DPC.

Hearing continued, on 10/20/2023, and concluded, on 11/03/2023.

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 that the Department of Education (DOE) failed to offer the Student a free and appropriate public education (FAPE), for the '23-'24 school year. Relief sought includes DOE funding for the [REDACTED] School (Unilateral Placement – UP), along with transportation. (Ex A 9-10)

At Hearing, the Parent Attorney withdrew the claim related to transportation.

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.

At Hearing, of 10/13/2023, the Parent Representative advised that settlement documents were being exchanged and there was hope the settlement process would move forward.

At Hearing, of 10/20/2023, the DOE Representative stated that a recommendation for settlement was made, and that the DOE was awaiting documents. (T 11)

Parties were still working on exchanging documents, and hearing was set for 11/03/2023.

Hearing then concluded, on 11/03/2023.

Parent Attorney supported the Parent’s position via Documentary evidence.

Parent Attorney recounted the details of the Parent’s position, at Hearing, (T 21-22)

The DOE had no rebuttal to the Parent’s case, instead noting it had made a settlement offer. (T 24)

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.

C 8/22/23 Ten Day Notice (TDN) Confirmation

Parent notifies the DOE of: alleged failure to offer the Student a FAPE, for the 23-24 school year; failure to offer an appropriate 23-24 school placement; and intent to unilaterally place the Student at the UP and seek DOE funding.

D 3/18/21 Neuropsychological Evaluation

Student evaluation includes:

- A review of Student records, relevant history, and testing results (Ex D 1-13); - Diagnoses include: o Attention Deficit Hyperactivity Disorder, Combined Type, Moderate o Unspecified Anxiety Disorder o Language Disorder o Specific Learning Disorder with impairment in written expression o Specific Learning Disorder with impairment in mathematics o Developmental Coordination Disorder (Ex D 13) - Recommendations are made that include: o Noting that: “With the appropriate services for the learning struggles since 4th grade, [REDACTED] has made academic progress. However, her cognitive and emotional (heightened anxiety) struggles continue to interfere with her learning.” (Ex D 14); o Student continues to require a small (i.e., student-to-teacher ratio), structured, supportive classroom with a multi-sensory academic curriculum within a small therapeutic language-based school environment that can offer her frequent, individualized special education support for her deficits in reading, writing, math as well as learn the executive functioning skills (e.g. cognitive flexibility, inhibition, planning, organization, attention to detail); o Speech and language therapy 2 times a week to help with her expressive language skills; o Counseling o Writing intervention (Ex D 14); o Assistive Technology (Ex 15-16); and o Supports to address difficulties with executive functioning (Ex D 16-17).

E 3/22/22 Psychiatric Evaluation

Confirms Student educational challenges, including a history of ADHD.

Recommendation includes that Student: “continues to require a small-classroom, structured setting, with psychological and learning supports for her significant ADHD and anxiety symptoms to ensure optimal learning and management of symptoms by receiving more individualized attention from the teachers. This setting would allow her to improve her academic skills and have her emotional and behavioral needs met in an appropriate environment…should continue to receive counseling, speech and language therapy, and occupational therapy at school as indicated if determined by IEP programming…should continue with medications and individual psychotherapy to help her attain improved behavioral control and address anxiety.” (Ex E 2)

F 3/13/23 Support Letter from Psychotherapist

Letter confirms support being provided to the Student , which has resulted in Student progress academically. (Ex F 1-2)

Supports are recommended: “Without this level of continued support, [Student] is likely to substantially regress academically, socially, and emotionally. “ (Ex F 2)

G 2/27/23 [REDACTED] Enrollment Contract

Student 23-24 Tuition is set forth as $[REDACTED].00. (Ex G 1)

Parent is obligated to payment of tuition via signature upon the contract. (Ex G 6)

H 2023-2024 [REDACTED] [REDACTED] Program Description

Program Description sets forth general characteristics, of the UP:

- K-12 college preparatory program dedicated to the success of students with learning disabilities. Grounded in the Quaker values of equality, integrity, and social responsibility, we cultivate a diverse and anti-racist community in which all students can reach their full potential. Our specialized teaching methodologies and challenging curricula empower students to become academic achievers, creative thinkers, advocates for equity, and contributing members of a global society. (Ex H 1); - The middle school responds to the unique developmental and social needs of their students with learning disabilities. The program is semi-departmentalized, anchored in whole group content area classes and small group literacy and math classes. (Ex H 1); - The middle school curriculum deepens and broadens the skills and knowledge students acquired in the lower school. Sixth through eighth graders have longer periods of language arts and math, and a continued integrated approach to social studies and science. The program expands to include classes on social emotional learning, digital literacy, and research skills. Visual and performing arts are taught in isolation and in collaboration with other classes. Students’ writing skills are developed across contexts using our standardized writing program. (Ex H 1-2); - In addition to academic pursuits, students have the opportunity to join clubs - newspaper publishing, cooking, wearable art and juggling, to cite a few. In addition, after-school sports and drama are important elements of the program. (Ex H 2); and - Unique among New York City special education programs, the middle school offers students weekly lessons in conversational Spanish and vocabulary for three years. (Ex H 2)

I 2023-2024 [REDACTED] [REDACTED] Class Schedule

Sets forth Student 23-4 UP Schedule.

J June 2023 [REDACTED] [REDACTED] Report Card

Details Student performance, for the 22-23 school year.

Includes Student classes, characteristics related to academics and school performance. (Ex J 2-3)

Looking forward the Report includes: “areas that have presented as challenges for [Student] have become goals to work toward. One goal for [Student] is to begin to become aware of her distraction and advocate for tools or strategies to help her focus during academic times. As the year progressed, [Student] demonstrated growth in participation, being responsible for completing her classwork, and with support, was able to demonstrate stamina with independent work. With reminders, [Student]a continued to work on participating more frequently in her content area classes. In science, Perspectives on Peace, and current events, [Student] continued to show great interest in the topics being discussed and began to ask clarifying questions when needed. “ (Ex J 3)

Report details Student areas of challenge, goals and progress, in areas that include: Literacy, Reading, Writing (Ex J 5); and Math (Ex J 6.

K 10/26/23 Affidavit of Testimony: [REDACTED]

Student’s mother provides Testimony that includes:

- Objection to recent DOE recommended program and placement; - Enrollment, of the Student, at the UP; - Contract with the UP, which allowed withdrawal if Student was enrolled at a Public School (Ex G, Ex K 1); and - Cooperation with the DOE, via attendance at all meetings, and by providing all relevant information. (Ex K 2)

L 10/27/23 Affidavit of Testimony: [REDACTED]

Speech Language Therapist,and CSE Coordinator, employed by the UP, and familiar with the Student, provided Testimony that included:

- Recounting qualifications and experience (Ex L 1-2); - Characteristics, of the UP include: it is not a religious school, average class size if six students to one teacher, with literacy and math groups as small as 3:1; professional development opportunities for teachers; students are grouped based upon overall needs (Ex L 2); UP offers SLT; admission process includes review of documentation, and conversations with admissions staff; and Student’s[REDACTED] grade 23-24 class had a ratio of 12 students with two teachers (Ex L 3); - Student’s difficulties include: the areas of executive functioning, expressive and receptive language, processing, working memory, reading, writing and math; - Student’s needs include: direct instruction in executive functioning strategies; consistent clarification and repetition of directions, along with steps broken down into smaller, achievable tasks; individualized support to access, manipulate, retain and apply new information; slower pace of instruction and additional wait time to support processing abilities; consistent and responsive multisensory instruction across academic environments; clear and consistent expectations upon entering the classroom; frequent review of previously taught material; on task focusing prompts to increase her attention; small groups/classes with the support of an additional teacher; to improve academic stamina during challenging tasks. (Ex L 3); - Student supports, for the 22-23 school year, are detailed, including: program-wide and individualized supports at UP, such as: 1:1 check-ins for organizing her homework planner and staying on top of independent work that was overseen by her homeroom teachers. Additionally, she used grade-wide organizational systems (printed daily schedules, uniform transition slides between classes, binder planning and organization periods, 1:1 check-ins with students about work) to keep focused, on time with assignments, engaged and organized (Ex L 4);

- UP program has been appropriate, for the Student: “[Student’s] small class sizes and even smaller reading and math groups both last year and this year have been appropriate for her. The learning profiles of the students in [Student’s] groups are similar to her own profile, which allows the teachers to appropriately differentiate instruction for the group.

Second, [Student] has had and continues to have like-minded peers in her small groups, which allows her to feel more secure taking risks when completing work. Third, being in small groups of less than seven students for reading and math provides time for [Student] to work 1:1 with her teacher, which is essential to her progress. (Ex L 5); - Student academic performance, supports, and progress are detailed, in areas of:

Counseling (Ex L 4); Math (Ex L 5-6); an Literacy (Ex L 6-7); - Witness believes the UP has served, and continues to serve, as an appropriate placement for the Student, since the 19-20 school year; - Student continues to make progress vis the UP program and supports. (Ex L 7)

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 B, D, E, F, H, I, J, K & L)

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 & C)

Student 23-24 UP Tuition is set forth as $[REDACTED].00. (Ex G 13)

Parent is obligated to payment via signature upon the Contract. (Ex G 6)

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 direct 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] (UP) provides Student with an appropriate program and placement, for the 23-24 school year.

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

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

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

DATED: November 9, 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.