New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 254929

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 10/16/2023

Date of Hearing: 10/17/2023

Actual Record Close Date: 10/21/2023

Decision Date: 10/22/2023

Hearing Officer: Daniel Ajello Esq.

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: NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/17/2023

(All Parties Appeared Via Teleconference)

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

[REDACTED], Parent

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

EX. DOCUMENT DATE PAGES

Entered 10/16/2023

A. Due Process Impartial Hearing Request 9/6/23 5

B. Ten-Day Notice 8/17/23 4

C. Ten-Day Notice Response 9/11/23 1

D. Neuropsychological Evaluation July 2020 33

E. [REDACTED] Program Information undated 1

F. End of Year Report Card 2022-2023 June 2023 13

G. Enrollment Contract 5/30/23 7

H. Payment Affidavit 9/11/23 1

I. Daily Schedule 2023-2024 1

J. IRS e-file Signature Authorization 3/3/21 1

K. /8/21 24

Entered 10/17/2023

L. Educational Update 12/5/22 4

DEPARTMENT OF EDUCATION (DOE)

None

IMPARTIAL HEARING OFFICER

Entered 10/16/2023

I Notice of Appointment, 09/02/2022, 4 pages

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

III Notice of Appearance, 09/26/2023, 1 page

IV Pendency Agreement, 09/18/2023, 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 10/16/2023, to allow an opportunity for the DOE to defend against the allegations contained in the DPC. (Ex A)

Ultimately, the DOE did not avail itself of the opportunity to defend against the allegations contained in the DPC.

Hearing continued, and concluded, on 10/17/2023.

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) on procedural as well as substantive grounds;

- The Parents have unilaterally placed Student at the [REDACTED] (Unilateral Placement – UP)and seek direct funding for this placement;

- Student is one with academic, language, and social/emotional deficits that impede her education;

- Student is known to the NYC DOE (Ex A 1);

- Parents maintain that the most recent IEP, OF 12/05/2022, developed for Student is inappropriate (Ex A 1-3); and

- The DOE has not recommended a school placement for the Student, related to the most recent IEP. (Ex A 3)

Parent seeks relief to remedy the alleged failure, including:

- DOE funding for unilateral placement (UP), at [REDACTED] (UP), for the 23-24 school year. (Ex A 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 22)

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

Parent Attorney argues that: the DOE failed to offer the Student a FAPE, for the 23-24 school year; the UP meets the Student’s unique needs; Student continues to make progress, at the UP; and Parent is entitled to DOE funding for the Student’s placement, at the UP, for the 23-24 school year. (T 14-16)

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

[REDACTED], Parent

Student’s Parent provided Testimony that included

- Detailing Student strengths and areas of struggle;

- Attendance, at the UP, since 2020 (T 17);

- Student has made great progress, at the UP;

- Student’s classes have 12 students, and two teachers (T 18-19);

- Regarding small class size: “…for her it's very necessary for her to be in such a small group because, you know, she still struggles a lot with the basics…even though she's so bright, like, you know, the dyslexia, you know, really -- you know, she struggles with it…when it comes to simple things like having to write something, you know…she needs a lot of one-on-one…same when it comes to like, decoding information… she still requires a lot of one-on-one in certain things… I feel like the only way to get that is in a small setting.” (T 19);

- Student still requires the supports delivered during the 22-23 school year, which have resulted in Student progress, including: a small guided reading group; multisensory, small group decoding and spelling instruction; frequent teacher check-ins; one-on-one teacher support; graphic organizers; smaller math group; support, including Counseling (HHR), to reduce Student anxiety; a sensory gym; and executive functioning support. (T 19-31);

- Student continues to require the supports detailed in the Educational Update (Ex L, T 31-33);

- The UP is addressing Student’s identified needs over the '23/'24 school Year (T 33 & 34);

- Student benefits from enrollment in a specialized school: “in addition to… the class size being small…she is with…other kids that are just as bright as her, but that are struggling the same as her. I think before, when she was in a gen ed setting, one of her biggest struggles was knowing that she was struggling, and not seeing any of her peers struggle along with her…also because this is a school for language-based disabilities, that's sort of like their specialty…they know how to you know, treat just that.” (T 34);

- Parent signed an enrollment Contract, with the UP, for the 23-24 school Year, and has paid $[REDACTED].00 towards Student Tuition (T 34, Ex G);

- Tax information, entered into evidence (Ex J), is an accurate depiction of Witness’ finances. Parent adds “We’re still very much struggling financially.” (T 35); and

- Parent remains obligated to payment under the terms of the Tuition Contract (T 35, Ex G).

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 8/17/23

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

C. Ten-Day Notice Response 9/11/23

The DOE advises the Parent that they do not consider the DPC (Ex A) one which is appropriate for settlement.

D. Neuropsychological Evaluation July 2020

Evaluation sets forth several Student diagnoses:

o Learning Disability in: Mathematics, Reading and Written Expression;

o Developmental Motor Coordination Disorder (significant fine motor weakness that affect writing) and o Anxiety symptoms (Ex D 18)

Recommendations regarding Student’s education include:

- A special education school for children who have learning disabilities;

- Wrap-around services of learning specialists and special educators in a small special education school that can address all facets of learning;

- Smaller class size and intensive remediation that cannot be provided in a general education or even an ICT setting;

- Specialized setting for children with learning disabilities to appropriately meet her needs and anything less than that will place her at further risk for regression;

- Modifications in the curriculum should be made to meet Student where she is at academically so that she can meaningfully access opportunities for 1:1 instructional remediation in school (reading, writing, and mathematics (Ex D 15);

- Occupational Therapy;

- Counseling; and

- Testing, instructional and environmental accommodations (Ex D 16-17)

E. [REDACTED] Program Information undated

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 E 1);

F. End of Year Report Card 2022-2023 June 2023

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

- Reading (Ex F 1-2)

- Writing (Ex F 3)

- Math

- Social Studies (Ex F 4)

- Social Emotional Development (Ex F 5)

- Science (Ex F 6)

- STEAM (Ex F 11)

- Occupational Therapy (Ex F 11-12)

- Health and Human Relations (HHR) (Ex F 12-13)

G. Enrollment Contract 5/30/23

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 4-5)

Payment schedule is included. (Ex G 6-7)

H. Payment Affidavit 9/11/23

Parent is evidenced to have paid $[REDACTED].00 under the Student’s 23-24 Tuition Contract. (Ex H)

I. Daily Schedule 2023-2024

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

J. IRS e-file Signature Authorization 3/3/21

Parent is evidenced to have negative income for 2020.

K. /8/21

Decision relates to the 20-21 school year, finding a denial of FAPE, and awarding DOE funding for Student Tuition. (Ex K 20)

L. Educational Update 12/5/22

Educational update confirms areas of Student special education need in areas that include: Decoding, Reading Comprehension, Writing, Math, and Executive Functioning. (Ex L 1-2)

Detailed management needs, for the Student, are presented, including: small group instruction; one-to-one assistance; frequent breaks and a flexible academic environment. (Ex L 3)

Student Social Emotional/Counseling Progress Report indicates that she benefits from adult support. (Ex L 3)

Student Occupational Therapy Report confirms areas of challenge and the need for continued services in this area. (Ex L 4)

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, B, D, E, F, I & 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 4-5)

Parent is evidenced to have paid $[REDACTED].00 under the Student’s 23-24 Tuition Contract. (Ex H)

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:

o Reimbursement to the Parent $[REDACTED]; and o Direct Payment to [REDACTED] (UP) $[REDACTED].

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: October 22, 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.