Impartial Hearing Decision

CASE NUMBER: 608447 - NYC: 255599

FINDINGS OF FACT AND DECISION

Student’s Name:1 REDACTED (“student”)

Date of Birth: REDACTED

School District: NYC # REDACTED

Hearing Requested by: REDACTED (“Parent”)

Request Date/Date Complaint Filed: 09/07/2023

Date(s) of Hearing: 12/06/2023

Actual Record Closed Date: 12/14/2023

Date of Decision: 12/15/2023

Date of Distribution if Different than Decision Date: N/A Hearing Officer: Leah Martin, Esq.

Time Sensitive: Yes

1 Personally identifiable information is attached as Appendix B, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 12/6/23

For the Student:

REDACTED (“Parent Counsel”), REDACTED (“Parent”), REDACTED (“Division Director”),

For the Department of Education:

REDACTED (“DOE Representative”)

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on September 7, 2023. (Ex. A).^[2] In the DPC, Parent alleges that the Department of Education (“DOE”) failed to offer the student a free appropriate public education (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act of 1973 (“504”) for the 2023-24 school year. (Ex. A). Parent has unilaterally placed the student in a private school (“Private School”) and is seeking a combination of reimbursement and direct payment of tuition as well as transportation for the student’s attendance there. (Ex. A-5). Parent is additionally seeking a publicly funded independent neuropsychological evaluation. (Ex. A-5).

I was appointed on September 11, 2023. On October 13, the parties appeared virtually for a pre-hearing conference (“PHC”). At the PHC, the parties agreed to give the DOE more time to complete their investigation in the hopes of potentially settling the case. (PHC Transcript). A status conference (“SC”) was scheduled for an update on potential settlement. Pendency was raised in this matter. (Ex. A-5). The parties agree that the student’s pendency placement is at the Private School on a 10-month basis, based on an unappealed findings of fact and decision (“FOFD”) dated January 6, 2023. (PEND Agreement; PEND FOFD). The DOE executed a Pendency Implementation Form memorializing that agreement on October 13, 2023. (PEND Agreement). At a November 3rd SC, DOE Representative indicated that the case was not recommended for settlement, the parties discussed issues and evidence for hearing, and a hearing date was set. (SC Transcript 11.3.23). An extension was jointly requested and granted for witness availability. (Id.; Order of Extension).

A virtual hearing was held on December 6, 2023. It was a closed hearing. Parent Counsel and DOE Representative were both present, as was Parent. At hearing, the DOE presented no exhibits or witnesses (Tr. 23-24) and declined to give an opening or closing statement (Tr. 29, 59). Parent entered 15 exhibits (A-O) into evidence without objection. (Tr. 24-26). Parent presented testimony from three witnesses at the hearing: Division Director (Ex. N),^[3] Parent (Ex. M), and the student’s speech-language pathologist (“SL Pathologist”).^[4] Division Director and Parent gave live testimony in addition to their affidavits. Parent Council made oral closing arguments on the record. (Tr. 60-64). The record was closed on December 14, after receipt and review of the hearing transcript. (Record Close Email).

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the IDEA, 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, Educ. Law §4404 et seq., and its implementing regulations, 8 NYCRR §200.^[5] et seq., and Section 504,5 29 U.S.C. §794(a).

BACKGROUND

The student is currently in the sixth grade and classified as a student with a learning disability. (Ex. A-2; D-1). The student has been diagnosed with a Language Disorder and Specific Learning Disorders with Impairments in Reading and Written Expression. (Ex. A-2). In February 2023, the DOE conducted a neuropsychological evaluation of the student. (Ex. A-3). On March 6, 2023, Parent emailed the DOE expressing her concern with the evaluation and requesting an independent educational evaluation (“IEE”). (Ex. A-3; B-1). On April 19, 2023, the DOE convened a meeting of the committee on special education (“CSE”) and developed an individualized education program (“IEP”) for the student for the 2023-24 school year. (Ex. A-3).6 The CSE recommended a 12:1 special class with Special Education Teacher Support Services (“SETSS”) five times per week and counseling (1x40 in a group and 1x40x1). (Ex. A-3; M-2-3). Thereafter, the DOE recommended a public-school location to implement the 4/19/23 IEP (“Public Placement”). (Ex. A-5). Parent attempted to contact the Public Placement but did not hear back. (Ex. A-5; C-3; M-3). On August 23, 2023, Parent sent the DOE a Ten-Day Notice, providing notice of their concerns with the proposed program and intent to enroll the student at Private School unless an appropriate program and placement was offered by the DOE prior to the start of the school year. (Ex. C). The letter also included a request for transportation to Private School, as well as funding for an independent evaluation. (Ex. C-3). On September ^[6], Parent toured the Public Placement and learned that they were unable to implement the student’s IEP because their sixth grade 12:1 class was full, and they could not implement daily SETSS. (Ex. M-3). On September 20, Parent sent the DOE an additional notice, again detailing their concerns with the recommended program and including the information about the Public Placement being unable to implement the IEP. (Ex. D). The letter indicated the Parent’s intent to continue the student’s placement at Private School and seek public funding for that placement. (Ex. D-3). The DOE did not substantively respond to the Ten-Day Notice, the subsequent notice letter, or the Parent’s IEE request and the student was unilaterally placed at the Private School for the 2023-24 school year. (Ex. A). The DOE has not been providing the requested bussing for the student to attend the Private School. (Tr. 58).

ISSUES

Parent alleges a denial of a FAPE7 for the 2023-24 school year based on a number of procedural and substantive violations. (Ex. A). The DPC alleges a FAPE denial based on the following allegations:

7 While the DPC alleges a FAPE denial under the IDEA and 504, the 504 claims were not raised at the hearing and are deemed abandoned. At the November 3rd SC, the parties were advised that parents have the burden on all claims under 504, and that any issue alleged in the DPC that is not subsequently argued at the hearing will be deemed abandoned. (SC insufficient prior written notice, lack of information regarding the proposed Public Placement, the Public Placement’s inability to implement the IEP, the CSE’s reliance on insufficient evaluative data (based on a lack of social history, classroom observation, or behavior assessment), the CSE being improperly constituted, the CSE’s failure to consider the full continuum of special education programs and services, the CSE’s failure to discuss the annual goals at the meaning, the IEP’s predetermination based on policies rather than the student’s needs, a lack of discussion at the CSE meeting that prevented parent participation, the fact that the recommended 12:1 class was too large and lacked the multisensory instruction and individual attention the student needs, insufficient management needs and goals, the lack of a full-time special education program, and the lack of Orton-Gillingham-based instruction. (Ex. A).^[8] However, the only allegations argued at the hearing concerning a denial of a FAPE were that the CSE failed to consider the Parent’s concerns, that the proposed Public Placement could not implement the student’s IEP, and that the relevant IEP removed speech language therapy (“SLT”) from the student’s recommended program. (Tr. 31-32). The allegation concerning the removal of SLT was not alleged in the DPC, so this issue was not appropriately raised and will not be considered herein.^[9] As per my prehearing directives, all allegations concerning a denial of a FAPE that were not argued at the hearing are deemed abandoned. The only remaining allegations are that the CSE failed to consider the Parent’s concerns and that the DOE offered a Public Placement that could not implement the student’s IEP. Accordingly, the alleged denial of a FAPE will be analyzed on those grounds only.

Parent additionally contends that the Private School is an appropriate placement for the student, that she is entitled to an IEE at public expense, that the student is entitled to transportation, and that the equities support funding for tuition. (Tr. 31-33, 61-64). By way of relief, Parent is seeking reimbursement of $100 paid toward tuition, with the balance paid directly to Private School. (Tr. 27, 33, 64). Additionally, Parent is requesting that the DOE provide busing for the student to the Private School, and that they provide funding for a neuropsychological IEE at a provider of her choosing at a rate up to $6,000. (Tr. 33, 64). While DOE Representative did not explicitly concede a denial of a FAPE (Tr. 28), they declined to put on a case and did not dispute any of the Parent’s allegations or the requested relief.

Transcript 11.3.23). Parent Counsel was again warned at the start of the hearing that any issues raised in the DPC but not argued at the hearing would be deemed abandoned. (Tr. 27). Notwithstanding, at hearing, no arguments were made with respect to 504. For these reasons, I find that the 504 claims have been abandoned. Even if they were not abandoned, Parent has failed to meet her burden of proof on those claims. Accordingly, this decision will only analyze the alleged denial of a FAPE under the IDEA.

FINDINGS OF FACT10

The student received a neuropsychological IEE (“Prior Neuropsych”) after second grade,11 which gave him his current diagnoses and recommended a small student-teacher ratio and evidence-based reading instruction, such as Orton-Gillingham. (Ex. A-2; M-2). According to that evaluation, the student’s language weaknesses were mild, but could worsen without appropriate intervention. (Ex. A-2). The student has attended the Private School since the 2020-21 school year. (Ex. A-3; M-2; Tr. 36). In those three school years the student’s Private School tuition was publicly funded, twice through FOFDs (determining that it was an appropriate unilateral placement), and once through pendency. (Ex. A-3). The student’s end-of-year progress report from the 2022-23 school year (“EoY Report”) shows that he made progress there last year. (Ex. G).12

The DOE conducted a neuropsychological evaluation (“DOE Neuropsych”) on February 13, 2022. (Ex. A-3; B-1). During the evaluation, the student was visibly nervous, shaking, and sweating. (Ex. B-1; M-2). He was unable to answer many of the questions asked by the evaluator, due to his nerves. (Ex. B-1). The student wanted to use a fidget to deal with his anxiety but was denied by the evaluator. (Ex. M-2). The student felt that the evaluator rushed through the evaluation and did not give him sufficient time to answer questions. (Ex. M-2). For these reasons, Parent did not feel that the results were an accurate assessment of the student’s true abilities. (Ex. M-2). Furthermore, the evaluator diagnosed the student with Attention Deficit Hyperactivity Disorder (“ADHD”), but Parent believes that the student’s anxiety was presenting as inattention and that the diagnosis was made in error. (Ex. M-2). Accordingly, Parent disagrees with the DOE Neuropsych and is seeking a publicly funded neuropsychological IEE (“Neuropsych IEE”). (Ex. A-3; B-1; M-2). Parent has communicated with the doctor that did the Prior Neuropsych, and they have agreed to do the Neuropsych IEE for $6,000. (Tr. 57).

On August 30, 2023, Parent signed a contract re-enrolling the student at Private School for the 2023-24 10-month school year. (Ex. I). Under the contract, Parent is financially liable to pay the annual tuition of $79,895. (Ex. I). Parent has paid $100, in the form of a deposit, towards that tuition balance and $79,795 is still owed. (Ex. I-1; J-1; K-2). Parent is financially unable to pay the balance of tuition. (M-2-3; L).

Private School is a special education school that specializes in students with strong cognitive profiles and language-based learning disabilities. (Ex. E-1; N-1-2; Tr. 46). They offer evidence-based teaching methods that include explicit, sequential, direct, and multisensory instruction. (Ex. N-2). All

10 Facts from the “Background” and “Introduction and Procedural History” sections above are incorporated here as well. 11 The exact date of this evaluation is unclear from the record. It is not in evidence. 12 This report was dated June 14 (Ex. G-27), so it was not available at the time of the April 19 CSE meeting and will not be considered as part of what the CSE knew at that time. Additionally, the end-of-year speech and language report (“SL Report”), would similarly not have been available to the CSE. Although undated, presumably they would have been issued at the same time and Division Director testified that progress reports are issued mid-year and at the end of the year. (Tr. 38). The SL Report recommended “[c]ontinued language support … to address listening comprehension, auditory attention, higher-order thinking (e.g., finding main ideas, inferences, figurative language), word retrieval, and organization/formulation of spoken and written language.” (Ex. H-2). Private School teachers and therapists receive 30 hours of Orton Gillingham13 training as well as ongoing coaching with a reading specialist. (Ex. N-2; Tr. 40). Private School offers coaching by a math specialist for their multisensory math approach as well. (Ex. N-2; Tr. 40). All Private School faculty are trained in the Yale University RULER program14 and executive functioning skills development, as well as other topics. (Ex. N-2; Tr. 40-41). They use technology like Learning Ally Audiobooks for students with language disabilities, as well as Google suite applications. (Ex. N-2).

The EoY Report and SL Report show that the student learns best with explicit, sequential, recursive, and multisensory instruction, broken down information and tasks, explicit and regularly reviewed grammar instruction, SLT, movement breaks, previewed tasks, scaffolding, sentence starters, models, regular review, adult-monitored peer conflict resolution, and the opportunity to brainstorm with the teacher. (Ex. G-1-2; H-1). It says that the student requires “a language-immersive environment,” and support when answering questions verbally. (Ex. G-1). The EoY Report contained information about the student’s skills and deficits at the time, as well as goals for the following school year. (Ex. G).

The student’s schedule at Private School includes homeroom, technology, math,^[15] writing,^[16] reading,^[17] gym, photography, science, drama, art, and music. (Ex. F-1). All the student’s classes have a head teacher and an assistant teacher. (Ex. N-3; Tr. 39). The student’s homeroom class18 has twelve students, grouped by “age, social interests and development and academic needs.” (Ex. N-3). The student is with his homeroom class for history, student advocacy, social emotional learning,^[19] and advisory20 classes. (Ex. N-3-4). The student’s reading, writing, and math classes are all grouped by academic need and functional level. (Ex. N-6; Tr. 42-44). The student’s reading class has nine students and two teachers.^[21] (Ex. N-4; Tr. 39). The student’s writing class has nine students and two teachers.^[22] (Ex. N-6; Tr. 39). The student’s math class has seven students and two teachers. (Tr. 39).

13 “Orton Gillingham is a structured, sequential, systematic approach to reading, which involves multi-sensory instruction and a strong emphasis on phonics and morphology. [It] is a Structured Literacy approach to reading instruction that includes all of the elements of effective instruction for struggling readers recognized by the International Dyslexia Association (IDA).” (Ex. N-2).

14 This infuses emotional intelligence skills throughout the school day. (Ex. N-2).

18 His head homeroom teacher has a master’s degree in Elementary and Special Education, grades one through six, and has a certificate to teach Orton-Gillingham. (Ex. N-3). The homeroom assistant teacher has a bachelor’s degree and is working toward her Master’s in Childhood General/Special Education. (Ex. N-4).

20 This focuses on organization, study skills, and executive functioning. (Ex. N-3).

The student receives one pull-out session of SLT weekly in a group of two to three, and the SL Pathologist pushes into the whole class session (writing class) two times per week. (Ex. N-3; O-1).^[23] In his individual SLT session, the student works on “targeted skills” such as vocabulary, analogies, paraphrasing, word strategies, word order, and higher-level comprehension questions.” (Ex. O-1-2). Although the student does not have regularly scheduled OT, he consults with the occupational therapist as needed to work on movement breaks. (Ex. N-3). Private School provides the student with specific phonemic instruction, repetition, review, expressive language support when answering questions, modified materials (such as books that include visuals, or audiobooks), key parts of texts read aloud by the teacher, a multiplication chart, manipulatives, pictorial representations, opportunities to review work and check for calculation errors in math, Thinking Maps for reading, writing, and history, writing strategies (such as appositives, word lists, and prompts), conferences with a teacher during brainstorming and editing, previewed expectations, and self-regulation strategies. (Ex. N-3-7; Tr. 44-45, 50-51).

Private School does informal and formal assessments of the students throughout the school year to track progress (Tr. 49) but none of the assessment results are in evidence, nor are any progress reports from the current school year. The assessment results collected also inform the student’s lesson plans. (Tr. 49-50). Parent believes Private School is an appropriate placement for the student. (Ex. M-4). She believes that he has made progress there this school year, including improvement in his attitude, decoding skills, writing, and math. (Ex. M-4). According to Division Director, the student has made progress this school year applying decoding skills as he reads, identifying open/closed/magic-e syllable types, identifying vowel patterns in unfamiliar words, sequencing events in texts, using learned strategies to create a mental image of what he reads, identifying key details in a text, comprehension, and answering questions based on a text. (Ex. N-5; Tr 44-45).^[24] In math, Division Director testified that the student has progressed in two-by-two-digit multiplication and multiplication patterns. (Ex. N-5-6).^[25] In writing, the student has improved in his ability to write more complex sentences and generalize sentence-level skills to paragraph writing. (Ex. N-6). Social-emotionally, the student is “learning to navigate being competitive with social grace.” (Ex. N-7). In SLT, the student “has made progress on his ability to identify an analogy type, to complete analogies appropriately,” to paraphrase, and to expand his written sentences. (Ex. O-2). Division Director believes that the Private School’s “small supportive environment” and “language immersive setting” are appropriate for the student. (Ex. N-8). She also believes that the program recommended in the 4/19/23 IEP was not appropriate because she has “concerns about the lack of 1:1 support and about the size of the 12-student class” and she feels strongly that the student “requires specific phonics instruction” and that “the writing goals [were] not specific to [his] language needs and that he requires more opportunities to conference with a teacher in a small group setting.” (Ex. N-7).

Additionally, Division Director expressed concern regarding the 4/19/23 IEP’s lack of SLT. (Ex. N-8). She testified that their evaluation of the student’s need for SLT was based on review of the Prior Neuropsych and their pathologist’s prior work with him. (Tr. 47-48, 52). The SL Pathologist also believe the student requires SLT “in the areas of vocabulary, organization, story retell, higher level thinking questions, and word retrieval.” (Ex. O-2).

LEGAL FRAMEWORK

IDEA

The IDEA provides that children with disabilities are entitled to a FAPE. 20 U.S.C. §1400(d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP. 34 C.F.R. §300.13. A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017). A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP. Id. The IEP must be reviewed at least annually [34 C.F.R. §300.324(b)(1)(i)], and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year [8 NYCRR §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010)]. For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2). Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011). A district fails to provide a FAPE if it assigns the student to a school that cannot implement the student’s IEP. T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 420 (2d Cir. 2009) (stating that school districts do not have ‘carte blanche’ to assign a child to a school that cannot satisfy the IEP’s requirements).

Rejecting the program recommendations of the Parent and/or private school personnel does not amount to predetermination or a denial of meaningful participation if the CSE’s recommendations are supported by information available to it. Application of a Student with a Disability, Appeal Nos. 23-077 (disagreement between parent and school regarding whether afterschool services should be on the IEP does not amount to predetermination); 23-073, citing E.H. v. Bd. of Educ. of Shenendehowa Cent. Sch. Dist., 361 Fed. App'x 156, 160 (2d Cir. 10/16/09); E.F. v. New York City Dep't of Educ., 2013 WL 4495676, at *17 (E.D.N.Y. 8/19/13); DiRocco v. Bd. of Educ. of Beacon City Sch. Dist., 2013 WL 25959, at *18-*20 (S.D.N.Y. 1/2/13); P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 (S.D.N.Y. 2008); Sch. For Language & Commc'n Dev. v. N.Y. State Dep't of Educ., 2006 WL 2792754, at *7 (E.D.N.Y. 9/26/06); Mr. P. v. W. Hartford Bd. of Educ., 885 F.3d 735, 753 (2d Cir. 2018); T.S. v. Ridgefield Bd. of Educ., 10 F.3d 87, 89-90 (2d Cir. 1993); Watson v. Kingston City Sch. Dist, 325 F. Supp. 2d 141, 145 (N.D.N.Y. 2004)(noting that even if a district relies on a privately obtained evaluation to determine a student's levels of functional performance, it need not adopt wholesale the ultimate recommendations made by the private evaluator), aff'd, 142 Fed. App'x 9 (2d Cir. 7/25/05). Once the district determines that the student can receive a FAPE in a public setting, it is not pretermination (or a procedural violation) to “decline to consider whether a more restrictive placement in a private school would provide more benefits to [the student].” G.B. v. New York City Dep’t of Educ., 145 F. Supp. 3d 230, 247-248 (S.D.N.Y. 2015).

The IDEA requires school districts to provide transportation “if that service is necessary for a disabled child ‘to benefit from special education,’ even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport.” Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir 1997) (citations omitted); accord Mr. P. v. West Hartford Bd. of Educ., 885 F.3d 735, 741 (2d Cir 2018)(related services include necessary transportation) citing 20 U.S.C. §1401(26)(A) and Bd. of Educ. v. Rowley, 458 U.S. 176, 188 (1982); see also 34 C.F.R. §300.34. Additionally, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs." NYS Educ. Law §4401(1)(emphasis added); §4402(4)(a); 8 N.Y.C.R.R. §200.1(ww); NYC Chancellor’s Regulation A-801(2)(I)(A) (“State Education Law mandates that the City School District provide transportation for special education children residing in New York City to and from the school they legally attend”).

Relief

Tuition Reimbursement/Funding

A board of education may be required to pay for educational services obtained unilaterally by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). These three conditions (“prongs”) constitute the Burlington/Carter test.

A unilateral placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)(“[Parents] 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.”). Educational progress can be a factor weighing in favor of the appropriateness of a unilateral placement. Frank G., 459 F.3d at 365. To qualify for reimbursement under the IDEA, parents need not show that the unilateral placement is perfect or that it meets all state educational standards. Id. at 364-65; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).

Under Burlington/Carter, if the parents are financially obligated to pay for the contracted services and have met their prong two burden, the contract must be fully reimbursed or directly funded by the district unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced. See Florence Cnty. Sch. Dist. Four et. al. v. Carter, 510 U.S. at 16 (“Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable”); J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) (“[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”).

Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47 (2009). In making that equitable determination, a hearing officer may consider many factors, including whether a parent’s unilateral withdrawal of the child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed themself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014). Independent Educational Evaluations (IEEs)

An IEE is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” 8 N.Y.C.R.R. §200.1(z). The IDEA and State and federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation. 20 U.S.C. §1415 (b)(1); 34 C.F.R. §300.502(b); 8 N.Y.C.R.R. §200.5(g)(1); D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d Cir. 2020)(“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted). Once the parent’s right to an IEE is triggered, upon request, the district must, without unnecessary delay, either: 1) file a due process complaint to request a hearing to show that its evaluation is appropriate [34 C.F.R. §300.502(b)(2)(i)]; or, 2) ensure that an IEE is provided at public expense, unless they demonstrate in a hearing that the evaluation obtained by the parent did not meet the district's criteria [34 C.F.R. §300.502(b)(2)(ii)]. See also 8 N.Y.C.R.R. §200.5(g)(iv). The IDEA provides no timeline by when the district must respond to the parent’s IEE request, but guidance indicates “without undue delay and in a manner that does not interfere with the student’s right to FAPE. Letter to Anonymous, 23 IDELR 719 (OSEP 1995).

Burdens

In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking tuition reimbursement for a unilateral parental placement has the burdens of persuasion and production on the appropriateness of such placement. NYS Educ. Law §4404(1)(c). Parents have the burden of proof for all 504 claims. See, e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990).

ANALYSIS AND CONCLUSIONS OF LAW

Prong 1

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden at the hearing. The DOE presented no evidence or witnesses to dispute the Parent’s claims, nor did they make any opening or closing statements. Furthermore, the DOE presented no cogent or responsive explanation for the decisions made in the IEP, such as whether the Parent’s input was considered. Moreover, the DOE has not offered any evidence to show that the proposed school location was actually capable of implementing the student’s IEP. For these reasons, the DOE cannot sustain its burden and I find that they failed to offer the student a FAPE for the 2023-24 school year.

Prong 2

I find that Parent has met their burden in proving that the Private School offers an educational program which meets the student’s needs under Prong II of the Burlington/Carter standard. Here, the weight of the evidence establishes that the student’s individual special education needs are addressed by the Private School and that the instruction offered is "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364. The DOE has made no argument challenging the appropriateness of the unilateral placement. Moreover, I find that the Parent’s witnesses were credible, that the student’s program is being offered by appropriately qualified individuals, and that the student has made progress at the Private School. Although it would have been better to have objective evidence of progress in the record, such as assessment results, there is sufficient subjective evidence of progress, and progress itself is only one factor in determining the appropriateness of the program.

Prong 3

The equities here favor the Parent. Parent has been fully cooperative with the DOE. They timely notified the DOE of their disagreement with the evaluation. They participated in the CSE meeting. Additionally, Parent provided the necessary Ten-Day Notice of their concerns with the DOE’s failure to offer a FAPE for the 2023-24 school year and supplemented that notice after they had an opportunity to tour the recommended placement. The record contains evidence of the Parent’s financial obligation to pay the private school tuition in full. Here, the DOE has not alleged that the Private School tuition is excessive or that the enrollment contract was fraudulent in any way. Furthermore, the DOE has made no allegations of any actions on the part of the Parent that would weigh against them in terms of the equities. Accordingly, equity demands that the DOE fund the student’s Private School tuition in full for the 2023-24 school year, in the amount of $79,895. The $100 that Parent already paid should be reimbursed, and the balance paid directly to the school (less any amount paid in pendency), upon receipt of invoices and attendance records.

Other Relief

As for transportation, there is no question that the student is entitled to transportation. He should have been receiving it the entire school year since the Private School is his pendency placement and Parent requested transportation in their Ten-Day Notice. Going forward, the DOE must provide transportation to and from the Private School for the remainder of the 2023-24 school year.

As for the IEE request, I find that the student is entitled to the requested publicly funded neuropsychological evaluation. Here, the Parent has disagreed with a specific DOE evaluation, and previously notified the DOE of their disagreement and request for an IEE. The district failed to respond appropriately by either granting the IEE or initiating due process proceedings. Furthermore, they have made no effort to defend their evaluation at this hearing. Accordingly, the DOE must fund the requested IEE at a rate of up to $6,000.

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

ORDER

Based upon the above Findings of Fact and Conclusions of Law:

1. IT IS HEREBY ORDERED that Parent’s claim for tuition funding for the student's unilateral placement at the Private School is GRANTED for the 2023-24 10-month school year as follows:

The New York City Department of Education shall reimburse the Parent $100 and then pay the balance of the yearly tuition (up to a total of $79,895, less any paid in pendency) directly to the Private School, upon receipt of corresponding invoices and attendance records; it is further 2. ORDERED that the New York City Department of Education shall, within 10 days of the date of this order, implement transportation for the student to travel to and from the Private School for the remainder of the 2023-24 school year; it is further 3. ORDERED that the New York City Department of Education shall directly fund an independent neuropsychological evaluation, by an appropriately qualified provider of the Parent’s choosing, upon receipt of the provider’s invoice (in an amount not to exceed $6,000).

SO ORDERED.

DATED: December 15, 2023 Leah Martin, Esq. (Signed Electronically)_

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.

APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD

DOE’S EXHIBITS

- - - -

PARENT EXHIBITS

A. DPC 9/7/23 5 pages

B. Email to CSE 3/6/23 1 page

C. Letter to CSE with Email Confirmation 8/23/23 5 pages

D. Letter to CSE with Email Confirmation 9/20/23 5 pages

E. Program Description 2023-24 1 page

F. Student Class Schedule 2023-24 1 page

G. End of Year Report 6/14/23 27 pages

H. End of Year SLT Report 2022-23 2 pages

I. Enrollment Contract 8/30/23 8 pages

J. Tuition Affidavit 10/23/23 1 page

K. Proof of Payment 8/31/23 2 pages

L. US Tax Return 2022 4 pages

M. Direct Testimony Affidavit of Parent 11/29/23 4 pages

N. Direct Testimony Affidavit of Division Director 11/30/23 8 pages

O. Direct Testimony Affidavit of SL Pathologist 12/4/23 2 pages

IHO’S EXHIBITS

- - - -

Footnotes

[2] Exhibits shall be referred to as follows: Ex. followed by lettered designations for Parent Exhibits, numbered designations for DOE’s Exhibits, and lower-case roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parent Exhibit A, page 1, will be referred to as (Ex. A-1).

[3] She has a master’s degree in Childhood General and Special Education and prior to her current role as director of the Private School’s intermediate division, she was a teacher there for ten years. (Ex. N-1). She is familiar with the student – she has observed him in class, regularly meets with his teaching team, and sees him in the hallways daily. (Ex. N-3; Tr. 37).

[4] DOE Representative had no questions for SL Pathologist, so she testified by affidavit only (Ex. O). (Tr. 53). SL Pathologist has a Master of Science in Communication Science and has been a speech language pathologist since 2010. (Ex. O-1). She is the student’s current speech language pathologist. (Ex. O-1).

[5] The New York City Department of Education delegated to OATH the authority to adjudicate due process complaints under Section 504. NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab- Act-504-delegation-Signed.pdf.

[6] The 4/19/23 IEP is not in evidence. It is unclear whether this is the first time that a 12:1 class has been offered. The only previous recommendation specified in the DPC that was found inappropriate by an FOFD was an integrated co-teaching (“ICT”) class. (Ex. A-3). Parent attended the April 19th meeting. (Ex. M-2-3).

[8] Parent Counsel agreed that these are the relevant allegations at the November 3rd SC. (SC Transcript 11.3.23).

[9] Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing. Application of a Student with a Disability, Appeal No. 09-141; Application of the Dep't of Educ., Appeal No. 08-056. Under the IDEA and its implementing regulations, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees. 20 U.S.C. §1415(f)(3)(B); 34 C.F.R. §§300.508(d)(3)(i), 300.511(d); 8 N.Y.C.R.R. §§200.5(i)(7)(i)(a); (j)(1)(ii); R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 187-88 n.4 (2d Cir. 2012)(“To permit [the parents] to add a new claim after the resolution period has expired would allow them to sandbag the school district"). Here, the DOE did not consent to expand the issues, nor did they open the door at the DPH. Although irrelevant to this decision, it is interesting to note that the Parent’s Ten-Day Notice did not mention the removal of SLT either. (Ex. C).

[15] They use the Singapore Math program, which works on generalizing from the concrete, to the pictural, to the abstract using manipulatives. (Ex. N-5).

[16] For writing, Private School uses the Hochman Method, which focuses on expanding a sentence and incorporating detail, and the student’s writing class also uses Thinking Maps to help them visualize writing skills and expand ideas during brainstorming. (Ex. N-6).

[17] His reading class uses Orton-Gillingham to focus on fluency and decoding. (Ex. N-4). In reading, the student is working on breaking down syllables, using his phonemic knowledge, and “reviewing open and closed syllables, magic-e words, decoding unfamiliar words, [and] VCCV words.” (Ex. N-4). He is also beginning a reading fluency program called Great Leaps three to four times per week, which is 1:1 instruction for ten minutes per session. (Ex. N-4-5). For reading comprehension, the student uses the Visualizing and Verbalizing program, which asks the students to answer structured questions in order to develop a complete image of each sentence they have read. (Ex. N-5).

[19] This is provided three to four times per month and utilizes the “Mood Meters, which helps students recognize, understand, label, express, and regulate their emotions.” (Ex. N-7).

[21] The head teacher is the same as his homeroom teacher. (Ex. N-4).

[22] The head teacher is the same as his homeroom teacher. (Ex. N-6).

[23] The push-in SLT is a service provided to all Private School students, but only students with a particular need receive pull-out sessions. (Tr. 48).

[24] However, he is still below grade level in reading. (Tr. 44-45).

[25] However, he is still below grade level in math. (Tr. 45-46).