Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 257437

Student’s Name: STUDENT

School District: SCHOOL DISTRICT

Impartial Hearing Officer: Michele Host

Date of Filing: September 7, 2023

Hearing Requested by: PARENTS

Dates of Hearing: December 6, 2023

Record Close Date: December 27, 2023

Date of Decision: December 27, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 6, 2023:

For the Student:

REDACTED (Parents’ Counsel)

REDACTED (Father)

REDACTED (Head of Teaching and Learning)

For the District:

REDACTED (DOE Counsel)

INTRODUCTION AND PROCEDURAL HISTORY

This matter concerns the Student, a student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). The Student’s eligibility for special education supports and services is not in dispute.

This matter comes before me on the Parents’ due process complaint, filed on or about September 7, 2023, concerning the 2023-2024 school year. In the Parents’ due process complaint, the Parents allege that the DOE failed to provide the Student with a free and appropriate public education (“FAPE”) for the 2023-2024 school year in multiple respects, including by holding a procedurally flawed Committee on Special Education (“CSE”) meeting and by developing an inappropriate Individualized Education Program (“IEP”) for the Student.

As relief, the Parents seek tuition reimbursement for Student’s attendance at a private school (“Private School”), a private program that is not approved by the Commissioner of Education for the education of students with disabilities, for the 2023-2024 school year.

I was appointed to this matter on September 15, 2023, and I held a pre-hearing conference on October 26, 2023, as well as a status conference on November 21, 2023.

On October 4, 2023, the DOE issued a pendency implementation form in this matter. On November 6, 2023, the DOE issued an amended pendency implementation form.

The impartial hearing took place on December 6, 2023. The DOE offered proposed exhibits 1 through 3, and Parents’ Counsel objected to proposed exhibit 3. (Tr. 21-22) I overruled Parents’ Counsel’s objection and entered DOE’s exhibits 1 through 3 into evidence. (Tr. 22) I then entered the Parents’ exhibits A through E and G through T into evidence without objection, marking proposed exhibit F for identification only.^[1] (Tr. 23-27) The DOE waived its opening statement; Parents’ Counsel made an opening statement. The DOE rested without calling any witnesses. (Tr. 29) Parent’s Counsel called the Student’s father (“Father”) to testify to the truth of his affidavit, which I then entered into evidence as Parents’ exhibit F. (Tr. 32) The DOE did not cross-examine the Father; I asked the Father a clarifying question. DOE Counsel then cross-examined the Head of Teaching and Learning at the Private School (“Head of Teaching and Learning”), whose affidavit is in evidence as Parents’ exhibit K. (Tr. 36-48) Parents’ Counsel asked several questions of the Head of Teaching and Learning on redirect. (Tr. 48-51) The Private School’s Learning Specialist (“Learning Specialist”) and the Student’s uncle (“Uncle”) also testified via affidavit; the DOE did not cross-examine the Learning Specialist or the Uncle. The Parents rested, and both parties made closing arguments. (Tr. 51-58)

The record in this case closed on December 27, 2023. A list of the documentary evidence in this proceeding is appended to this decision.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law Art 89 § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. Part 200.

FINDINGS OF FACT

After considering all the evidence, as well as the closing arguments of both parties, my findings of fact are as follows:

The Student is classified by the DOE as a Student with Other Health Impairment. (D-1, p. 1) The Student has been diagnosed with learning disabilities in reading and writing, an REDACTED disorder, and REDACTED (a developmental delay that results in REDACTED incidents). (P-F, ¶¶ 7-9)

A Psychoeducational Evaluation conducted of the Student in May of 2022 featuring a variety of assessments, including the Wechsler Intelligence Scale for Children – Fifth Edition, diagnosed the Student with a Specific Learning Disorder with impairment in reading and written expression. (P-C) The evaluation also found that the Student demonstrated an Unspecified Anxiety Disorder and displayed symptoms of Attention Deficit Hyperactivity Disorder, Combined Presentation. (P-C, p. 15)

The Psychoeducational Evaluation states that the Student “continues to require placement in a small very nurturing school with very small classes and high staff to student ratio.” (P-C, p. 15) The evaluation emphasizes that it is important for the Student to continue to receive one-on-one therapies, and notes that “in no instance would [the Student] be able to function in a large classroom, even an ICT class with two teachers and pull-out and push-in services in a large general education school.” (P-C, p. 6) The evaluation also states that it is “extremely important” for the Student to “continue to receive help with interacting in an appropriate manner with typically developing peers in the classroom on a daily basis.” (P-C)

A CSE convened and held an IEP meeting for the Student on March 24, 2023. (D-1; P-F, ¶ 11) The IEP recommends a placement for the Student in a DOE Non-Specialized School, with Special Educational Teacher Support Services (“SETSS”) five times per week in the Student’s core subjects. The IEP recommends that the Student be placed in a 12:1 special class for ELA, Math, Social Studies, and Sciences, and receive counseling once a week, individually, for 30 minutes and once a week in a group of 3 for 30 minutes; occupational therapy (“OT”) 3 times a week for 30 minutes, individually; speech-language therapy (“SLT”) 2 times per week, individually, for 30 minutes, and once a week, in a group of 3, for 30 minutes. The IEP also recommends that the Parents receive parent counseling and training once a month for 60 minutes. Notably, although the IEP generated during the meeting refers to the May 2022 Psychoeducational Evaluation, the Prior Written Notice generated on April 10, 2023, does not list the Psychoeducational Evaluation as one of the evaluations used by the IEP team to make its decision regarding the Student’s recommended placement. (D-2, p. 2) The Prior Written Notice states that the CSE relied upon a social history and classroom observations from 2019, as well as “Reports” dated March 23, 2023. (Id.)

In the IEP’s description of the Student’s academic achievement, the IEP cites reports from the Private School stating that the Student had “made progress in all domains.” (D-1, p. 2) The IEP quotes verbatim from the Private School’s reports, listing the Student’s areas of strength and areas of emergent skill. The IEP includes language from the Student’s Private School SLT provider stating that the Student’s progress was significant over the past trimester but the Student did “continue to lag behind chronological age-level expectations in several areas.” (D-1, p. 6) The IEP notes that the Student continued to present with REDACTED. (D-1, p. 10) The IEP also contains an extremely long list of management needs, with no explanation of how the recommended placement would provide them. (D-1, pp. 10-12)

On April 10, 2023, the DOE issued a school location letter for the Student, which named a proposed public school placement for the Student’s 2023-2024 school year. (D-3)

On April 26, 2023, the Parents signed a Re-Enrollment Contract with the Private School for the 2023-2024 school year. (P-Q) The Re-Enrollment Contract obligated the Parents to pay $103,500.00 in tuition to the Private School, although the Re-Enrollment Contract noted that the Parents would be released from their obligation if the Student enrolled in a class in a school recommended by the DOE by September 8, 2023. (Id., p. 1) The Parents provided a certification from the Private School’s business manager stating that the Parents have paid the Student’s 2023-2024 tuition in full. (P-R)

The Father testified that a visit to the proposed public school placement raised concerns that the proposed public school placement would not meet the Student’s needs. (P-F, ¶ 12) Specifically, the proposed public school placement would potentially have “less structured classrooms, potential removal of essential services, noise-related dysregulation, and grouping with students displaying conduct disorders.” (P-F, ¶ 12) The Father testified that “[t]hese concerns were communicated to the CSE.” (Id., ¶ 13)

On August 15, 2023, the Parents sent a ten-day notice letter to the DOE. (P-B) The Parents discussed the March 24, 2023 IEP meeting and their disagreements with the recommended placement, as well as their tour of the proposed public school placement. (P-B, p. 2) The Parents noted that during their tour, the school psychologist informed the Parents that a 12:1 placement was not offered at the proposed public school placement, so the Student’s IEP could not be implemented there. (Id.) The Parents wrote that since the DOE did not provide the Student with an appropriate placement, they would unilaterally place the Student at the Private School for the 2023-2024 school year. (Id.)

The Private School is an ungraded independent school with early childhood, elementary, and middle school programs for children between the ages of two and thirteen years old. (P-K, ¶ 4) There are about 100 children enrolled in the school. (P-K, ¶ 4) The Private School holds parent-teacher conferences and meetings throughout the year regarding students’ progress and development. (P-G, p. 3) For the 2023-2024 school year, the Student is placed in a class of 13 students with two teachers. (P-K, ¶ 18) The Student receives OT twice a week for 45 minutes, SLT twice a week for 45 minutes, and counseling once a week for 45 minutes. (P-I; L, ¶ 6) The Learning Specialist also works with the Student twice a week in the classroom (push-in) and in the Private School’s therapy room (pull-out). (P-L, ¶ 5; K, ¶ 17) The Learning Specialist consults with the Student’s teachers and therapists weekly to discuss the Student’s educational, social, and physical needs. (P-L, ¶ 7)

An Evaluation of Visual Skills was conducted of the Student on October 18, 2023, and found that the Student has poor ocular motor skill development and “experiences significant visual skills deficits that are impacting [the Student’s] ability to learn, especially in reading and writing.” (P-D, pp. 1-2) The optometrist who conducted the evaluation recommended that the Student begin vision therapy. (Id., p. 2) The Learning Specialist testified that the Private School has implemented visual exercises recommended by the optometrist into the Student’s educational program. (P-L, ¶ 12; K, ¶ 17) The Learning Specialist testified that the Student has done the visual exercises three times a week, and since incorporating the exercises into the Student’s school day, “we have seen an increase in [the Student’s] ability to visually track while reading aloud and respond to visual cues more confidently. We have also noted that [the Student] can read more extended periods more accurately and without fatigue.” (P-L, ¶ 12)

The Parents also provided a letter dated November 13, 2023 from a licensed clinical social worker who has been treating the Student since February of 2020. (P-E) The LCSW, who meets with the Student weekly for psychotherapy, has diagnosed the Student with Anxiety Disorder, Unspecified. (Id., p. 1) In her letter, the LCSW wrote that the Student has difficulty reading social cues and responding appropriately in social situations. (Id., p. 2) The Student struggles with impulse control, “can be restless and often moves quickly and trips and bumps into things.” (Id.) The LCSW wrote that the Student is working on controlling the Student’s frustrations and impulses, and that the LCSW and the Student are working on “stop and think strategies in order to process and problem-solve to make choices that are safe and promote [the Student’s] and others’ well-being.” (Id., p. 3)

CONCLUSIONS OF LAW AND ANALYSIS

The IDEA establishes a “substantive right to a ‘free appropriate public education’” for children with disabilities. Endrew F. v. Douglas Co. School Dist, 137 S. Ct. 988, 993 (2017) (quoting Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982)). The IDEA directs that, in general, an IHO’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). Under the IDEA and New York law, where there is a procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE. See 20 U.S.C. § 1415 (f)(3)(E)(ii); 8 N.Y.C.R.R. § 200.5(j)(4)(ii).

A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). “Not every procedural error will render an IEP legally inadequate.” M.H. v. New York City Dep’t of Educ., 685 F. 3d 217, 245 (2d Cir. 2012) (citation omitted). If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).

In general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. School districts are not required to “maximize” the potential of students with disabilities, but must provide “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.

Throughout the hearing process, a school district bears the burden to show that it (1) complied with the IDEA’s procedural requirements; and (2) designed an IEP reasonably calculated to confer educational benefit on the student. C.B. ex rel W.B. v. N.Y. City Dep’t of Educ., 2005 U.S. Dist. LEXIS 15215, *37 (E.D.N.Y. June 10, 2005); 20 U.S.C. § 1415(i)(2)(C)(iii); see also Walczak, 142 F.3d 119. However, “a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” N.Y. Educ. § 4404(1)(c).

Under the three-prong test established by the Supreme Court in Sch. Comm. of Burlington, Mass, v. Dep’t of Educ. of Mass, 471 U.S. 359 (1985) and Florence County. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), parents who unilaterally place their children in private school are entitled to reimbursement from the school district if the services offered by the school district were inadequate or inappropriate, the services selected by the parent(s) were appropriate, and equitable considerations support the parent’s claim. See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert. denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 U.S. LEXIS 11520 (Oct. 15, 2007). The first prong of the Burlington-Carter test encompasses whether the student’s IEP provided a FAPE. Brock v. Dutton, 2015 U.S. Dist. LEXIS 44254, *14 (S.D.N.Y. March 31, 2015).

The Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007) (quoting Frank G. v. Bd. of Educ., 459 F.3d at 364-65). The private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.” Frank G. v. Bd. of Educ., 459 F.3d at 364.

The final prong of the Burlington-Carter test involves the balancing of the equities. 20 U.S.C. § 1412(a)(10)(C)(iii). Reimbursement may be limited or denied if the parents failed to act reasonably, did not cooperate with the DOE’s attempts to evaluate the student, or failed to provide proper notice of the parents’ rejection of the Student’s placement. See 20 U.S.C. § 1412(a)(10)(C)(iii). When considering whether the parents have shown that the equities weigh in the parents’ favor, it is important to consider “whether the [parents] cooperated with the district in its efforts to meet its obligations under the IDEA.” C.L v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014). Burlington-Carter Test Prong I

As to Prong I of the Burlington-Carter test, the DOE failed to meet its burden at hearing. The Supreme Court has found a reviewing court may expect school district staff “to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S.Ct. 988, 1002 (2017). In this case, the DOE entered three documents into the record but made no opening statement and called no witnesses to explain its decision-making process.

Moreover, the weight of the evidence in this matter supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer the Student a FAPE for the 2023-2024 school year. Although the Student’s May 2022 Psychoeducational Evaluation is listed as an evaluation considered by the CSE team on the IEP, it is not referred to on the Prior Written Notice and there is no evidence that the CSE grappled with the Psychoeducational Evaluation’s recommendation that the Student be placed in a “small very nurturing school with very small classes and high staff to student ratio” with “very individuallydirected” therapies integrated into the classroom setting on a daily basis. (D-1; 2; P-C, pp. 15-16)

When evidence is presented regarding the appropriate methodology for a student, the DOE’s failure to consider that evidence is a “more than an error in the analysis of proper educational methodology. It is a failure to consider highly significant evidence in the record.” See M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 252. By ignoring the Psychoeducational Evaluation’s recommendation that the Student be placed in a small classroom in a small school with one-on-one therapeutic services “incorporated into the daily routines of the classroom” (P-C, p. 16), the CSE created an inadequate IEP that ignored “the unique circumstances of the child for whom it was created.” Endrew F., 137 S.Ct. at 1001. Therefore, I cannot find that the DOE offered the Student a FAPE for the 2023-2024 school year. Burlington-Carter Test Prong II: The Appropriateness of the Parents’ Unilateral Placement

A unilateral private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. The relevant standard to apply is whether “the unilateral private placement . . . provides educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo, 489 F.3d at 115 (quotations omitted). No single factor is dispositive in this analysis. Id. The private placement does not necessarily need to provide certified special education teachers or every special service that could assist in maximizing the Student’s potential. Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 2020 U.S. Dist. LEXIS 16007 (S.D.N.Y. 2020), aff’d 2020 U.S. App. LEXIS 39739 (2d Cir. 2020) (citation omitted). Moreover, parental placements are not subject to the same mainstreaming requirements as a school district placement. Frank G. v. Bd. of Educ., 459 F. 3d at 364.

In this case, the Parents submitted the Psychoeducational Evaluation, Evaluation of Visual Skills, Therapist’s Letter, Private School Program Description, Private School Program Description, and multiple other documents from the Private School, including but not limited to a Student Individualized Plan dated October 18, 2023, and reports from the Student’s teachers and SLT and OT providers. (P-C; D; E; G; H; I; J; M; N; O; P). The Parents also submitted the testimony of the Father, the Head of Teaching, and the Learning Specialist. (P-K; L)

The Student Individualized Plan prepared by the Private School on October 18, 2023, contains goals for the Student to achieve in Reading & Writing; Math; and Social & Emotional Learning. (P-M) Each goal has a matching list of supports, as well as a teaching plan. For example, for Reading & Writing, the plan lists five goals for the Student to work on in fluency and pacing in decoding and reding; discussion; phonics; asking for clarification; and OrtonGillingham fluency (e.g., fluency in certain vowel and consonant sounds). (P-M, p. 1) The plan then describes how the Private School will help the Student reach the identified goals. Specifically, the plan states that the Student will:

• Work one-on-one with a teacher for 20 minutes daily on reading and writing; • Work on reading, discussing, and charting short stories in a small group; • Create a beginning, middle, and end to the Student’s written work; and • Use a graphic organizer to plan written assignments (with the support of a teacher). (P-M, p. 1)

The plan also states that “new concepts and curricula that have been presented to the group will be summarized again to [the Student] individually.” (P-M, p. 1)

The Parents also presented CEP Teacher Reports prepared by the Private School from Spring 2023 and Fall 2023. (P-N) The Teacher Reports list the Student’s areas of strength and areas of emergent skill in Foundations of Reading and Writing; Foundations in Math; Communication; Self-Regulation and Organization; and Social/Emotional. (Id.) When the two reports are compared, they show that the Student is making educational progress at the Private School. For example, the Spring 2023 Teacher Report states that in Foundations of Math, the Student’s skill was “emerging” in “continuing to develop skills of writing double-digit numbers in place value order.” (P-N, p. 3) In the Fall 2023 report, “Expansion of [the Student’s] understanding of the base-ten system – Counting in fives, tens, and multiples of hundreds tens and ones” is listed as a strength. (P-N, p. 7)

The Parents provided Spring 2023 and Fall 2023 reports from the Student’s SLT and OT providers at the Private School. (P-O; P) The reports show that the Student’s SLT and OT providers created detailed speech-language and occupational therapy goals for the Student, and that the Student is making progress in producing the /l/ sound in all positions of words, initiating conversational exchanges, endurance, and willingness to work on challenging activities. (Id.)

The Father testified that the support provided in the Private School’s small, nurturing school environment has helped to reduce the Student’s REDACTED and allowed the Student to “navigate some conflict resolution around peers.” (Tr. 33) The Father testified that the Private School has also helped the Student with emotional challenges, in that the Student’s bouts of crying in the classroom have diminished. Educationally, the Father testified that the Student has “had support in getting to sort of work with [the Student’s] significant learning disabilities around reading, writing, verbal expression, written expression,” and has shown improvement in verbal articulation. (Tr. 34)

The Head of Teaching testified generally about the Private School’s educational program for the Student, and she emphasized that the Student’s placement at the Private School provides the Student with “ongoing service coordination, differentiated instruction, and individualized support.” (P-K, ¶ 20) She testified that the Student is “making meaningful academic, social, and emotional progress and has learned tools and strategies for increased organization and selfregulation.” (P-K, ¶ 20)

The Learning Specialist testified about the academic supports that the Private School provides the Student to facilitate the Student’s access to the Student’s education, namely, “scaffolding, prompting, chunking of information, pre-teaching and post-teaching, redirection, refocusing, and visual aids.” (P-L, ¶ 13) As noted above, the Private School has also incorporated visual exercises recommended by an optometrist into the Student’s educational program.

The Learning Specialist testified in detail about academic progress the Student has made in reading, handwriting, speaking, and math. (P-L) In reading, at the beginning of the 2023-2024 school year, the Student “did not have a solid understanding of digraphs or sound blending. The Student’s phonological skills have improved and with support, the Student can now read books for emergent readers.” (P-L, ¶ 14) The Student’s handwriting has improved “significantly,” and in speaking, the Student “can generate, expand, and organize [the Student’s] thoughts with increasing independence.” (P-L, ¶ 16) The Learning Specialist testified that the Student’s understanding of social cues and how to navigate peer conflicts has also improved. (PL, ¶¶ 16, 21) Regarding math, the Learning Specialist testified that the Student is now working on skills that are approaching grade level. The Learning Specialist testified that while in September, the Student could not understand place value, estimations, or working with money, now the Student can “compare the tens place with 2-digit numbers, count backward and forwards with multi-digit numbers, and add and subtract coin currency.” (P-L, ¶ 17)

As noted earlier, the DOE did not object to the Parents’ evidence being entered into the record, including the sworn testimony of the Parents’ witnesses. There is nothing in the record that would undermine or controvert the testimony given by the Parents’ witnesses. I therefore credit the Parents’ witnesses’ testimony in full.

The DOE argued that the Parents have not met their Prong II burden because the “evidence and testimony is clear that the Student is not receiving the mandated related services. Specifically, the Student’s IEP recommends counseling, individualized and in group. And occupational therapy, individualized, and in group. The evidence is clear that the unilateral placement does not offer the Student the recommended mandated services to address the Student’s area of deficit.” (Tr. 52-53) “Parents bear a lower burden to demonstrate the appropriateness of a private placement than school districts do to demonstrate the provision of a FAPE.” T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016). The March 24, 2023 IEP recommended that the Student receive SETSS five times per week in the Student’s core subjects; counseling once a week, individually, for 30 minutes and once a week in a group of 3 for 30 minutes; OT 3 times a week for 30 minutes, individually; speech-language therapy (“SLT”) 2 times per week, individually, for 30 minutes, and once a week, in a group of 3, for 30 minutes. (D-1, pp. 28-29) The Private School is providing the Student with OT twice a week for 45 minutes on a pull-out basis, SLT twice a week for 45 minutes, and counseling once a week for 45 minutes. (P-I; L, ¶ 6) The Learning Specialist also works with the Student twice a week in the classroom and once a week in the Private School’s therapy room, and the Student receives one-on-one assistance from a teacher with reading and writing once a day for 20 minutes. (P-L, ¶ 5; M; K, ¶ 17) In addition, the Student receives the visual exercises recommended by the optometrist, and weekly psychotherapy outside of school. (P-L, ¶ 12; E) To the extent that the related services provided by the Private School differ from the recommendations contained in the IEP, the differences are relatively minor. The major difference is the absence of group speech and counseling sessions (although the Student is receiving the same amount of minutes of SLT recommended by the IEP). Given that under Frank G., the test for the Parents’ private placement is not perfection, and there is ample information in the record about the emotional, behavioral, and speech progress the Student has made at the Private School, the DOE’s argument here is not persuasive. Frank G., 459 F.3d at 365 (citing M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105.^[2] I find that the Parents have met their burden to prove that the private program offers an educational program that meets the Student’s needs under Prong Two of the Burlington/Carter standard. The Private School clearly designed individualized goals for the Student, as well as instruction tailored to the Student’s educational needs. Not only does the Private School provide the Student with significant one-on-one instruction and individualized scaffolding, the Private School has incorporated visual exercises recommended by the optometrist who evaluated the Student’s vision into the Student’s curriculum. (P-D; L, ¶ 12) When a teacher at the unilateral placement adapts instruction (for example, working one-on-one with the student, creating a communications book, giving the student extra time to complete work, allowing the student to work in isolated areas of the classroom, adapting tests to allow the student to take them orally), these factors weigh in favor of the appropriateness of the parent’s unilateral placement. Frank G., 459 F.3d at 365-66. In this matter, the weight of the evidence establishes that the Student’s individual special education needs are being addressed by the Private School and that the instruction offered is “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364. Burlington-Carter Test Prong III: Equitable Factors Equitable factors are relevant to fashioning relief under the IDEA. Burlington, 471 U.S. at 374; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 (2d Cir., 2014); M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000) (citations omitted); see also Carter, 510 U.S. at 16 (“Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable”). Reimbursement of private school tuition may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 300.148(d); see S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 U.S. Dist. LEXIS 11354 (S.D.N.Y. Feb. 4, 2008); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 (S.D.N.Y. 2005).

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, “that they were rejecting the placement proposed by the public agency to provide [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” 20 U.S.C. § 1412(a)(10)(C)(iii)(I); see 34 C.F.R. § 300.148(d)(1). This statutory requirement “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools.” Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004).

In this case, the record does not establish that the Parents “acted with the requisite level of unreasonableness or misconduct that reimbursement should be denied on equitable grounds.” Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ., 550 F. Supp 2d 420, 437 (S.D.N.Y. 2008). There is nothing in the hearing record to suggest, let alone demonstrate, that the Parents interfered in any manner with the CSE’s evaluation of the Student or prevented it from providing the Student with a FAPE for the 2023-2024 school year. The Parents attended the IEP meeting and visited the proposed public school placement. (D-1, p. 36; P-F) Furthermore, the DOE has raised no argument that the equities would not weigh in favor of the Parents. The record supports a finding that the Parents cooperated fully with the DOE and timely sent the requisite ten-day notice to the DOE in advance of the commencement of the 2023-2024 school year. (D-1; P-B)

In addition, the record clearly establishes that the Parents incurred an obligation to pay the Private School the aggregate tuition sum of $103,500.00, which they have paid using funds that they borrowed from the Student’s REDACTED. (P-Q; R; S; T) Given my finding that the Private School is the appropriate placement for the Student, the Student is entitled to an award for tuition reimbursement for the Student’s attendance at the Private School for the 2023-2024 school year, to be paid directly to the Parents. See Burlington, 471 U.S. at 370-71. While the amount of tuition at the Private School is not insignificant, I do not find that the tuition costs are excessive or unreasonable, given the Private School’s educational program for the Student. Carter, 510 U.S. 7, 15-16. After considering the entire record presented at hearing, I find that the equities support the Parents’ claim for tuition reimbursement.

OTHER RELIEF SOUGHT

In addition to tuition reimbursement for the Student’s attendance at the Private School, the Parents seek additional relief that I will discuss below. Attorneys’ Fees

The Parents also requested attorneys’ fees and expenses in the Parents’ due process complaint. (P-A, p. 11) The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction. 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006). Only a court can determine if a party is entitled to attorneys’ fees and I would be exceeding the scope of my authority by determining that the Parents are the prevailing party entitled to costs. Therefore, to the extent that the Parents are seeking reimbursement and/or payment of attorneys’ fees and costs, the Parents’ request is denied.

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

ORDER

Based above the above findings of fact, it is hereby:

1. ORDERED, that the DOE shall reimburse the Parents for the Student’s 2023-2024 tuition at the Private School in the amount of $103,500.00, minus any amounts already paid pursuant to pendency, within 35 days of this order.

SO ORDERED.

DATED: December 27, 2023

Michele Host (signed electronically)

Impartial Hearing Officer

Michele Host

NOTICE OF RIGHT TO APPEAL

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

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

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

APPENDIX A – ADMITTED EXHIBITS

DISTRICT’S EVIDENCE

1. Individualized Education Program 3/24/2023 36 pages DOE

2. Prior Written Notice 4/10/2023 4 pages DOE

3. School Location Letter PARENTS’ EVIDENCE 4/10/2023 2 pages DOE

A. Exhibit Date Title Pages 09-07-2023 Impartial Hearing Request 7 pages

B. 08-15-2023 Parent 10 Day Notice letter to CSE 19 2 pages

C. Psychoeducational Report: May 2022 20 pages

D. 10-18-2023 Evaluation of Visual Skills: 2 pages

E. 11-13-2023 Treating Therapist Letter: 4 pages

F. Father’s Affidavit 11-2023 2 pages

G. Private School-Program Description 2023-2024 4 pages

H. Private School Calendar of Openings and Closings 2023-2024 1 page

I. Private School Student Schedule (8’s and 9’s) 2033-2024 1 page

J. 09-07- Private School Student Attendance 2023-09-29-2023 1 page

K. 11-27-2023 Private School Witness Affidavit: Head of Teaching and Learning 4 pages

L. 11-27-2023 Private School Witness Affidavit: Learning Specialist 5 pages

M. 10-18-2023 Private School: Student Individualized Plan 3 pages

N. Private School CEP Teacher Reports: 10-18-2023 Spring 2023 & Fall 2023 03-2023 9 pages

O. Private School Speech/Language Reports: 11-08-2023 Spring 2023 & Fall 2023 04-2023 4 pages

P. 04-23-2023 Private School Occupational Therapist Reports: 11-08-2023 Spring 2023 & Fall 2023 4 pages

Q. 04-26-2023 Private School 2023-2024 Enrollment Contract 3 pages

R. 10-03-2023 Private School Affidavit-Payments & Attendance: Business Manager 1 page

S. 04-28-2023 Affidavit of Loan to Parents: REDACTED 2 pages

T. 03-27-2023 Proof of Payment in Full IMPARTIAL HEARING OFFICER’S EVIDENCE NONE 2 pages

Footnotes

[1] The DOE’s exhibits are cited as “D” followed by a number, the Parents’ exhibits are cited as “P” followed by a letter, and the transcript is cited by “Tr.” followed by a page number.

[2] It is also worth noting that the DOE relied on reports from the Private School in designing the IEP. (D-1; 2) When the DOE relies on information from the unilateral placement in formulating the IEP, this can weigh in favor of the appropriateness of the parents’ unilateral placement. C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 82 (2d Cir. 2014).