Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 258367

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 10/17/2023

11/01/2023 Pendency Hearing

11/15/2023

12/15/2023

Actual Record Close Date: 12/19/2023

Decision Date: 12/20/2023

Hearing Officer: Daniel Ajello Esq.

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

(All present by video or telephone)

For the Student:

[REDACTED]., Attorney

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 11/01/2023

(All present by video or telephone)

For the Student:

[REDACTED], Attorney

For the Department of Education:

[REDACTED] District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 11/15/2023

(All present by video or telephone)

For the Student:

[REDACTED]., Attorney

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 12/15/2023

(All present by video or telephone)

For the Student:

[REDACTED]., Attorney

[REDACTED], Legal Assistant

[REDACTED], Parent Student

[REDACTED], Associate Principal and Director of Education, of the [REDACTED]

For the Department of Education:

None

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

Entered 10/17/2023

A. Due Process Complaint (DPC), 09/07/2023, 7 pages Entered 12/15/2023

B. Notice of Unilateral Placement, 08/24/2023, 3 pages

C. Psychoeducational Evaluation, 06/11/2021, 4 pages

D. [REDACTED] [REDACTED] [REDACTED] Contract, 09/05/2023, 5 pages

E. [REDACTED] [REDACTED] [REDACTED] Curriculum Description, undated, 9 pages

F. [REDACTED] School Schedule, 2023-2024, 1 page

G. [REDACTED] [REDACTED] Quarter 1 Report Card, 2023-2024, 2 pages

H. Affidavit of [REDACTED], 12/15/2023, 5 pages

I. Affidavit of [REDACTED], 12/15/2023, 3 pages

DEPARTMENT OF EDUCATION (DOE)

Entered 11/01/2023 1 Findings of fact and decision (FOFD), case 221213, 8/9/22, 19 pages 2 Countersigned pendency implementation form, 10/31/23, 1 page

IMPARTIAL HEARING OFFICER

Entered 10/17/2023 I Notice of Appointment, 09/19/2023, 4 pages Entered 11/01/2023 II Notice of Appearance, 10/30/2023, 1 page Entered 12/15/2023 III Consolidation Order, 12/14/2023, 3 pages

INTRODUCTION

On 09/19/2023, 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 10/17/2023, 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.

Parent requested a Pendency Hearing, and one was held, on 11/01/2023.

Pendency Hearing was held, on 11/01/2023. At that time a Pendency Implementation Form was executed, and a Pendency Order was no longer needed. (Ex 2)

Hearing continued, on 11/15/2023. This Hearing was adjourned due to availability of a Parent Witness, and set to continue, on 12/15/2023.

Hearing continued, and concluded, on 12/15/2023.

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:

- Amn IEP meeting took place, on 03/13/2023, which was not capable of offering the Student a FAPE (Ex A 2); - The DOE has failed to offer Student a free and appropriate public education (FAPE), in part, by failing to offer the Student an appropriate program and placement, for the 23-24 school year; and - The Parents have unilaterally placed Student at the [REDACTED] (Unilateral Placement – UP) and seek DOE funding for this placement, with transportation. (Ex A 1 & 3)

JURISDICTION

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

THE POSITION OF EACH PARTY

The DOE did not defend any offer of a Free Appropriate Public Education (FAPE), for the Student, for the 23-24 school year. (T 6)

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

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

A. Due Process Complaint (DPC), 09/07/2023, 7 pages Details allegations of a denial of FAPE, for the 23-24 school year, and sought after relief.

B. Notice of Unilateral Placement, 08/24/2023, 3 pages Parent notifies the DOE of: alleged failings of the 03/13/2023 IEP; 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. Psychoeducational Evaluation, 06/11/2021, 4 pages Evaluation discloses areas of Student challenge which include:

o Cognitive Abilities Verbal Comprehension index fell in the Low Average range, which indicated below age-appropriate skills in verbal areas such as reading and writing.; and Fluid Reasoning Skills measured in the Extremely Low range, which shows that she can have significant difficulty figuring out non-verbal complicated problems on a grade appropriate level. (Ex C 2) o Academics Skills Student performed in the Low range on the Reading Composite and in the Below Average range on the Mathematics Composite. (Ex C 2)

D. [REDACTED] [REDACTED] [REDACTED] Contract, 09/05/2023, 5 pages Student 23-24 Tuition is set forth as:

- Base Tuition $[REDACTED].00 (Ex D 2)

Parents are obligated to payment under the terms of the Contract, via signature. (Ex D 2 & 4) - Related Services $[REDACTED].00 (Ex D 5) (Speech 2x30 minutes and Counseling 1 x 30 minutes) (Ex D 5)

Parents are obligated to payment under the terms of the Contract, via signature. (Ex D 5)

E. [REDACTED] [REDACTED] [REDACTED] Curriculum Description, undated, 9 pages

General characteristics, of the UP, include:

- dual curriculum in both [REDACTED] and Secular studies. Our secular studies curriculum is based upon a Common Core New York State curriculum with the supports and accommodation identified on each student's NYC DOE IEP and our students are required to master skills needed for the New York State Regent examinations and graduate with a Regents diploma. We work on cross disciplinary coursework to reinforce these skills, to connect and enhance our students' learning across various disciplines. (Ex E 1); - Secular Studies Curriculum is detailed for: o English (Ex E 1-2) o Writing (EX E 2-3) o U.S. History (Ex E 3-4) o Math (Ex E 4) o Chemistry (Ex E 5) o Computers (Ex 5-6) o Physical education (Ex E 6) o Health Education (Ex E 6) o Learning Lab- Each day students have the opportunity to meet one on one or in small groups with teachers to work on any academic subject of their choosing. It is also used as a time to make up for work that they may have missed. Teachers may use this period to request that students work with them during the Learning Lab if they feel that a particular student needs additional review or instruction. (Ex E 6) - [REDACTED] Studies, including [REDACTED] Philosophy and [REDACTED] History. (Ex E 6-9)

F. [REDACTED] [REDACTED] [REDACTED] Schedule, 2023-2024, 1 page Student Academic schedule, including secular and non secular periods.

G. [REDACTED] [REDACTED] [REDACTED] Quarter 1 Report Card, 2023-2024,

2 pages

Student academic success is detailed in academic areas, including Mathematics and English.

H. Affidavit of [REDACTED], 12/15/2023, 5 pages [REDACTED], Associate Principal and Director of Education, of the [REDACTED], provided Testimony that includes:

- Witness qualifications (Ex H 1); - UP characteristics, including: o UP program works exclusively with “students who are identified as having disabilities or special needs, in small classes of between 9 to 10 students, with teachers and related service providers. Within those classes, students are in groups of 2 to 4 students, and sometimes we provide small portions of one-on-one intervention, as needed. Students are taught by multiple teachers in a departmentalized program, who have occasion to collaborate and discuss the needs of a child they are all serving at weekly meetings. The teachers also collaborate with our related service providers, who both push-in and pull-out, and there's a collaboration of both curriculum and the ways to give over that curriculum.” (Ex H 1); and o Provides speech and language services, counseling, and occupational therapy (Ex H 2). - Familiarity with the Student (Ex H 2); - Details regarding the Student’s delays and areas of special education need, including: disability in reading, and deals with school-based anxiety, and speech language delays (Ex H 2); - Student classes have ten students and one teacher, with groups as small as 2-5 students; - The UP incorporates religious components, but separates religious classes from secular ones. In Student’s schedule, 25% of her schedule is religious, and the balance is secular instruction. (Ex H 3); - Student curriculum, supports, and progress are detailed in areas of: o English (Ex H 3-4) o Math (Ex H 4) o How Student socializing and focus are properly maintained Ex H 4-5).

Witness professional opinion, includes that the UP: ”is an appropriate placement for [Student] for the 2023-2024 school year. We are providing a very structured and supportive setting where she feels comfortable attempting new tasks and feels confident. She is making meaningful progress in her classes and her academic skills are growing. I believe she requires the amount of support she is receiving in order to make this progress and would not likely be successful in a less restrictive setting.” (Ex H 5)

I. Affidavit of [REDACTED], 12/15/2023, 3 pages Parent provides Testimony that includes detailing the Student’s educational history. (Ex I 1)

Parent attended an IEP meeting, for the Student, on 03/13/2023, and voiced her concerns and disagreement, with the IEP. (Ex I 2)

Parent communicated concerns to the DOE, including intent to unilaterally placing the Student, at the UP. (Ex B, Ex I 2)

Witness details positive experience, with the Student’s attendance ate the UP: “We sent [Student] back to [UP] based on the very positive experience she has had in the past two years in the school. The teachers understood her very well and really connected with her, and she demonstrated real growth in self esteem and confidence doing schoolwork. We believed sending her back to that program was likely to continue that same progress.” (Ex I 3)

Parent believes the Student has “continued to make encouraging progress at [UP]p. We are glad to see [REDACTED] make progress in her attention and ability to get work done. She is receiving good progress reports which show the success she’s having in this school. She feels more and more confident approaching schoolwork, and has a positive attitude about school. The school staff communicate with me on a regular basis and we speak on a regular basis to address concerns. I firmly believe this school is very adequately meeting her needs.” (Ex I 3)

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 C, E, F, G, H & I)

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) [REDACTED] [REDACTED] [REDACTED] Contract, 09/05/2023, evidences Student 23-24 Tuition as: Base Tuition: $[REDACTED].00 (Ex D 2)

Related Services: $[REDACTED].00 (Ex D 5)

Parents are obligated to payment under the terms of the Contract, via signature. (Ex D 2, 4-5)

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.

The UP incorporates religious components, but separates religious classes from secular ones. In Student’s schedule, 25% of her schedule is religious, and the balance is secular instruction. (Ex H 3)

Student DOE fundable Tuition is calculated as:

Base Tuition: $[REDACTED] (Less 25%) = $[REDACTED] Related Services: $[REDACTED] (Ex D 5) Total: $[REDACTED]

I find the Parent is entitled to direct UP funding as Ordered below.

TRANSPORTATION

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). In addition, 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" (Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]).

Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 16¬035). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]).

Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

Evidence specific to a claim related to special education transportation has not been presented.

This relief is denied.

ORDER

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

2. [REDACTED] (Unilateral Placement – 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], as follows:

o Reimbursement to Parent for any Tuition paid for by Parent and o Direct Payment to [REDACTED] (UP) for any balance.

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: December 20, 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.