New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 612852 - NYC: 259858

FINDINGS OF FACT AND DECISION

Case Number: 259858

Student’s Name: REDACTED

Date of Birth: REDACTED

School District: NYC DOE

Hearing Requested by: Parent

Request Date/Date Complaint Filed: 09/08/2023

Date(s) of Hearing: 12/4/2023

Actual Record Closed Date: 12/19/2023

Date of Decision: 12/20/2023

Hearing Officer: Paul J. DeSena

INTRODUCTION

This is a decision in a hearing under the Individuals with Disabilities Education Act [hereinafter, “IDEA”] and Section 504 of the Rehabilitation Act of 1973. The Student was 5 years of age at the start of the 2023/24 school year, attending the Private School. (Ex. A, at 1). In the Due Process Complaint [hereinafter, “DPC”], the Parent alleged that the Department of Education [hereinafter, “District” or “DOE”] failed to provide the Student a Free Appropriate Public Education [hereinafter, “FAPE”] for the 2023/2024 school year. (Ex. A, at 1).

The Parent requests tuition reimbursement for the 2023/24 school year for Student’s private program not approved by the Commissioner of Education for the education of students with disabilities. (Id, at 2, 6-7).

As discussed below, I find that the District failed to provide the Student a FAPE for the 2023/24 school year. Additionally, the Private School offered the Student specially designed instruction sufficient to meet the Student’s needs and the equities support the Parent’s requested relief.

PROCEDURAL HISTORY

The Parent filed this case on 9/08/2023. (Ex. A). I was appointed to hear this case on 9/25/2023. I conducted a Pre-Hearing Conference [hereinafter, “PHC”] with the Parties on 10/13/2023. (See generally, PHC Tr.). A hearing was held on 12/4/2023 (See generally, Hearing Tr.). The Parent and the District were represented by counsel (Id.).

At the hearing, the District introduced exhibits 1-10 into evidence, called no witnesses, made an opening and closing statement, and cross-examined one of the Parent’s witnesses. (See generally, Hearing Tr.). The District contested that they denied the Student a FAPE for the 2023/24 school year, that Parent’s unilateral placement was appropriate for the Student, and that the equities balanced in the Parent’s favor. (Id, at 24-25).

The Parents argued that the District denied the Student a FAPE, that the Parent’s unilateral placement was appropriate for the Student, and that the equities supported an award of tuition. (See Hearing Tr., at 26-28). The Parents introduced exhibits A–T into evidence.^[1] (Id., at 20-33). The Parent’s attorney delivered an opening statement. (Id., at 26-28). The Parent called two witnesses, the Student’s Parent, and the Assistant Principal/Board Certified Behavior Analyst for the Private School (by affidavit). (Exs. S, T). The Parent’s attorney made a closing statement. (Hearing Tr., at 46-50). This order follows.

FINDINGS OF FACT

After reviewing the record generated at the hearing, I make the following findings of fact and determinations.

At the start of the 2023/24 school year, the Student was a REDACTED-year-old student who attended the Private School. (Ex. B, at 1). The 2023/24 school year was the Student’s first year in the Private School. (Ex. S, at ¶ 10). Student is diagnosed with autism spectrum disorder, global developmental delay, and ADHD. (Ex. B, at 3). The Student is “has persistent deficits in social communication and social interaction and has restricted, repetitive patterns of behavior.” (Ex. B, at 3). The Student is also “unable to focus and maintain attention which hinders academic progress in a classroom.” (Ex. S, at ¶ 10). Additionally, the Student “has serious maladaptive behaviors which interfere with his ability to learn,” will, when he does not get his way, “throw things…invade the personal space of others, and throw tantrums,” will “choke on food” because “[h]e overstuffs his mouth which causes choking or vomiting,” and “falls and trips a lot which is a safety concern.” (Ex. S, at ¶¶ 11-12). Finally, the Student “is an elopement risk and will run away,” “will put inedible objects in his mouth,” and “requires one to one support to address these behaviors.” (Ex. T, at ¶ 6).

On 5/31/2023, the District held an IEP meeting, which the Parent attended. (Ex. T, at ¶ 8). No copy of the IEP generated as a result of this meeting was admitted into the record. Via notice of recommendation also dated 5/31/2023, the District recommended a 12-month, 12:1+1 placement in an NYC DOE Specialized school, along with group and individual occupational therapy, individual speech-language therapy, individual physical therapy, parent counseling and training, and a 1:1 health paraprofessional. The Parent did not receive a school location letter following this IEP meeting or notice of recommendation. (Ex. T, at ¶ 11).

On 6/14/2023, the District held another IEP meeting. (Ex. 1, at 23). Parent and required District personnel were present at the meeting, though Parent was given less than one day of notice for the meeting. (Ex. 1, at 26; Ex. T, at ¶ 12). The present levels of performance note that the Student “often stuffs his mouth with food and pockets it which can be a danger,” “would benefit from a toileting schedule,” and “should be in a classroom where the adults…in the room are supporting his learning and development through appropriate cueing, prompting, and scaffolding, simple directives, positive feedback and reinforcement, and modeling.” (Ex. 1, at 4-6). The IEP recommended an 8:1:1 special education classroom at a DOE non-specialized school for a 10 month program, 1:1 occupational therapy twice per week for 30 minutes per session, 2:1 occupational therapy once per week for 30 minutes a session, 1:1 physical therapy three times per week for 30 minutes per session, group speech-language therapy once per week for 30 minutes per session, 1:1 speech-language therapy twice per week for 30 minutes per session, parent counseling and training twice yearly for 30 minutes per session, and a paraprofessional for the purposes of health, gross motor functioning, toileting, choking, and dysphagia. (Ex. 1, at 18-23). This IEP specifically rejected placement in a specialized school because, according to the Parent, the other students would be too “low functioning.” (Ex. 1, at 25; Ex. T, at ¶ 17).

Following this IEP meeting, the Parent wrote a letter to the CSE chairperson on 6/28/2023, stating, in relevant part, that 1) the IEP was inadequate because the District failed to conduct a functional behavioral assessment or come up with a behavioral intervention plan to address the Student’s more problematic behavior, especially since the Student had such a plan in his pre-school placement, 2) the Parent toured an 8:1:1 classroom, and was told that paraprofessionals could not and would not assist the Student in toileting, 3) the school building was too large and the Student was too uncoordinated to navigate it, and 4) the related services area had multiple sessions of related services occurring there at once, which the Parent felt would be too distracting for the Student. (Ex. O, at 2-3).

Following this letter, the parent received a notice of recommendation on 6/30/23, which recommended an 8:1:1, 10-month program at a DOE Non-Specialized school, along with group and individual occupational therapy, group and individual speech-language therapy, individual physical therapy, parent counseling and training, and a 1:1 health paraprofessional. (Ex. P, at 1). This letter also listed a school location, which was a DOE specialized school, not a non-specialized school. (Ex. T, at ¶ 17). The Parent visited this location, but was told that the school would not be able to implement the 8:1:1 classroom for the Student because the existing 8:1:1 classrooms were full, but that the school had room in a 12:1:1 classroom. (Ex. T, at ¶ 18). A few days later, the Parent received a phone call from a counselor at a different specialized school, was told that the Student would be placed at that location. (Ex. T, at ¶ 19). In the conversation with the counselor, the Parent learned that the school would not be able to implement the Student’s 6/14/2023 IEP as written, in that the school was specialized instead of non-specialized, and had no 8:1:1 standard assessment classrooms available. (Ex. T, at ¶ 20). The Parent was sent a school location letter for this latter school on 7/27/2023. (Ex. 8). Thereafter, the Parent wrote a letter to the CSE chairperson on 8/7/2023 stating, in sum and substance, that the Student’s existing placement could not implement the Student’s IEP as written and that she would place the Student at the private school if the DOE was unable to offer a placement that could implement the Student’s IEP as written. (Ex. Q, at 2-3). Finally, on 9/8/2023, the Parent received another notice of recommendation for a different school that purported to be able to implement the IEP as written, but by that time, the school year had already started and the Student had been placed at the Private School. (Ex. R, at 1; Ex. T, at ¶ 26). This last school placement, however, was the same placement that the Parent had toured in late June. (Ex. T, at ¶ 27). Parent, however, had previously been told that the paraprofessionals at this facility could not and would not assist the Student with toileting despite the fact that the Student required such assistance.

(Ex. T, at ¶ 27).

The Private School is a “co-educational, special education program for students who require small classes, intensive teaching, individual supports, and differentiated instruction.” (Ex. S, at ¶ 4). The Private School has three locations, and for the 2023/24 school year, the location at which the Student was placed had 21 students. (Ex. S, at ¶¶ 4-5). For the 2023/24 school year, the Student is placed in a 6:1:1 classroom with a 1:1 paraprofessional. (Ex. S, at ¶ 14). The Student benefits from the small class because, in that class size, he receives direct instruction, his teacher has the time to break instructions down to him one step at a time, and, because he is easily distracted, the smaller class helps the Student attend to instruction by limiting distractions. (Ex. S, at ¶ 15). The other Students in the Student’s class are similar in age and ability level, have similar learning styles, and work at similar paces. (Ex. S, at ¶ 16). Class curriculum can be tailored to meet each student’s specific needs. (Id.).

The Student’s teacher has a Master’s Degree in special education, and the classroom assistant in the Student’s class is working towards her Master’s Degree. (Ex. S, at ¶ 14). All of the Student’s related service providers either have their Master’s degree or are otherwise licensed members of their professions. (Ex. S, at ¶¶ 34-38). Additionally, the Student receives counseling from a licensed clinical social worker.

(Ex. S, at ¶ 39). The Student’s paraprofessional is also working towards her Master’s degree in special education. (Ex. S, at ¶ 18).

At the Private School, the Student is provided with “individualized supports and accommodations to address his deficits including a 1:1 paraprofessional, behavioral consultation, sensory breaks, behavioral supports, and toileting assistance. (Ex. S, at ¶ 17). In addition to his several classes, the Student also receives 1:1 speech-language therapy three times weekly, art therapy once weekly, 1:1 occupational therapy twice per week, 1:1 physical therapy three times per week, as well as group and individual counseling, each for one session per week. (ERx. S, at ¶¶ 34-39). Each session of related services is 30 minutes. (Hearing Tr., at 37-38). The Student’s paraprofessional provides the student with feeding assistance, assistance with walking and navigation, behavioral support, and redirection. (Ex. S, at ¶ 18). To address maladaptive behaviors, the Student is provided with push-in behavior consultations. (Ex. S, at ¶ 19). Additionally, the Student is provided with “frequent body breaks and sensory supports which help keep [the Student] regulated and more available to learn.” (Ex. S, at ¶ 20). The Student is also provided with access to a full sensory gym complete with swings, therapy balls, and a trampoline. (Id.). Finally, the Private School implemented a toileting schedule and, as of the date of the hearing, the Student was toilet trained and did not have accidents during the day. (Ex. S, at ¶ 21).

The Assistant Principal testified that “this year, [the Student] has been making slow but steady progress towards his goals. (Ex. S, at ¶ 44). Additionally, the Student’s fall progress reports also report progress. (Exs. G-M). The Student’s Parent stated that she has “observed a lot of progress” in the Student, including in adaptive and life skills. (Ex. T, at ¶ 28).

The tuition at the Private School for the 2023/24 school year is $148,600, which includes the base tuition, a 1:1 paraprofessional, and all related services. (Ex. D). The Parent testified that she is “unable to pay the full cost of tuition out of pocket.” (Ex. T, at ¶ 25).

CONCLUSIONS OF LAW AND ANALYSIS

When a parent believes that a school district has failed to provide a student with a FAPE, a parent may unilaterally enroll the child in a private school and seek tuition payment from the school district by filing a due process complaint. (Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 376 [2d Cir. 2014] (quoting Reyes ex rel. R.P. v. New York City Dep’t of Educ., 760 F.3d 211, 215 [2d Cir. 2014]). The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” (20 U.S.C. § 1415[b][6][A]).

A district must pay for the cost of a student’s tuition at a private school if the three prongs of the Burlington/Carter test are met: (1) the DOE denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition. (See Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-15 [1993]).

In IDEA due process hearings in New York, school districts have the burden of proof – including the burden of production and burden of persuasion – except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. (NY Educ. Law § 4404[1][c]).

A. Prong I

The IDEA (20 U.S.C. §§ 1400-1482) contemplates two specific purposes designed 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 Sch. Dist. v. T.A., 557 U.S. 230, 239 (2009); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]). 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).

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]), 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]). A free and appropriate public education can be said to be 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; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; 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. Fla. 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]). The Supreme Court ruled that “[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 137 S. Ct. 988, 999 [2017]).

Although school districts must comply with the checklist of procedures for developing a student's IEP, “[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 Second Circuit 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. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck

Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an IHO 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).

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), but 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). Indeed, “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created” (Endrew F., 137 S. Ct. at 1001), and an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents,” is what is required. (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 also Grim, 346 F.3d at 379). 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) but are required to 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]).

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 Endrew F., 137 S. Ct. at 1001) and designed to be provided in the least restrictive environment (hereinafter, “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 also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; and Walczak, 142 F.3d at 132.). An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), and outline annual goals specifically designed to address the Student’s needs resulting from his disability to make progress in the general education curriculum (34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]) through the use of appropriate special education services. (34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]). Although not every student can be expected to attend a regular education curriculum, the IEP “must be appropriately ambitious in light of his 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).

Although federal and State regulations do not expressly state that a district must provide a written notice to the parents in any particular format describing the "”bricks and mortar” location to which a student is assigned and where the student's IEP will be implemented, once an IEP is developed and a parent consents to a district's provision of special education services, the IDEA is clear such services must be provided to the student by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR § 300.320). When determining how to implement a student’s IEP, the assignment of a particular school is an administrative decision, provided it is made in conformance with the CSE's educational placement recommendation (see K.L.A. v. Windham Southeast Supervisory Union, 371 Fed. App'x 151, 154, 2010 WL 1193082, at *2 [2d Cir. Mar. 30, 2010]; White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 [5th Cir. 2003]; see Veazey v. Ascension Parish Sch. Bd., 121 Fed. App'x 552, 553 [5th Cir. Jan. 5, 2005]; A.W. v. Fairfax Co. Sch. Bd., 372 F.3d 674, 682 [4th Cir. 2004]; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 [2d Cir. 1980]). To be clear there is no requirement in the IDEA that a student's IEP name a specific school location (see, e.g., T.Y., 584 F.3d at 420). Moreover, parents generally do not have a procedural right in the specific locational placement of their child (see Luo v. Baldwin Union Free Sch. Dist., 2013 WL 1182232, at *5 [E.D.N.Y. Mar. 21, 2013], aff'd, 556 Fed. App'x. 1, 2013 WL 6726899 [2d Cir Dec. 23, 2013]; J.L. v. City Sch. Dist. of New York, 2013 WL 625064, at *10 [S.D.N.Y. Feb. 20, 2013]; see also R.E., 694 F.3d at 191-92 [finding that a district may select a specific public school site without the advice of the parents]; F.L. v. New York City Dep't of Educ., 2012 WL 4891748, at *11 [S.D.N.Y. Oct. 16, 2012] [noting that parents are not procedurally entitled to participate in decisions regarding public school site selection]).

There is, however, district court authority indicating that a parent has a right to obtain information about an assigned public school site (see H.L. v. New York City Dep't of Educ., 2019 WL 181307, at *9 [S.D.N.Y. Jan. 11, 2019] [noting that "[i]n light of M.O., courts have found that parents have the right to obtain timely and relevant information regarding school placement, in order to evaluate whether the IEP can be implemented at the proposed location"]; F.B. v New York City Dep't of Educ., 132 F. Supp. 3d 522, 538-45 [S.D.N.Y 2015] [finding that the parents "had at least a procedural right to inquire whether the proposed school location had the resources set forth in the IEP"]; V.S. v New York City Dep't of Educ., 25

F. Supp. 3d 295, 299-301 [E.D.N.Y. 2014] [finding that the "parent's right to meaningfully participate in the school selection process" should be considered rather than the "parent's right to determine the actual school selection"]; C.U. v. New York City Dep't of Educ., 23 F. Supp. 3d 210, 227-29 [S.D.N.Y. 2014] [holding that "parents have a procedural right to evaluate the school assignment" and "acquire relevant information about" it]).

Although not explicitly stated in federal or State regulation, implicit in a district's obligation to implement an IEP is the requirement that, at some point prior to or contemporaneous with the date of initiation of services under an IEP, a district must notify parents in a reasonable fashion of the bricks and mortar location of the special education program and related services in a student's IEP (see T.C. v. New York City Dep't of Educ., 2016 WL 1261137, at *9 [S.D.N.Y. Mar. 30, 2016] [“a parent must necessarily receive some form of notice of the school placement by the start of the school year”]; Tarlowe, 2008 WL 2736027, at *6 [a district's delay does not violate the IDEA so long as a public school site is found before the beginning of the school year]). While such information need not be communicated to the parents by any particular means in order to comply with federal and State regulation, it nonetheless follows that it must be shared with the parent before the student's IEP may be implemented. Furthermore, as the Southern District provided in T.C. v. N.Y.C. Dep't of Educ., 15-CV-3477 [VEC] [S.D.N.Y. March 30, 2016]: “There is no requirement that a parent receive written notice of a school placement before the beginning of the school year…[n]onetheless, in order to provide a FAPE, a parent must necessarily receive some form of notice of the school placement by the start of the school year. (Id. [internal citations omitted]).

The Parent alleges that the District committed a number of procedural and substantive violations, specifically, inter alia, that (1) the District failed to indicate a placement at which the Student’s IEP services could be accessed prior to the start of the 2023/24 school year (2) the District failed to generate a substantively appropriate educational program for the Student (See generally, Ex. A).

In the instant matter, the placement and school location process following the IEP meetings was rife with errors on the part of the District. In the first instance, the notice of recommendation delivered on 5/31/2023 gave, for the reasons discussed below, the substantively inappropriate placement of a 12:1:1 program, but was not accompanied by a placement at any brick and mortar school. In any event, this recommendation was essentially rescinded as of 6/30/2023, when parent received her second notice of recommendation, which gave a school placement as well. Unfortunately, this placement was unable to implement the Student’s IEP. On 7/27/2023, the Student received another school location letter, rescinding, ostensibly, the previous placement, but that brick and mortar location was also unable to implement the Student’s IEP as written. Finally, after the school year at both the District and the Private School had started, and after the Student had already been placed at the Private School, the Parent received another school location letter on 9/8/2023. Unfortunately, based on investigations the Parent had already performed, it was clear, at that time, to the Parent that this brick and mortar location would also be unable to implement the Student’s IEP as written.

At some point, prior to the beginning of the school year, it is the District’s duty to alert Parents as to the brick and mortar location at which Student can access the services in the IEP as written. (see T.C.

v. New York City Dep't of Educ., 2016 WL 1261137, at *9 [S.D.N.Y. Mar. 30, 2016] [“a parent must necessarily receive some form of notice of the school placement by the start of the school year”]; Tarlowe, 2008 WL 2736027, at *6 [a district's delay does not violate the IDEA so long as a public school site is found before the beginning of the school year]). Here, the District was unable to find a brick and mortar location for the Student prior to the start of the 2023/24 school year. Even the location offered after the beginning of the school year, on 9/8/2023, was unable to implement the Student’s IEP as written: indeed, the Parent had been informed in June of 2023 that the location recommended on 9/8/2023 had no space for the Student in any 8:1:1 classroom. Thus, as of the first day of the 2023/24 school year, the Parent had no real choice as to where to send her daughter to school: the Private School was available, and the District had failed to send a Placement Letter notifying the Parent where the Student’s IEP services could be accessed as written in the IEP. See Application of a Student with a Disability, Appeal No. 22-150. These factors (a) impeded the student's right to a FAPE, and (b) caused a deprivation of educational benefits, as the Student had no appropriate placement at the start of the 2023/24 school year. (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). Accordingly, I find that, on this basis, the District’s failure to notify the Parent of a location at which the Student’s services could be accessed as written in the Student’s IEP comprises both a procedural and a substantive denial of FAPE.

The above holding comports with Appeal No. 22-150, which on facts very similar to the instant matter, found that the District’s failure to provide a Placement Letter by the beginning of the school year resulted in a denial of FAPE:

“[The District’s failure to send Parent a Placement Letter] constitutes a procedural error, which under the circumstances presented resulted in the parent being provided with too little information as to how or where the recommended special education program would have been implemented and, therefore, resulted in a denial of FAPE.” Application of a Student with a Disability, Appeal No. 22-150.

Separately, I find that the District’s recommendations to be substantively inappropriate. Where, as here, the Student is placed in a 6:1:1 class in a Private School, and where, as here, “even in a class of six students, [the Student] needs prompting and redirection to maintain attention” (Ex. S, at ¶ 47), I find that the District placements of 12:1:1 and 8:1:1 to be substantively inappropriate for the Student.

Further, 8 NYCRR 200.6[h][2][i]-[iv] provides that “[i]n all cases the size and composition of a class shall be based on the similarity of the individual needs of the students” (emphasis added) on the basis of the Students’ “levels of academic or educational achievement and learning characteristics…levels of social development…levels of physical development; and…the management needs of the students in the classroom.” Nothing in this record establishes that the District’s several placements could come close to meeting the requirements of 8 NYCRR 200.6[h][2][i]-[iv].

Accordingly, and based on the totality of the evidence, I hold that the District failed to meet its burden of proof as to Prong I of the Burlington/Carter standard. According to the Supreme Court, “a reviewing court may fairly expect [public] authorities 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 Cty. Sch. Dist. RE-1, 580 U.S. 386, 404 [2017]). In the instant case, the District rested on its exhibits to support its assertion that it had provided the Student with a FAPE. (See generally, Hearing Tr.). These exhibits were, to say the last, insufficient to allow the District to carry the day. Thus, the apparent procedural violations listed above and the substantive inappropriateness for the Student of the District’s IEP went entirely unexplained and unmitigated. Accordingly, for the above reasons, I hold that the District failed to offer the Student a FAPE for the 2023/24 school year.

B. Prong II

A private school placement must be “proper under the Act.” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370). This means that the Private School must offer an educational program that meets the student’s special education needs. (See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 [2d Cir. 2007]; and Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). 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). Additionally, “[s]ubject 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]).

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). Instead, they need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a student with a disability, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112 citing Frank G., 459 F.3d at 364-65). 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 C.F.R. § 300.39[a][1]; 8 NYCRR § 200.1[ww]; Hardison, 773 F.3d 386).

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 benefits. Still, 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. 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; and see Gagliardo, 489 F.3d at 115).

In this case, the Private School meets the Frank G. standard and “provides educational instruction specially designed to meet the unique needs” of the Student that will enable him to make progress. First, the Private School provides the Student with small class sizes, which he needs and benefits from. Second, the Private School provides trained teachers who can support the Student. Third, the Private School individualizes its instruction for the Student by providing copious adaptations that the Student needs. Finally, the Student is making progress at the Private School. I will discuss each in turn.

First, the Private School is appropriate because of its smaller class sizes. Small class sizes can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement. (Frank G., 459 F.3d at 365 citing Knable v. Bexley City Sch. Dist., 238 F.3d 755, 768 [6th Cir. 2001]). Small class sizes at a unilateral placement “come[] within the IDEA definition of ‘special education,’ namely, ‘specially designed instruction . . . to meet the unique needs of a child.’” (Frank G., 459 F.3d at 365 (citing 20 U.S.C. § 1401[29]). The Private School has three locations, and for the 2023/24 school year, the location at which the Student was placed had 21 students. (Ex. S, at ¶¶ 4-5). For the 2023/24 school year, the Student is placed in a 6:1:1 classroom with a 1:1 paraprofessional. (Ex. S, at ¶ 14). The Student benefits from the small class because, in that class size, he receives direct instruction, his teacher has the time to break instructions down to him one step at a time, and, because he is easily distracted, the smaller class helps the Student attend to instruction by limiting distractions. (Ex. S, at ¶ 15). The other Students in the Student’s class are similar in age and ability level, have similar learning styles, and work at similar paces. (Ex. S, at ¶ 16). Class curriculum can be tailored to meet each student’s specific needs. (Id.). Therefore, based on this educational program, I find that this factor tends to establish the appropriateness of the private school placement.

Second, the Private School is appropriate because it provides trained teachers to support the Student. The law in this circuit is that “a private placement need not provide certified special education teachers…for the disabled student,” but the Private School nevertheless ensures that its teachers have the training and specialization necessary to teach the Student based on her needs. (Frank G., 459 F.3d at 364). The Student’s teacher has a Master’s Degree in special education, and the classroom assistant in the Student’s class is working towards her Master’s Degree. (Ex. S, at ¶ 14). All of the Student’s related service providers either have their Master’s degree or are otherwise licensed members of their professions. (Ex. S, at ¶¶ 34-38). Additionally, the Student receives counseling from a licensed clinical social worker.

(Ex. S, at ¶ 39). The Student’s paraprofessional is also working towards her Master’s degree in special education. (Ex. S, at ¶ 18). Accordingly, I find that the Student’s providers have sufficient training to teach the Student based on his needs.

Third, the Private School is appropriate because it individualizes its instruction for the Student by providing copious adaptations that the Student needs. 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). At the Private School, the Student is provided with “individualized supports and accommodations to address his deficits including a 1:1 paraprofessional, behavioral consultation, sensory breaks, behavioral supports, and toileting assistance. (Ex. S, at ¶ 17). In addition to his several classes, the Student also receives 1:1 speech-language therapy three times weekly, art therapy once weekly, 1:1 occupational therapy twice per week, 1:1 physical therapy three times per week, as well as group and individual counseling, each for one session per week. (ERx. S, at ¶¶ 34-39). Each session of related services is 30 minutes. (Hearing Tr., at 37-38). The Student’s paraprofessional provides the student with feeding assistance, assistance with walking and navigation, behavioral support, and redirection. (Ex. S, at ¶ 18). To address maladaptive behaviors, the Student is provided with push-in behavior consultations. (Ex. S, at ¶ 19). Additionally, the Student is provided with “frequent body breaks and sensory supports which help keep [the Student] regulated and more available to learn.” (Ex. S, at ¶ 20). The Student is also provided with access to a full sensory gym complete with swings, therapy balls, and a trampoline. (Id.). Finally, the Private School implemented a toileting schedule and, as of the date of the hearing, the Student was toilet trained and did not have accidents during the day. (Ex. S, at ¶ 21). Because of these aspects of the program that are tailored to the student’s individual educational needs, I accordingly find that this factor also weighs in favor of the placement’s appropriateness.

Finally, the Private School is appropriate because the Student is making progress. Significant educational progress can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement. (Frank G., 459 F.3d at 365 citing Knable, 238 F.3d at 768). While a student’s progress at the private placement is not by itself sufficient to determine whether a placement is appropriate, that progress is a relevant factor in assessing the appropriateness of the placement. (Weaver v. Millbrook Cent. Sch. Dist., 812 F. Supp. 2d 514, 523 [S.D.N.Y. 2011]). The Assistant Principal testified that “this year, [the Student] has been making slow but steady progress towards his goals. (Ex. S, at ¶ 44). Additionally, the Student’s fall progress reports also report progress. (Exs. G-M). The Student’s Parent stated that she has “observed a lot of progress” in the Student, including in adaptive and life skills. (Ex. T, at ¶ 28). Accordingly, the Student’s uncontroverted progress suggests that the Private School is appropriate to meet the Student’s needs.

I find that the weight of the evidence establishes that the Private School addressed Student’s individual special education needs, and that the instruction offered there was “reasonably calculated to enable the child to receive educational benefits.” (Frank G., 459 F.3d at 364). As a result of the above, I find that Parent has satisfied her burden in proving that the Private School offered an educational program that met the Student’s needs under Prong II of the Burlington/Carter standard.

C. Prong III

Under the third and final prong of the Burlington/Carter test, courts consider “equitable factors” relevant to an order of tuition. (Gagliardo, 489 F.3d at 112). “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [Department] throughout the process to ensure their child receive[s] a FAPE.” (Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 [S.D.N.Y. Nov. 20, 2007]). Specifically, equitable considerations include the parents’ participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the DOE. (See D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 [S.D.N.Y. 2011]).

In this case, the Parent cooperated with the District and is entitled to full reimbursement. First, the Parent participated in the IEP meetings dated 5/31/2023 and 6/14/2023. (Ex. 1; Ex. T, at ¶¶ 8-12; M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 254 [2d Cir. 2012] [holding that when a parent attends the IEP meeting, this is one fact among others that weighs in favor of the parent’s request for a tuition award under Prong III of the Burlington/Carter test]). Additionally, on 8/7/2023, the Parent provided the necessary ten day notice of her concerns with the District’s offer of FAPE for the Student for the 2023/24 school year and her intent to unilaterally place the Student in the Private School absent a satisfactory placement. (34 C.F.R. § 300.148[d][1][ii]; Ex. A). Nor do I find it appropriate to make any equitable deduction for religious instruction. According to the Student’s schedule, there is a five-minute period of “prayer” daily. (Ex. F). As this amounts to a de minimis amount of time, and as it is not “instruction,” it is unnecessary to make any equitable deduction on this basis.

By way of relief, the Parent seeks direct tuition funding at the Private School. Direct retrospective tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. (See, e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]), holding that parents may seek direct funding in the instance in which “due to a lack of financial resources, (parents of a student with a disability) have not made tuition payments but are legally obligated to do so.”]. The Parent testified that she is “unable to pay the full cost of tuition out of pocket.” (Ex. T, at ¶ 25). This statement went uncontroverted at the Hearing. (See generally, Hearing Tr.). In light of the Parent’s uncontroverted inability to pay the full cost of tuition, I find that direct funding of tuition to the Private School is appropriate for the balance of the tuition not already paid by the Parent, as well as reimbursement to the Parent for tuition payments already made. Indeed, equity demands that the DOE fund Student’s Private School tuition in this instance.

I find no issue with the reasonableness of the tuition amount. “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.” (Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16, 114 S. Ct. 361 [1993]; see also J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 [S.D.N.Y. 2011] [stating that “this Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”]). The tuition at the Private School for the 2023/24 school year is $148,600, which includes the base tuition, a 1:1 paraprofessional, and all related services. (Ex. D). I hold that this tuition is reasonable in light of the small class sizes, the well-trained teachers, the highly specialized nature of the program, and the sheer number of separate services the Student requires to make educational progress. (See generally, Exs. E-M, S-T).

After considering the record at the hearing, I thus hold that the equities support the Parent’s claim for the cost of tuition and transportation and order the District to fully fund the Student’s tuition and transportation for the 2023/24 school year.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:

1. Within 35 days of the date of this Order, the District shall fund the balance of the Student’s tuition to the Private School still outstanding for the 2023/24 school year, and reimburse the Parent for the amounts already paid towards the same, for a total cost not to exceed $148,600. The DOE shall not require any documentation that is not already in the hearing record to issue payment to the Parent or the Private School.

2. Within 35 days of the date of this Order, The Office of Student Transport [OTP] shall contact the Parents to ensure that District transportation be continued for the remainder of the 2023/24 school year.

SO ORDERED.

DATED: 12/20/2023

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 – REDACTION IDENTIFICATION PAGE

Term Used In FOFD Redacted Information

Student REDACTED

Parent/Guardian REDACTED

Parent Attorney/Representative REDACTED

District Attorney/Representative REDACTED

Private School REDACTED

District REDACTED

Assistant Principal at REDACTED REDACTED

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Demand for Due Process 9/8/2023 (7 pages)

B. Developmental Pediatrician Evaluation REDACTED 10/3/2023 (3 pages)

C. Tuition Contract and Addendum REDACTED 5/31/2023 (2 pages)

D. Affidavit of Payment with Proof of Payment 10/24/2023 (3 pages)

E. REDACTED Program Description Undated (1 page)

F. REDACTED Daily Schedule 2023-2024 (1 page)

G. Educational Progress Report REDACTED 10/17/2023 (1 page)

H. Counseling Report, Fall 2023 REDACTED 11/2/2023 (1 page)

I. Speech Progress Report, Fall 2023 REDACTED 11/2/2023 (1 page)

J. Occupational Therapy Progress Report REDACTED 10/18/2023 (2 pages)

K. Physical Therapy Progress Report REDACTED 10/18/2023 (2 pages)

L. General Studies Progress Report REDACTED 11/16/2023 (2 pages)

M. Behavior Consulting Report REDACTED 11/22/2023 (1 page)

N. Attendance Record REDACTED 10/25/2023 (1 page)

O. Letter from Parent to NYCDOE (with fax confirmation) 6/28/2023 (4 pages)

P. Prior Written Notice NYC Department of Education 6/30/2023 (6 pages)

Q. Letter from Parent to NYCDOE (with fax confirmation) 8/7/2023 (4 pages)

R. Prior Written Notice NYC Department of Education 9/8/2023 (6 pages)

S. Affirmation of REDACTED 11/20/2023 (7 pages)

T. Affidavit of REDACTED 11/17/2023 (5 pages)

DOE EXHIBITS

1. IEP 6/14/2023 (26 pages; DOE)

2. Psychoeducational Evaluation Report 2/8/2023 (7 pages; DOE)

3. Classroom Observation 2/8/2023 (2 pages; DOE)

4. Occupational Therapy Progress Report 3/17/2023 (3 pages; DOE)

5. SLT Progress Report 3/15/2023 (4 pages; DOE)

6. Education Progress Report 3/2023 (4 pages; DOE)

7. PT Progress Report 3/3/2023 (3 pages; DOE)

8. School Assignment form 7/27/2023 (3 pages; DOE)

9. School History 1/27/2023 (3 pages; DOE)

10. PWN 5/31/2023 (4 pages; DOE)

IHO EXHIBITS

I. N/A N/A (N/A pages)

Footnotes

[1] A detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.