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NEW YORK STATE EDUCATION DEPARTMENT
IMPARTIAL DUE PROCESS HEARING
Case Cover Sheet
IHRS or NYC Case No.: 260848
School District: [Redacted]
Impartial Hearing Officer: Patricia L. Murrell, Esq., IHO
Request/Complaint Date: September 13, 2023
Date of Appointment: September 27, 2023
Filed/Date of Decision: December 16, 2024
NEW YORK STATE EDUCATION DEPARTMENT
IMPARTIAL DUE PROCESS HEARING
STUDENT, a minor, by and through
his/her Parent(s),
[REDACTED] and
[REDACTED]
Petitioners,
- against -
New York City Department of Education
School District # [Redacted]
Respondent.
Case No. 260848
Patricia L. Murrell, Hearing Officer
FINDINGS OF FACT AND
DECISION
I. INTRODUCTION[1]
This matter comes before the undersigned Impartial Hearing Officer (“Hearing Officer” or “IHO”), pursuant to the impartial hearing request and demand for due process (“Complaint”) filed on September 13, 2023, by the petitioners, [Redacted] and [Redacted], the parents (“Petitioners” or “Parents”) of [Redacted], currently an [Redacted]-year-old student with a disability (“Student”), as against the New York City Department of Education (“NYCDOE”), Committee on Special Education (“CSE”) [Redacted], District [Redacted] (“Respondent” or “District”, together with the Petitioners or Parents, the “Parties”).
On September 27, 2023, this Hearing Officer was appointed to preside over Case No. 260848. The Prehearing Conference (“PHC”) was held on October 26, 2023, during which the Parents confirmed that the primary issues alleged and relief requested and presented for determination, as detailed in the Complaint, included, inter alia , denial of a free appropriate public education (“FAPE”) for the 2022/2023 school year, based on the District’s alleged failure to (i) timely develop an individualized education program (“IEP”); (ii) consider sufficient evaluative data prior to developing the supplemental IEP; and (iii) recommend an appropriate special education program and placement. The Parents sought tuition funding from the District for the Student’s unilateral placement in a private school. Status Conference(s) were held on November 30, 2023 and January 4, 2024, during which it was reported that the matter was under investigation to determine whether a settlement could be reached. However, on February 8, 2024, the District reported that the matter had not, as yet, been referred for settlement, and the due process hearing (“Hearing”) was scheduled.
II. JURISDICTION
This Findings of Fact and Decision (“Decision”) is being rendered in accordance with the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et. seq . (“IDEA”); the Federal Regulations implementing IDEA, 34 C.F.R. 300.1 et seq .; Codes, Rules and Regulations of the State of New York, 8 NYCRR § Part 200; New York State Education Law, and its implementing Regulations, Educ. Law Art. 89 § 4404, et. seq.
III. BACKGROUND
This Hearing Officer commenced the Hearing telephonically and via videoconference on February 29, 2024, during which oral opening statements were presented on the closed record (“Hearing Record”) by the Respondent who was represented by [Redacted], Esq., Attorney for the District; and the Petitioners who were represented by [Redacted], Esq., Attorney for the Parents. On April 10, 2024, pursuant to directive, the ‘Joint Statement of Facts’ [2] , and the ‘Statement of Issues to be Adjudicated’ [3] were each submitted. On April 11, 2024, the District’s proposed exhibits (“1 through 9”) were proffered for submission into evidence, without objection; and the Parents’ proposed exhibits (“A through O”) were proffered for submission, without objection. On April 11, 2024, the Respondent did not proffer any witnesses; and the Petitioners presented testimony by [Redacted] (“Head Teacher”) at the [Redacted] (“Private School”). The Hearings set for April 16, 2024 and April 17, 2024 were rescheduled due to an emergency reported by the Parents; and on June 6, 2024, the Petitioners presented testimony by the Parent, [Redacted]; both of the witnesses attested that the testimony provided during the Hearing was true and correct; and each were subjected to cross-examination. Thereafter, on June 25, 2024, the Respondent and Petitioners presented their respective oral closing statements, and the Hearing was concluded. Hearing Transcript were circulated on March 4, 2024, April 15, 2024, April 17, 2024, June 10, 2024 and June 26, 2024. On August 19, 2024, the Parents submitted their Post-Hearing/Closing Brief; [4] and the District submitted its PostHearing/Closing Brief. [5] The Record was Closed on December 2, 2024.
IV. PRELIMINARY ISSUES PRESENTED
This Hearing Officer certified the following issue(s) for adjudication at the Hearing:
A. Whether the District denied the Student a FAPE during the 2022/2023 school year.
B. Whether the Parents were entitled to receive District funding for the Student’s tuition, during the 2022/2023 school year.
V. FINDINGS OF FACT
After considering all of the evidence in the Hearing Record, as well as the arguments asserted by both Parties, this Hearing Officer’s Findings of Fact are as follows:
1. The Joint Statement of Facts, together with all supporting documentary and testimonial evidence proffered into the Hearing Record by the Parties, have been fully reviewed, are hereby incorporated by reference into the ‘Findings of Facts’, and will not be restated herein, regarding the Student’s educational development, progress, evaluations, and/or recommendations, except where further elucidation is necessitated.
2. On May 27, 2019, [Redacted], OTR/L conducted an Occupational Therapy Evaluation of the Student on behalf of the NYC-DOE, to determine his therapeutic placement; during which it was determined that the Student presented with poor self-regulation skills, exhibited difficulty following multi-step directions, was slightly distracted by auditory and visual stimuli, and was constantly moving, fidgeting and repositioning himself (“2019 Occupational Therapy Evaluation”). [6]
3. On September 21, 2020, September 24, 2020, September 26, 2020, September 28, 2020, October 12, 2020 and October 19, 2020, Examining Psychologist [Redacted], Psy.D. (“Psychologist”) and Senior Neuropsychologist [Redacted], Ph.D. (“Neuropsychologist”) conducted a Neuropsychological Evaluation of the Student, pursuant to the Parents’ referral request, to obtain a comprehensive assessment of his functioning in the cognitive, academic, neuropsychological and emotional domains, and aid in his educational planning. In accordance therewith, certain assessments and subtests were administered, including, inter alia , Wechsler Intelligence Scale for Children – 5 th Ed. (“WISC-V”); Wechsler Individual Achievement Test – 3 rd Ed. (“WIAT-III”); Comprehensive Test of Phonological Processing – 2 nd Ed. (“CTOPP-2”); Gray Oral Reading Test – 5 th Ed. (“GORT-5”); Clinical Evaluation of Language Fundamentals – 5 th ed. (“CELF-5”); Behavior Rating Inventory of Executive Functions – 2 nd Ed. (“BRIEF2”); Test of Visual-Perceptual Skills – 3 rd Ed. (“TVPS-3”);Beery-Buktenica Test of Visual-Motor Integration (“VMI”); Behavior Assessment System for Children – 3 rd Ed. (“BASC-3”); and NEPSY-II (together, the “2020 Neuropsychological Evaluation”). The Psychologist and Neuropsychologist confirmed the Student’s previous diagnosis of Mixed Receptive-Expressive Language Disorder; and determined that he also presented with Attention-Deficit/Hyperactivity Disorder (“ADHD”), Combined Type, with related executive function deficits; Specific Learning Disability (“SLD”) in Reading (decoding, rate, comprehension, with related weaknesses in spelling); and Developmental Coordination Disorder (“DCD”) a/k/a Dyspraxia (together, the “Student’s Diagnoses”). Subsequent to which the Psychologist and Neuropsychologist recommended that the Student should continue to (i) attend his specialized school as he requires ongoing remedial, multisensory teaching strategies to develop his decoding and spelling skills in classrooms that are small and highly structured; (ii) work with a private reading tutor; and receive speech-language therapy (“SLT”) and occupational therapy (“OT”). [7]
4. On February 1, 2022, the Re-Enrollment contract for the Student’s attendance at the Private School during the 2022/2023 school year was executed (“Enrollment Contract”), which set forth the cost of his tuition at seventy-five-thousand-seven-hundred-thirty ($75,730.00) dollars (“Tuition”). On January 18, 2023, the Chief Financial Officer of the Private School, [Redacted], duly-executed an affidavit, which confirmed that the Parents had paid seventy-five-thousand-seven-hundred-thirty ($75,730.00) dollars, as full Tuition for the Student’s attendance at the Private School during the period between September 8, 2022 and June 15, 2023. The Parents submitted redacted copies of their bank statements, which evince five (5) Tuition payments made to the Private School. [8]
5. On June 24, 2022, the District convened a CSE meeting (“June 2022 CSE Meeting”), which was attended telephonically by the Parent, Special Education Teacher [Redacted], General Education Teacher [Redacted], District Representative [Redacted], and Homeroom Teacher at the Private School [Redacted] (together, the “June 2022 CSE Team”); who developed an IEP with an implementation date of September 6, 2022 and a projected annual review date of June 24, 2023 (“June 2022 IEP”), which referenced a Teacher Report, SLT Report, and the Student’s Diagnoses obtained from the 2020 Neuropsychological Evaluation; classified him as a child with a Speech or Language Impairment; noted his instructional/functional level as 3 rd grade; and recommended a ten-month Special Education program of Integrated Co-Teaching (“ICT”) (25/wk.), together with Group Special Education Teacher Support Services (“SETSS”) (5/wk.), Group Counseling (1x30), 1:1 OT (1x30), Group SLT (1x30) and 1:1 SLT (collectively, the “2022 Recommended Program”); to be provided in a NYC-DOE Non-Specialized District 1-32 School (“Public School”). The June 2022 IEP indicates that the Parent expressed concerns regarding the composition of the classroom, larger class sizes and the resulting distractions therefrom; as well as the potential anxiety the Student might suffer for being singled out when given SETSS support. The June 2022 IEP reported that other placement options were considered, including Special Class in a community school 12:1, Special Class in a community school 12:1+1, and NYSED-Approved Non-Public School (“NPS”) – Day; each of which were rejected because the Student did not need such intensive specialized instruction to address his educational needs. Notably, the June 2022 IEP does not indicate that any other evaluations were conducted or considered by the District prior to or during the June 2022 CSE Meeting. [9]
6. On June 27, 2022, [Redacted] and [Redacted], Homeroom Teachers at the Private School, issued an End of Year Progress Report for the 2021/2022 school year, which indicated that the Student had a transformative year, increased in maturity, and displayed great skills which helped him make academic progress in all subject areas. The Homeroom Teachers determined that to make this continuous progress, the Student needed a small class with a nurturing environment, a Teacher close-by to refocus his attention, and concepts taught in multiple ways and broken-down into manageable increments (“2022 Private School Progress Report”). [10]
7. Speech-Language Pathologist [Redacted] issued an End-of-Year Speech and Language Remediation Report for 2021/2022 school year, which indicated that the Student made steady progress at the Private School in the area of receptive language, was better able to generate simple inferences, and expand oral and written sentences; however, continued language support was recommended to address his listening comprehension, higher-level thinking skills, word retrieval, organization/formulation, grammar/syntax, narrative development and written expression. [11]
8. On July 28, 2022, the District issued a Prior Written Notice (“PWN”) indicating that an IEP was developed subsequent to the June 2022 CSE Meeting, which was based on a SLT Report and Progress Report, both dated May 23, 2022, and 2019 Occupational Therapy Evaluation (‘OT Assessment’); and recommended placement in a Public School for ICT, SETSS, Counseling, SLT and OT. In addition, the District issued a school location letter (“SLL”) on July 28, 2022, which indicated that services recommended on the June 2022 IEP developed at the June 2022 CSE Meeting would be provided at [Redacted] Elementary School, PS [Redacted] (“2022 Recommended Placement”). [12]
9. On August 24, 2022, a ten-day-notice (“TDN”) was submitted to the District, which advised, inter alia , that the Parents did not receive a copy of the June 2022 IEP subsequent to the June 2022 CSE Meeting; and therefore, they were unable to review and determine whether the goals and management needs were in accord with the Student’s needs. In addition, the Parents advised that the SLL had been received; however, due to closure, they were unable to arrange a tour of the 2022 Recommended Placement to gather more information regarding the classroom and Public School. Further advising that they were open to working with the NYC-DOE and would consider any placement offered; however, an appropriate placement must be secured prior to commencement of the school year, and unless and until the CSE offers an appropriate program and placement, the Student would be placed at the Private School and Tuition reimbursement would be sought for the 2022/2023 school year. An email was received from the NYC-DOE on August 24, 2022, confirming receipt of the TDN. [13]
10. On September 20, 2022, the District issued a notice indicating that a CSE meeting had been scheduled for November 29, 2022, to discuss the Student’s educational needs, and conduct an annual review and development of his IEP (“2022 CSE Meeting Notice”). [14]
11. On November 14, 2022, the Parents issued a second TDN to the CSE (“TDN-2”), which reiterated that the June 2022 IEP had not been received; and advised that subsequent to visiting and gathering information relating to the 2022 Recommended Placement, the Parents had determined that the proposed placement would not be appropriate for the Student on the basis that, inter alia , the ICT class follows the 4 th grade general education common core curriculum and reading pace, which the Student had not yet reached; he requires intensive reading instruction using Orton Gillingham, which was not the primary method of teaching thereat; and a classroom consisting of twenty (20) students would be too large and distracting for the Student who had difficulty maintaining attention in smaller classrooms with ten (10) students. The Parents advised that the Student continues to require a small, full-time special education school where he can be placed in small classes with a high-teacher-to-student ratio, a fully modified curriculum, and significant 1:1 support; therefore, he would continue placement at the Private School and Tuition reimbursement would be sought. The CSE confirmed receipt of TDN-2. [15]
12. On November 29, 2022, the District convened a CSE meeting (“November 2022 CSE Meeting”), which was attended telephonically by the Parent, Special Education Teacher [Redacted], Head Teacher [Redacted], and [Redacted] who participated in a dualcapacity as the District Representative and School Psychologist (together, the “November 2022 CSE Team”); who developed an IEP with an implementation date of December 13, 2022 and a projected annual review date of November 29, 2023 (“November 2022 IEP”), which referenced a School Progress Report, SLT Report, and the Student’s Diagnoses obtained from the 2020 Neuropsychological Evaluation; classified him with Speech or Language Impairment; noted his instructional/functional levels as 2 nd and 3 rd grade; and recommended a ten-month Special Education program of ICT for English Language Arts (“ELA”) (5/wk.), ICT for Math (10/wk.), ICT for Social Studies (3/wk.), ICT for Sciences (2/wk.), together with Group SETSS (5/wk.) for Math, ELA and Executive Functioning, 1:1 OT (1x30), Group OT (1x30), Group SLT (1x30) and 1:1 SLT (2x30) (collectively, the “November 2022 Recommended Program”); to be provided in a Public School. The November 2022 IEP indicates that the Parent expressed concerns regarding the size of an ICT classroom, the student-teacher ratio, and whether instruction would include the Orton Gillingham reading program. The November 2022 IEP indicated that other placement options were considered, including Related Services Only, which was rejected because it would not sufficiently support the Student’s academic goals and needs; SETSS alone was rejected because it would not address the Student’s relative needs for support of a special education teacher in all academic areas throughout the school day; and Special Class in a community school 12:1 was considered but rejected on the basis that the Student could learn and grow from being around typically developing peers in a less restrictive setting. Notably, the November 2022 IEP does not indicate that any other evaluations were conducted or considered by the District prior to or during the November 2022 CSE Meeting. [16]
13. On January 20, 2023, the Private School issued a Mid-Year Progress Report, which indicated that with a tailored approach to instruction, that met his specific learning needs, the Student made steady progress in all subject areas; more particularly, in Math he tackled increasingly challenging addition and subtraction problems through the lens of Singapore Math; in Writing he began incorporating strategies to develop independent paragraphs; in Reading he benefited from the sequential, repetitive, multi-sensory nature of the Orton Gillingham approach and demonstrated a solid application of word attack strategies; and exhibited developing skills in Social Studies, strong work habits in completing homework assignments, and maintaining an organized workspace. It was further reported that sustaining attention during lessons remained challenging for the Student, who required a tailored approach to instruction; and needed material to be broken down into small increments, taught explicitly and regularly reviewed (“2023 Mid-Year Progress Report”). [17]
14. On March 13, 2023, the Parents issued a third TDN to the CSE (“TDN-3”), which iterated the concerns and allegations set forth in the TDN and TDN-2; and further advised that the Student’s placement would continue at the Private School (together, the “TDN(s)”). [18]
15. On June 26, 2023, the Private School issued an End-of-Year Report for the 2022/2023 school year, which indicated that the Student continued to make steady gains and measurable progress across all academic areas; specifically, in Reading he improved his automatic word recognition, coding and morphemic analysis, and was able to effectively incorporate text evidence to support his responses during literary discussions; and in Writing he improved his spelling, and practiced specific revision strategies to improve his paragraph drafts. It was also reported that the Student required frequent information to be delivered at a slow pace; his work needed to be regularly reviewed; he needed to be taught explicitly in a highly structured learning environment with clear boundaries, predictable routines and expectations; and he required frequent 1:1 assistance to participate, attend to the Teacher during lessons, and to demonstrate his understanding in subsequent assignments or activities. (“2023 End-of-Year Report”). [19]
16. The Speech-Language Pathologist [Redacted], M.S., CCC-SLP issued a Mid-Year Speech and Language Remediation Report for 2022/2023 school year, which indicated that as result of his receptive language disorder and wavering attention, the Student requires significant support with language comprehension; he benefits from having information presented in small units of simple language, with consistent check-ins and visual supports to ensure comprehension and maintain focus; and he needs increased processing time, repetition, and multiple exposures to facilitate the retention of new material. [20]
17. The Speech-Language Pathologist [Redacted] issued an End-of-Year Speech and Language Remediation Report for 2022/2023 school year, which indicated that the Student demonstrated some progress in his receptive language skills through his application of compensatory strategies for word retrieval; and as exhibited by his understanding and retention of new concepts, he slightly improved his vocabulary when explicit connections to topics of interest were established. It was further reported that the Student continued to require a highly structured learning environment and consistent review of new concepts; and learned best when information was broken down into small units of explicit language and paired with multi-sensory experiences and visual aids. Continued language support was recommended to address his listening comprehension, higher-level thinking skills, word retrieval, organization and formulation of written and spoken words. [21]
18. The Petitioners’ proffered the Head Teacher [Redacted] as a witness, who holds a Master’s in Literacy Education; Bachelor’s in Special Education; and New York State (“NYS”) Certification for Students with Disabilities (1-6).
19. The Head Teacher testified that the Private School is a special education school for bright students with primarily language-based learning disabilities and attentional challenges; and during the 2022/2023 school year there were approximately threehundred-eighty (380) students in attendance, aged four through fourteen (4-14), many of whom presented with ADHD and Dyslexia. The Head Teacher confirmed that informal assessments were conducted of the Student at the beginning of the 2022/2023 school year, and formal assessments were conducted during the course of the year to track his progress and growth in his placement at the Private School, which ranged in size depending on the subject-matter grouping from 12:1+2 for his Writing class to 7:1+1 for Math. The Head Teacher testified regarding the Student’s strengths, weaknesses and challenges with writing, reading, comprehension, retention, attentiveness, dysregulation, executive functioning, receptive language and expressive language skills; and described the varying teaching methodologies and approaches, areas of instruction, curriculum modifications, tools and strategies employed to address specific goals that were developed by the Private School team of educators for implementation in his scheduled classes and related services programs at the Private School; including, inter alia , Orton Gillingham, Singapore Math, RULER program, and Judith Hochman's Writing Revolution. The Head Teacher provided specific examples of the Student’s progress in Reading, Writing and Math, many of which were as described, supra , in the 2023 Mid-Year Progress Report and 2023 End-of-Year Report, and testified to as an accurate representation thereof. [22]
20. During cross-examination, the Head Teacher testified that although the Student does not have behavioral issues related to aggression, malintent or defiance; however, he requires placement in a small class, together with teacher redirection provided quite often, due to his dysregulation that can be disruptive in the classroom; which included leaving his seat, looking through materials, calling out, and making off-topic remarks; all of which can be monitored more closely to provide preemptive support to the Student, instead of reactive, before he becomes distracting. The Head Teacher further testified that due to his significant attentional issues the Student would be extremely exacerbated and distracted by his peers in a larger more chaotic classroom, which has more movement, people and noise; and the small student/teacher ratio is crucial for providing him with the level of individualized instruction that he needs to meet his academic learning goals. Subsequent to testifying as to her familiarity with the 2020 Neuropsychological Report, which indicated that the Student had either borderline to high-average intellectual functioning, the Head Teacher clarified that cognitive abilities do not necessarily impact learning disabilities or dictate the classroom size needed. [23]
21. The Petitioners proffered the Parent as a witness, who provided testimony during her direct and cross-examination regarding the Student’s Diagnoses, strengths, weaknesses, and educational history. The Parent confirmed that she attended the June 2022 CSE Meeting; and that the District was provided with a copy of the 2020 Neuropsychological Evaluation, which recommended a ‘very specific curriculum that involved Orton Gillingham instruction . . . a special education school . .. and a lot of additional support to deal with his attention.’ The Parent testified that the June 2022 CSE Team discussed how far below grade-level the Student was in Reading and Math; his challenges in a larger class size, even with ten (10) students; and how individualized, small-group instruction is so important and critical to the Student’s progress. The Parent testified that she expressed her concerns thereat and disagreed with the ICT recommendation; and although they received the SLL, the Parents never received the June 2022 IEP. Subsequent to which, the Parents contacted the 2022 Recommended Placement and was eventually able to visit the site when the school commenced; however, the Parent testified that she had concerns for the Student regarding the proposed curriculum, which did not include the only method he was able to learn from, Orton Gillingham; the reading level was too advanced for the Student to participate academically; and the classroom size, which was larger than the twenty (20) that he had previously struggled with, and he would have completely distracted and unable to maintain his attention. The Parent authenticated the TDN(s); and testified that the District never responded by offering the Student an appropriately sized classroom and placement, which she would have considered. The Parent testified that she executed the Enrollment Contract in February 2022 because they needed to reserve a place for the Student to learn, if the District’s recommended placement was not appropriate for him. The Parent opined that the Student made a ‘lot of progress’ during the 2022/2023 school year; specifically, his reading improved significantly, he learned more vocabulary, coping and self-advocacy skills. [24]
VI. CONCLUSIONS OF LAW AND DISCUSSION
This Hearing Officer will examine the facts established by documentary and testimonial evidence contained in the Hearing Record; and determine the proper application of Federal and State Regulations, Statutes and Caselaw, to render a Decision that discusses the following, as applicable to the 2022/2023 school year, whether: (1) the District failed to timely develop an IEP; (2) the District failed to consider sufficient evaluative data; (3) the District failed to develop an appropriate IEP; (4) the District failed to recommend an appropriate placement; (5) the District met its statutory burden of proof, production and persuasion relating to the alleged denials of FAPE; and (6) equitable considerations favor Tuition funding by the District.
A. IDEA
The IDEA’s purpose is “to ensure that all children with disabilities have available to them a free appropriate public education.” T.K. v. N.Y.C. Dep’t of Educ. , 810 F.3d 869, 875, (2d Cir. 2016); citing 20 U.S.C. § 1400(d)(1)(A). More particularly, the IDEA seeks to ensure that (1) 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) the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B); Forest Grove Sch. Dist. v. T.A. , 557 U.S. 230, 238-239 (2009); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley , 458 U.S. 176, 206-07 (1982). The Second Circuit finds that, “[i]n practice, this means that [the Districts] have an affirmative obligation to provide a basic floor of opportunity for all children with disabilities, … described [as] an education likely to produce progress, not regression, and one that affords the student with an opportunity greater than mere trivial advancement.” T.K. , 810 F.3d 869, 875; Cerra v. Pawling Cent. Sch. Dist. , 427 F.3d 186, 195 (2d Cir. 2005); quoting Walczak v. Fla. Union Free Sch. Dist. , 142 F.3d 119, 130 (2d Cir. 1998); see T.P. v. Mamaroneck Union Free Sch. Dist ., 554 F.3d 247, 254 (2d Cir. 2009); P. v. Newington Bd. of Educ. , 546 F.3d 111, 118-19 (2d Cir. 2008).
The centerpiece of the IDEA and its principal mechanism for achieving the goal of “a basic floor of opportunity for all children with disabilities” is the IEP. Honig v. Doe , 484 U.S. 305, 311 (1988); D.S. v. Bayonne Bd. of Educ. , 54 IDELR 141 (2010); quoting Polk v. Cent. Susquehanna Intermediate Unit, 16 , 853 F.2d 171, 173 (3d Cir. 1988). The IEP is the means by which special education and related services are tailored to the unique needs of a particular child. Endrew F. v. Douglas Cty. Sch. Dist. RE-1 , 137 S. Ct. 988, 994 (2017); quoting, Rowley , 458 U.S. 176, 181. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak , 142 F.3d 119, 130; see Rowley , 458 U.S. 176, 203. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” Walczak , 142 F.3d 119, 132; quoting Tucker v. Bay Shore Union Free Sch. Dist ., 873 F.2d 563, 567 (2d Cir. 1989).
B. FAPE
FAPE must be offered to each Student with a disability residing in the District who requires special education services or programs. 20 U.S.C. §1412(a)(1)(A); Educ. Law §4402(2)(a)(b)(2). The 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. 176, 203. 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. 176, 206-207; 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 , 427 F.3d 186, 192. However, under the IDEA, a substantive violation may arise where the substantive content, such as the educational services, contained in the IEP, is insufficient to afford FAPE; and procedural violations may occur when the District fails to comply with the IDEA’s process-based requirements.
The IDEA directs that a two-part inquiry must be made based on substantive grounds and procedural inadequacies, to determine whether a Student received a FAPE. 20 U.S.C. §1415(f)(3)(E). At the first step, Courts examine whether there were procedural violations of the IDEA, namely, “whether the state has complied with the procedures set forth in the IDEA.” Cerra, 427 F.3d 186, 192. If procedural violations are alleged, then a determination is made that the Student did not receive a FAPE, only if the District’s alleged 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 his/her educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. 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 167, 190; M.H. , 685 F.3d. 217, 245; A.C. v. Bd. of Educ. , 553 F.3d 165, 172 (2d Cir. 2009). Courts then examine whether the IEP was substantively adequate, namely, whether it was “reasonably calculated to enable the child to receive educational benefit[s].” Cerra, 427 F.3d 186, 192; quoting, Rowley, 458 U.S. 176, 206-
07. Since Rowley , Courts have generally viewed violations of FAPE as substantive when they involve:
(1) content, adequacy and compliance with an IEP;
(2) implementation of the IEP; or (3) failure to educate in the least restrictive learning environment. Substantive inadequacy automatically entitles the Parents to reimbursement. As discussed more fully infra , an examination was undertaken by this Hearing Officer to determine whether the Student’s right to a FAPE was procedurally and/or substantively hindered by the District, during the 2022/2023 school year.
C. IEP
The centerpiece for the implementation of FAPE is the IEP. S.H. v. State-Operated Sch. Dist. of the City of Newark , 336 F.3d 260, 264 (3d Cir. 2003). An appropriate educational program begins with an IEP, which includes a statement of the student’s present levels of academic achievement and functional performance (34 C.F.R. 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ. , 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008); establishes annual goals designed to meet the student’s needs resulting from the student’s disability and enables him or her to make progress in the general education curriculum 34 C.F.R. 300.320(a)(2)(i); 34 C.F.R. 300.320(2)(i)(A); 8 NYCRR 200.4(d)(2)(iii); and provides for the use of appropriate special education services. 34 C.F.R. 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v)(6). The Supreme Court has indicated 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. , 137 S. Ct. 988, 999. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created”. Endrew F. , 137 S. Ct. 988, 1001. 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); Endrew F. , 137 S. Ct. 988, 1001 (the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”); Rowley , 458 U.S. 176, 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 C.F.R. 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc); 8 NYCRR 200.6(a)(1); Newington , 546 F.3d 111, 114; Gagliardo v. Arlington Cent. Sch. Dist. , 489 F.3d 105, 108 (2d Cir. 2007); Walczak , 142 F.3d 119, 132. However, in order to determine whether a Student is eligible to receive a FAPE under the IDEA, the District must first conduct an initial evaluation to identify the Student’s educational needs. 20 U.S.C. § 1414(a)(1)(A); 34 C.F.R. 300.301(a). Thereafter, the District must develop and recommend an IEP, which reflects the evaluation results (8 NYCRR § 200.4(d)(2)(i)); classifies the Student under one disability category (34 C.F.R. 300.641(c)); and “include[s] special education and related services tailored to meet the unique needs of a particular child and be reasonably calculated to enable the child to receive educational benefits.” Frank G. v. Dd. Of Educ. Of Hyde Park , 459 F.3d 356, 363 (2d Cir. 2006).
The IDEA directs that, in general, this 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). The 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. 176, 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 119, 130; see Rowley , 458 U.S. 176, 203. “The adequacy of a given [IEP] turns on the unique circumstances of the child for whom it was created”. Endrew F. , 137 S. Ct. 988, 1001. The IDEA’s purpose is “to ensure that all children with disabilities have available to them a free appropriate public education.” T.K. , 810 F.3d 869, 875, citing 20 U.S.C. § 1400(d)(1)(A). Therefore, to provide a FAPE, an IEP developed by the District must be reasonably calculated to enable the Student to receive educational benefits.
a. DEVELOPMENT OF IEP
It is widely held that Federal and State regulations each require that in order to meet its legal obligations, the District must have an IEP in effect at the beginning of each school year for each child with a disability in its jurisdiction. 34 CFR 300.323(a); 8 NYCRR 200.4(e)(1)(ii); Cerra , 427 F.3d 186, 194; K.L. v. New York City Dep’t of Educ. , 2012 WL 4017822, at *13 (S.D.N.Y. Aug. 23, 2012), aff’d , 530 Fed. App’x 81 (2d Cir. 2013); B.P. v. New York City Dep’t of Educ. , 841 F. Supp.2d 605, 614 (E.D.N.Y. 2012); Tarlowe , 2008 WL 2736027, at *6. In accordance therewith, the IDEA requires a CSE to review and, if necessary, revise the Student’s [IEP] at least annually. 20 U.S.C. §1414(d)(4)(A); 34 CFR 300.324(b)(1); 8 NYCRR 200.4(f). In addition, Federal and State Regulations mandate that the CSE must revise the Student’s IEP, as necessary, to address “[i]nformation about the child provided to, or by, the Parent during the course of a reevaluation of the Student. 34 CFR 300.324(b)(1)(ii)(C); 8 NYCRR 200.4(f)(2)(ii); and State Regulations provide that, if parents believe that their child’s placement is no longer appropriate, they “may refer the student to the [CSE] for review”. 8 NYCRR 200.4(e)(4). State Regulations further provide that, if appropriate, an IEP must be revised to address “any lack of expected progress toward the annual goals and in the general education curriculum . . . the results of any reevaluation conducted . . . and any information about the student provided to, or by, the parents . . . or . . . the student’s anticipated needs.” 8 NYCRR 200.4(f)(2)(i-iii).
i. TIMELY DEVELOPMENT of IEP – JUNE 2022
The Parents assert that the District’s failure to timely develop an IEP for the Student, subsequent to the June 2022 CSE Meeting constituted a denial of FAPE for the 2022/2023 school year.
The Hearing Record confirms the Parent’s attendance at the June 2022 CSE Meeting; the documented concerns she raised thereat regarding the proposed ICT program, the inherent problems associated with a larger class size and the resulting distractions therefrom; and testimony that although she received the SLL, she never received a copy of the June 2022 IEP contemporaneously therewith and/or thereafter. It is well regarded that “[w]hen a child requires special-education services, a school district’s failure to propose an IEP of any kind is at least as serious a [procedural] violation of its responsibilities under IDEA as a failure to provide an adequate IEP.” Forest Grove , 557 U.S. 230, 238-239. Here, absent any documentary and/or testimonial evidence proffered by the District, the Hearing Record is bereft of any indication that the June 2022 IEP was timely developed and/or provided to the Parents prior to commencement of the 2022/2023 school year. Consequently, it is this Hearing Officer’s determination, in accordance with the findings of Doe v. E. Lyme Bd. of Educ. , 790 F.3d 440, 450 (2d Cir. 2015); quoting Forest Grove , 557 U.S. 230, 238-239, that the District’s failure to timely develop and/or provide an IEP prior to commencement of the 2023/2024 school year, constituted a procedural violation of the IDEA.
ii. APPROPRIATE DEVELOPMENT of IEP – NOVEMBER 2022
The Parents assert that failure to develop an appropriate IEP subsequent to the November 2022 CSE Meeting constituted a denial of FAPE for the 2022/2023 school year.
In developing recommendations for a student’s IEP, the CSE must consider the results of the initial or most recent evaluation; the student’s strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the student’s performance on any general State or district-wide assessment; as well as, any special factors as set forth in Federal and State regulations. 34 CFR 300.324(a); 8 NYCRR 200.4(d)(2). As to be discussed more fully infra , the Hearing Record reflects that during the November 2022 CSE Meeting, the District had access to the 2020 Neuropsychological Report, which determined that the Student presented with certain challenges ensuing from his Diagnoses, including, reading comprehension, spelling, receptive and expressive language, attentiveness, dysregulation and executive functioning. Notably however, subsequent to providing only a cursory listing of the Student’s Diagnoses, the District did not obtain or otherwise reference any other evaluations, findings and/or opinions of other psychological-based assessments that were considered or conducted of the Student; the results of which would have lent a more adept guidance to the November 2022 CSE Team in its efforts to develop recommendations for an educational program and placement suitable for handling his unique needs during the 2022/2023 school year.
1. SUFFICIENCY of EVALUATIONS and ASSESSMENTS
Prior to the development of an IEP, the child must be evaluated to determine whether a need for special education exists. Evaluations are a foundational tool by which students are determined [or not] to be eligible for special education and related services under the IDEA. An evaluation of a student must be sufficiently comprehensive to identify all of the student’s special education and related services’ needs, whether or not commonly linked to the disability category in which the student has been classified. 34 C.F.R. 300.304(c)(6); 8 NYCRR 200.4(b)(6)(ix). An initial evaluation of a student must include a physical examination, a psychological evaluation, a social history, a classroom observation of the student, and any other “appropriate assessments or evaluations” as necessary to determine factors contributing to the student’s disability. 8 NYCRR 200.4(b)(1). Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental and academic information about the student, including information provided by the parent that may assist in determining, among other things the content of the student’s IEP. 20 U.S.C. § 1414(b)(2)(A), (B); 34 CFR 300.304(b)(1)(ii); Letter to Clarke , 48 IDELR 77 (OSEP 2007). The District must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. 20 U.S.C. § 1414(b)(2)(C); 34 CFR 300.304(b)(3); 8 NYCRR 200.4(b)(6)(x).
The District may elect to conduct additional evaluations or assessments to appropriately assess the Student in all areas related to the suspected disabilities. 8 NYCRR 200.4(b)(3). However, Federal and State Regulations mandate that the District must conduct an evaluation of a Student where the educational or related services needs of a Student warrant a reevaluation or if the Student’s Parents or Teacher requests a reevaluation. 34 C.F.R. 300.303(a); 8 NYCRR 200.4(b)(4). While a District need not conduct a reevaluation more frequently than once per year unless the Parent and the District agree otherwise. 34 CFR 300.303(b)(1); a reevaluation of a student with a disability must be conducted by a multidisciplinary team or group that includes at least one teacher or specialist with knowledge in the area of the Student’s disability. 8 NYCRR 200.4(b)(4). The reevaluation must be “sufficient to determine the Student’s ability to participate in instructional programs in regular education and the Student’s continuing eligibility for special education.” 8 NYCRR 200.4(b)(5). Therefore, whether it was an initial evaluation or a reevaluation, the District was obligated to ensure that the Student was aptly assessed in relation to his disability, including, where appropriate, social and emotional status. 20 U.S.C. § 1414(b)(3)(B); 34 CFR 300.304(c)(4); 8 NYCRR 200.4(b)(6)(vii).
Pursuant to the Federal and State procedures for determining a student’s eligibility and educational needs, a “[CSE] and other qualified individuals must draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the student’s physical condition, social or cultural background, and adaptive behavior.” 8 NYCRR 200.4(c)(1); 34 CFR 300.306(c)(i). Further, either an independent educational evaluation (“IEE”) obtained at public expense or a private evaluation obtained at private expense “[m]ust be considered by the school district, if it meets the school district’s criteria, in any decision made with respect to the provision of a [FAPE] for the student.” 8 NYCRR 200.5(g)(1)(vi)(a); 34 CFR 300.502(c)(1). Although the CSE is required to consider reports from privately retained experts, it is not required to adopt their recommendations. G.W. v. Rye City Sch. Dist. , 2013 WL 1286154, at *19 (S.D.N.Y. Mar. 29, 2013); C.H. v. Goshen Cent. Sch. Dist. , 2013 WL 1285387, at *15 (S.D.N.Y. Mar. 28, 2013); T.B. v. Haverstraw-Stony Point Cent. Sch. Dist. , 933 F. Supp. 2d 554, 571 (S.D.N.Y. 2013); Watson v. Kingston City Sch. Dist. , 325 F. Supp. 2d 141, 145 (N.D.N.Y. 2004) (noting that even if a district relies on a privately obtained evaluation to determine a student’s levels of functional performance, it need not adopt wholesale the ultimate recommendations made by the private evaluator). However, the CSE is obligated to take under consideration critical information and evaluative material that would facilitate the proper development of an IEP for the Student.
a. INDEPENDENT EVALUATIVE DATA
The Parents assert that the District’s failure to fully consider the independent 2020 Neuropsychological Evaluation contributed to a denial of FAPE for the 2022/2023 school year.
The Hearing Record evinces the CSE’s awareness that the Student presented with challenges in writing, reading, comprehension, retention, attentiveness, dysregulation, executive functioning, receptive and expressive language, which negatively impacted his ability to focus, complete tasks, self-advocate or make appropriate academic progress in class. Nevertheless, the Hearing Record does not reflect that the independent evaluative findings, recommendations and/or opinions of the 2020 Neuropsychological Evaluation were adopted into the November 2022 IEP. More particularly, the Neuropsychologist and Psychologist recommended, inter alia , that the Student should continue to attend his ‘specialized school’, as he requires ongoing remedial, multisensory teaching strategies to develop his decoding and spelling skills, in classrooms that are small and highly structured. Therefore, it was incumbent upon the District to offer evidence during the Hearing that the Student could receive an educational benefit under the Recommended Program at the Recommended Placement, without, also incorporating into the November 2022 IEP, a recommendation for educational and supportive services to be provided in a small, highly-structured special classroom setting.
When determining whether an [IEP] was substantively adequate, a determination must be made as to whether the [IEP] was “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. 176, 207. However, the District neither presented any testimonial evidence nor additional evaluative materials it relied upon during the November 2022 CSE Meeting, which established how the Student could benefit from the recommendations set forth in the November 2022 IEP. Hence, the District’s failure to fully consider the evaluative data provided by the 2020 Neuropsychological Evaluation, and/or to obtain alternate evaluative data, thwarted the CSE’s ability to recommend an appropriate educational placement with sufficient specialized instruction and/or methodologies for the Student, in relation to his unique needs and challenges. Fundamentally, the absence of sufficient evaluative data and information used and/or considered by the District during the November 2022 CSE Meeting, which could have addressed the management needs and/or individualized techniques required to educate the Student, reasonably raises questions as to the appropriateness of the IEP that was developed and special educational programs, placements and provisions that were recommended thereunder to address his needs. “ R.E. stands for the unremarkable proposition that when the reports and evaluative materials present at the CSE meeting yield a clear consensus, an [IEP] formulated for the child that fails to provide services consistent with that consensus is not ‘reasonably calculated to enable the child to receive educational benefits’” A.M. v. N.Y.C. Dep’t of Educ. , 845 F.3d 523, 543 (2d. Cir. 2017); quoting , Rowley, 458 U.S. 176, 207.
Consequently, it is the determination of this Hearing Officer that the District’s failure to reasonably consider the 2020 Neuropsychological Evaluation is regarded as a serious procedural violation, which prevented the November 2022 CSE Team from obtaining information necessary to properly assess the Student and identify strategies to address his unique needs and challenges. It is this Hearing Officer’s further determination that the District failed in its obligation to consider all evaluative data available and/or to ensure that the Student was fully and appropriately evaluated and assessed in all areas related to his Diagnoses, prior to conducting the November 2022 CSE Meeting and thereafter prior to developing the November 2022 IEP, which included the 2022 Recommended Program and 2022 Recommended Placement. Subsequent to its failure to adequately defend against the alleged denial of FAPE, the District also failed to address its burden of proving that the November 2022 IEP did not require further redress to appropriately meet the Student’s unique needs arising from his (dis)abilities. Therefore, having acted in opposition to certain statutory requirements, including, inter alia , 20 U.S.C. §1414(b)(3)(B); 34 CFR 300.304(c)(4); 8 NYCRR 200.4(b)(6)(vii), the Hearing Record supports a finding that the procedural deficiencies and substantive violations caused by the District’s inactions resulted in a deprivation of the Student’s educational benefits and impeded his right to a FAPE for the 2022/2023 school year.
2. APPROPRIATENESS OF PROGRAM/PLACEMENT
The Parents assert that the District’s failure to provide an appropriate program and placement contributed to and constituted a denial of the Student’s FAPE.
While the IDEA requires parental participation in determining the educational placement of a child (34 CFR §§ 300.116, 300.327, 300.501(c)); however, ultimately it is the program of specialized instruction and related service contained in the Student’s IEP that forms the basis for the placement decision. Accordingly, program and “placement decisions must be individually determined on the basis of each child’s abilities and needs and each child’s IEP, and not solely on factors such as . . . availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience”. Reusch v. Fountain , 872 F. Supp. 1421, 1425-26 (D. Md. 1994); Placements , 71 Fed. Reg. 46588 (August 14, 2006); 34 CFR 300.116(b)(2); 8 NYCRR 200.6(a)(2); T.M. , 752 F.3d 145, 163 (finding that the IDEA’s LRE requirement is not limited, in the extended school year context, by what programs the school district already offers, but rather must be based on the student’s needs); Adams v. State , 195 F.3d 1141, 1151 (9th Cir. 1999).
i. RECOMMENDED PROGRAM
The IDEA proscribes that the Student is entitled to an IEP, which recommends an appropriate program that offers the requisite interventions and accommodations required to promote progress and support academic progression in an appropriate educational placement. Therefore, an appropriate educational program begins with an IEP, which includes a statement 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); Tarlowe , 2008 WL 2736027, at *6); establishes annual goals designed to meet the student’s needs resulting from the disability and enables him or her to make progress in the general education curriculum); 34 CFR 300.320(a)(2)(i); 34 CFR 300.320(2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)); and provides for the use of appropriate special education services. 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v)(6). Under NYS Law, the Commissioner of Education may approve the provision of “special services or programs” to students with disabilities through a variety of methods, including contracts entered into by boards of education of public schools and private non-residential schools within the State. Educ. Law §§4401(2)(e), 4402(2)(a); 8 NYCRR 200.1(d); 8 NYCRR 200.7. It is the individualized needs of all students with disabilities in a District, which will ultimately determine which special education services shall be rendered by an approved private provider. Educ. Law §4402(2)(a). Accordingly, the Student’s placement must be individually determined based on the Student’s abilities and needs; and to the extent necessary to offer the Student an appropriate educational program, his/her IEP must identify the supplementary aids and services to be provided to the Student. 20 U.S.C. §1414(d)(1)(A)(i)(IV); 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v)(a); 8 NYCRR 200.4(d)(2)(v) (b)(3); Piazza v. Florida Union Free Sch. Dist. , 777 F. Supp. 2d 669, 673 (S.D.N.Y. 2011); Gavrity v. New Lebanon Cent. Sch. Dist. , 2009 WL 3164435, at *30 (N.D.N.Y. 2009) (discussing the student’s IEP which appropriately identified program modifications, accommodations, and supplementary aids and services).
As discussed more fully, infra , in the absence of a sufficiently stated IEP, the District failed to offer the Student a program that could confer a meaningful educational benefit in relation to his individual needs and (dis)abilities; and/or could otherwise be deemed appropriate or reasonably calculated to enable him to make progress in light of his unique circumstances. In addition, the District failed to proffer any testimonial or documentary evidence, which lends credence to a contention that the Recommended Program would have appropriately addressed the Student’s unique needs. Consequently, it is this Hearing Officer’s determination that the Student was entitled to an appropriate educational placement in a supportive educational program, which offered the requisite interventions and accommodations that were reasonably calculated to enable the Student to receive educational benefits to address his academic needs and executive-functioning challenges.
1. INTEGRATED CO-TEACHING
ICT services are defined as “specially designed instruction and academic instruction provided to a group of students with disabilities and nondisabled students” in a classroom staffed ‘minimally’ by a “special education teacher and a general education teacher.” 8 NYCRR 200.6(g). Whereas, ‘specially designed instruction’ is defined as “adapting, as appropriate to the needs of an eligible student . . . the content, methodology, or delivery of instruction to address the unique needs that result from the student’s disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students.” 8 NYCRR 200.1(vv); 34 CFR 300.39(b)(3). ICT services provide the delivery of primary instruction to all of the students attending such a setting. Continuum of Special Education Services for School-Age Students with Disabilities , at pp. 14-15, (OSEP, Nov. 2013). [25] The Supreme Court has held that in order for the District to meet its substantive obligation under the IDEA, 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. 988, 1000); J.R. v. New York City Dep’t of Educ ,(2017 WL 3446783, at *22. (E.D.N.Y. Aug. 10, 2017).
During the June 2022 CSE Meeting, and November 2022 CSE Meeting (together, the “2022 CSE Meeting(s)”) and in each of the TDN(s), the Parents expressed their concerns relating to the recommended ICT placement. More particularly, the Parents advocated that the proposed placement would not be appropriate for the Student on the basis that, inter alia , the ICT class followed the 4 th grade general education common core curriculum and reading pace, which the Student had not yet reached, as he was still at the 2 nd and 3 rd grade-level; he required intensive reading instruction using Orton Gillingham, which was not the primary method of teaching thereat; and a classroom consisting of twenty (20) students would be too large and distracting for the Student who had difficulty maintaining attention in smaller classrooms with ten (10) students. Further advising the CSE that the Student continued to require a small, full-time special education school where he can be placed in small classes with a high-teacher-to-student ratio, a fully modified curriculum, and significant 1:1 support. This notwithstanding, the Hearing Record corroborates the Parents’ contention that the District failed to recommend an appropriate program, due to its failure to create an IEP, which contained adequate evaluations of the Student and/or fully considered the recommendations and opinions contained in the 2020 Neuropsychological Report. As discussed supra , the District failed to develop an IEP, which recommended a placement or program that would support the Student’s unique needs and challenges. Accordingly, upon full review and due consideration, it is this Hearing Officer’s finding that this Student, (i) whose Diagnoses included Mixed ReceptiveExpressive Language Disorder; ADHD, Combined Type; SLD in Reading; and DCD a/k/a Dyspraxia; and (ii) who continued to display academic and executive-functioning challenges; was entitled to but did not receive an appropriate educational program, which provided the requisite level of educational support to address his unique needs, in accordance with the recommendations set forth in the 2020 Neuropsychological Report and/or the 2022 Private School Progress Report. Consequently, it is this Hearing Officer’s determination that the 2022 Recommended Program as set forth in the June 2022 IEP and November 2022 IEP (the “2022 IEP(s”) denied the Student’s FAPE for the 2022/2023 school year; and as discussed more fully, infra , the Student is entitled to an appropriate educational placement in a full-time supportive special education program, which offers the requisite interventions and accommodations.
ii. RECOMMENDED PLACEMENT
The IDEA requires not only an appropriate IEP, but “placement in a school that can fulfill the requirements set forth in the IEP.” D.C. v. N.Y.C. Dep’t of Educ. , 950 F. Supp. 2d 494, 509 (S.D.N.Y. 2013). The USDOE has noted that it “referred to ‘placement’ as points along the continuum of placement options available for a child with a disability, and ‘location’ as the physical surrounding, such as the classroom, in which a child with a disability receives special education and related services”. Placements , 71 Fed. Reg. 46588. This view is consistent with an Office of Special Education Programs (“OSEP”) opinion, which indicates that the assignment of a particular school is an administrative decision provided it is made in conformance with the CSE’s educational placement recommendation. Letter to Veazey , 37 IDELR 10 (OSEP 2001); White v. Ascension Parish Sch. Bd. , 343 F.3d 373, 379 (5th Cir. 2003); Veazey v. Ascension Parish Sch. Bd. , 2005 WL 19496 (5th Cir. 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). Although parents may prefer a particular class ratio, districts are not necessarily required to replicate the identical setting used in private schools. Watson , 325 F. Supp. 2d 141, 145; Z.D. v. Niskayuna Cent. Sch. Dist. , 2009 WL 1748794, at *6 (N.D.N.Y. June 19, 2009); M.C. v. Mamaroneck Union Free Sch. Dist. , 2018 WL 4997516, at *28 (S.D.N.Y. Sept. 28, 2018).
Categorically, there is no requirement in the IDEA that the IEP name a specific school location; T.Y. v. New York City Dep’t of Educ. , 584 F.3d 412, 420 (2d Cir. 2009); and parents generally do not have a procedural right in the specific geographical placement of their child. 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. , 2013 WL 625064, at *10; R.E. , 694 F.3d 167, 191-92 (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) (parents are not procedurally entitled to participate in decisions regarding public-school site selection). However, the District is required to notify the Parent of the name and location of the special education program and related services, prior to or contemporaneous with the implementation date of Student’s services. T.C. v. New York City Dep’t of Educ. , 2016 WL 1261137, at *9 (S.D.N.Y. Mar. 30, 2016) (the parent must necessarily receive some form of notice of the school placement by the start of the school year); see also , Tarlowe , 2008 WL 2736027, at *6. (District’s delay does not violate the IDEA so long as a public-school site is found before the beginning of the school year). As a result, State and Federal regulations mandate that the District provide parents of a student with a disability with a PWN “a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, educational placement of the student or the provision of a [FAPE] to the student.” 34 CFR 300.503(a); 8 NYCRR 200.1(oo); 8 NYCRR 200.5(a)(1). Pursuant thereto, the PWN must include a description of the action proposed or refused by the District; an explanation of why the District proposed or refused the action; a description of the other options that the CSE considered and the reasons why those options were rejected; a description of each evaluation procedure, assessment, record or report the CSE used as a basis for the proposed or refused action; and a description of the other factors relevant to the CSE’s proposal or refusal. 34 CFR 300.503(b); 8 NYCRR 200.5(a)(3).
Traditionally, the Student’s assignment to a particular school must be made by the District, subsequent to a CSE meeting and in conformity with the IEP recommendation. M.O. v. New York City Dep’t of Educ. , 793 F.3d 236, 244-45 (2d Cir. 2015); and relatedly, New York District Courts indicate that the Parent has a right thereafter to timely obtain information about an assigned public-school site from the District. 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. , 2015 WL 5564446, at *11-*18 (S.D.N.Y. Sept. 21, 2015) (parents “had at least a procedural right to inquire whether the proposed school location had the resources set forth in the IEP”); C.U. v. N.Y. City Dep’t of Educ. , 23 F.Supp.3d 210, 295, 2014 WL 2207997, at *14-*16 (S.D.N.Y. 2014) (“parents have the procedural right to evaluate the school assignment [and] acquire relevant information about” it).
Here, the SLL, June 2022 IEP and November 2022 IEP dictated that the Student should attend the 2022 Recommended Placement, which in the absence of other current evaluative data, was not in accord with the Neuropsychologist’s and Psychologist’s recommendation that the Student required placement within a small highly-structured classroom, where he could receive ongoing remedial, multisensory teaching strategies to develop his skills. The Hearing Record evinces that the District was fully abreast of the Student’s unique needs yet failed to offer a placement during the 2022/2023 school year, which could provide him with an appropriate special education setting to appropriately address the challenges underlying his Diagnoses. Subsequent to which, the District failed to offer any documentary or testimonial that served to prove or otherwise substantiate the appropriateness of the recommended program and/or placement offered to the Student for the 2022/2023 school year.
3. MEANINGFUL PARTICIPATION
The Parents contend that they were denied a meaningful opportunity to participate in the processes relating to the development of the Student’s IEP for the 2022/2023 school year.
It is widely held that parents are an integral participant in the development of an IEP. The IDEA sets forth procedural safeguards that include providing parents an opportunity “to participate in meetings with respect to the identification, evaluation, and educational placement of the child.” 20 U.S.C. § 1415(b)(1). As articulated by the Supreme Court, “Parents and guardians play a significant role in the IEP process. They must be informed about and consent to evaluations of their child under the Act. § 1414(c)(3). Parents are included as members of ‘IEP Teams’ §1414(d)(1)(B). They have the right to examine any records relating to their child, and to obtain an ‘independent educational evaluation of the[ir] child.’ § 1415(b)(1). They must be given prior written notice of any changes in an IEP, § 1415(b)(3), and be notified in writing of the procedural safeguards available to them under the Act, § 1415(d)(1).” Schaffer , 546 U.S. 49, 53.
Parental participation at IEP meetings must be “meaningful”. Deal v. Hamilton County Board of Education, 392 F.3d 840, 853 (6th Cir. 2005). Federal and State Regulations governing parental participation require that school districts take steps to ensure that parents are present at their child’s CSE meetings or are afforded the opportunity to participate. 34 CFR 300.322; 8 NYCRR 200.5(d). When determining whether a District complied with the IDEA’s procedural requirements, the inquiry focuses on whether the parents “had an adequate opportunity to participate in the development” of their child’s IEP. Cerra , 427 F.3d 186, 192; E.H. , 164 F. Supp. 3d 539, 552 (finding that the CSE was required to consider the parent’s point of view that the student needed to be educated in the setting he was currently attending). Notably, the IDEA can neither “guarantee that parents [] fully comprehend and appreciate to their satisfaction all of the pedagogical purposes in the IEP” ( Colonial Sch. Dist. v. G.K. by and through A.K. , 763 F. App’x 192, 198 (3d Cir. 2018)); nor “mandate that [their] parental preferences guide educational decisions.” M.M. v. Dist. 00001 Lancaster Cnty. Sch. , 702 F.3d 479, 488 (8th Cir. 2012). However, the IDEA nonetheless “establishes various procedural safeguards that guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate.” Honig , 484 U.S. 305, 311-12; Rowley , 458 U.S. 176, 205, (describing IDEA’s procedural protections as “giving parents and guardians a large measure of participation at every stage of the administrative process”).
Although the District must provide an opportunity for parents to participate in the development of their child’s IEP, mere parental disagreement with a school district’s proposed IEP and placement recommendation does not amount to a denial of meaningful participation. T.F. v. New York City Dep’t of Educ. , 2015 WL 5610769, at *5 (S.D.N.Y. Sept. 23, 2015); E.F. v. New York City Dep’t of Educ. , 2013 WL 4495676 at *17 (E.D.N.Y. Aug. 19, 2013) (stating that “as long as the parents are listened to,” the right to participate in the development of the IEP is not impeded, “even if the [District] ultimately decides not to follow the parents’ suggestions”); P.K. v. Bedford Cent. Sch. Dist. , 569 F. Supp. 2d 371, 383 (S.D.N.Y. 2008) (“A professional disagreement is not an IDEA violation”); Sch. for Language & Commc’n Dev. v. New York State Dep’t of Educ. , 2006 WL 2792754, at *7 (E.D.N.Y. Sept. 26, 2006) (“[m]eaningful participation does not require deferral to parent choice”). Additionally, it is well settled that the District’s consideration of possible recommendations for the Student prior to an IEP Meeting is not prohibited as long as the CSE Team understands that changes may occur at the IEP Meeting. T.P. , 554 F.3d 247, 253; A.P. v. New York City Dep’t of Educ. , 2015 WL 4597545 at *8- *9 (S.D.N.Y. July 30, 2015); 34 CFR 300.501(b)(1), (3); 8 NYCRR 200.5(d)(1), (2). The key factor with regard to predetermination is whether the District has “an open mind as to the content of [the Student’s] IEP.” T.P. , 554 F.3d 247, 253; D.D.-S. v. Southold Union Free Sch. Dist. , 2011 WL 3919040, at *10-*11 (E.D.N.Y. Sept. 2, 2011), aff’d 506 Fed. App’x 80 (2d Cir. Dec. 26, 2012); R.R. v. Scarsdale Union Free Sch. Dist. , 615 F. Supp. 2d 283, 294 (E.D.N.Y. 2009), aff'd , 366 Fed. App’x 239 (2d Cir. Feb. 18, 2010). Districts may “prepare reports and come with preformed opinions regarding the best course of action for the child as long as they are willing to listen to the parents, and parents have the opportunity to make objections and suggestions.” DiRocco v. Bd. of Educ. of Beacon City Sch. Dist. , 2013 WL 25959, at *18 (S.D.N.Y. Jan. 2, 2013); see also , M.M. , 583 F. Supp. 2d 498, 506; B.K. v. New York City Dep’t. Of Educ. , 12 F. Supp. 3d 343, 358-59 (E.D.N.Y. 2014) (holding that “active and meaningful” parent participation undermines a claim of predetermination).
Traditionally, the CSE is obligated to take under consideration critical information and evaluative material that would facilitate the proper development of an IEP for the Student. As indicated supra , with the exception of references to certain medical codes underlying the Student’s Diagnoses listed in the 2020 Neuropsychological Evaluation, the November 2022 IEP neither specified that any other documents nor evaluations were considered or conducted by the District prior to the November 2022 CSE Meeting. Noticeably absent were any substantive findings and/or opinions of the Neuropsychologist or Psychologist, who recommended placement for the Student in a small highly-structured classroom, together with remedial multisensory teaching strategies. Based thereon, absent alternate current psychological assessments, the District failed to incorporate the appropriate evaluative data required to properly assess the Student’s unique needs relating to his Diagnoses, the absence of which precluded the District from undertaking a comprehensive analysis of the Student prior or during the November 2022 CSE Meeting. Therefore, the District was prevented from reaching an accurate determination regarding the Student’s academic deficits and unique needs. This failure thwarted the District’s ability to possess the requisite “open mind” with respect to recommending an appropriate educational program and placement in relation to his (dis)abilities. Consequently, it is this Hearing Officer’s finding that the District effectively infringed upon the Parent’s ability to be involved in the Student’s educational programming, whilst impeding the Parent’s opportunity to meaningfully participate in the decision-making processes relating to the development of the Student’s IEP, which resulted in a procedural violation of the IDEA. F.B. , 2015 WL 5564446, at *11-*18; V.S. v. New York City Dep’t of Educ. , 25 F. Supp. 3d 295, 299-301 (E.D.N.Y. 2014); C.U. , 23 F.Supp.3d 210, 295. It is well-settled that procedural inadequacies that “seriously infringe the parents’ opportunity to participate in the IEP formulation process . . . clearly result in a denial of FAPE”; particularly whereas demonstrated here, the Parent was “accorded no more than after-the-fact, pro-forma participation in crafting [the] IEP.” R.L. v. Miami-Dade Cnty Sch. Bd. , 757 F. 3d 1173, 1189 (11 th Cir. 2014); citing , W.G. v. Bd. of Target Range Sch. Dist. , 960 F.2d 1479, 1484 (9th Cir.1992).
D. BURDEN OF PROOF
As a matter of general jurisprudence, the party with the burden of proof has the duty and obligation to prove or disprove a disputed fact; and under the IDEA, the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief. Schaffer , 546 U.S. 49, 59-62 (finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not). However, under New York State law, during an impartial hearing, the burden of proof has been placed on the school district, who bears the burden of proof, production and persuasion; 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 also , Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist ., 773 F.3d 372, 386 (2d Cir. 2014); C.F. ,746 F.3d 68, 76; R.E. , 694 F.3d 167, 184-85. More particularly, to determine whether the Parents are entitled to reimbursement of expenses incurred for the unilateral placement of a disabled child in an IDEA challenge to an [IEP], this Hearing Officer is guided by the three-step Burlington/Carter test: (1) first the District must establish that the placement and services offered by the [IEP] were neither inadequate, inappropriate nor denied the Student a FAPE; however, if the District fails to meet that burden, then the Parents are entitled to tuition reimbursement if (2) they establish that the Student’s unilateral placement was appropriate; and (3) that equitable considerations support the Parents’ claim. See , Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Town of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985).
The District is required under the due process procedures set forth by New York State law to address its burdens by describing its views, based on a fact-specific inquiry set forth in an evidentiary record. The District is tasked with establishing sufficient facts and introducing proper evidence to demonstrate that recommendations made based on the Student’s educational needs were appropriate. In order to meet its burden, the District must show (a) that it complied with the procedural requirements set forth in the IDEA; and (b) that the IEP developed for the Student is reasonably calculated to confer educational benefits to the Student. Rowley , 458 U.S. 176, 206-07; M.S. v. Bd. of Educ. , 231 F.3d 96, 102 (2d Cir. 2000), cert. denied , 532 U.S. 942 (2001). Here however, the Hearing Record is devoid of any persuasive testimonial or documentary evidence presented by the District, which explains why the (i) June 2022 IEP was not timely developed; (i) November 2022 CSE Meeting was held without fully evaluating the Student’s needs; (iii) District failed to develop an appropriate IEP; (iv) Recommended Program or Recommended Placement should be regarded as appropriate for the Student; or (v) District failed to sufficiently negate or otherwise refute the facts established in the Hearing Record or relief sought by the Parents. Accordingly, as demonstrated by the findings of fact and conclusions stated herein, it is this Hearing Officer’s determination, as set forth and discussed supra , that the District procedurally and substantively denied the Student a FAPE for the 2022/2023 school year.
E. UNILATERAL PLACEMENT
The Parents contend that subsequent to the CSE’s failure to timely develop an IEP subsequent to the June 2022 CSE Meeting; and failure to consider sufficient evaluative data in advance of developing the November 2022 IEP, which resulted in the recommendation of an inappropriate program and placement for the 2022/2023 school year, the Student was enrolled into the Private School. Further asserting that the Student’s unilateral placement in the Private School was appropriate and the District is mandated to remit funding for the full cost of Tuition for his attendance thereat, during the 2022/2023 school year, in an aggregate amount not to exceed seventy-five-thousand-seven-hundred-thirty ($75,730.00) dollars.
The IDEA provides Federal funding for the education of children with disabilities, conditioned on the States implementing laws that guarantee educational standards. 20 U.S.C. §1412(a). Students with a disability must receive a FAPE “that emphasizes special education and related services.” 20 U.S.C. §1400(d)(1)(A). The FAPE must “meet the standards of the State educational agency” and conform to the IEP required by 20 U.S.C. §1414(d); 20 U.S.C. §1401(9)(B); 20 U.S.C. §1401(9)(D). “The Act contemplates that such education will be provided where possible in regular public schools, with the child participating as much as possible in the same activities as [non-disabled] children [and] . . . provides for placement in private schools at public expense where this is not possible.” Burlington , 471 U.S. 359, 369. Under certain conditions, the District may be required to reimburse the parents for their expenditures for private educational services obtained for the Student, if the services offered by the District were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the Parents’ claim. Carter , 510 U.S. 7; Burlington , 471 U.S. 359, 369-70. The Supreme Court found that Congress intended retroactive reimbursement to parents by the District as an available remedy in a proper case under the IDEA. Burlington , 471 U.S. 359, 370-71; Gagliardo , 489 F.3d 105, 111; Cerra , 427 F.3d 186,
192. “Reimbursement merely requires [the 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. 359, 370-71; 20 U.S.C. § 1412(a)(10)(C)(ii); 34 CFR 300.148.
Federal and State law requires that private schools selected for placement must satisfy defined criteria for providing a FAPE and guarantee that students “have the same rights as those [disabled] students placed in facilities of the State.” Antkowiak v. Ambach, 838 F.2d 635, 640 (2d Cir. 1988), abrogated in part by Carter, 510 U.S. 7. Thereafter, in Carter , the Court addressed the narrower issue as to whether a Parent could receive reimbursement for privateschool expenses, when the Parents’ selected school did not satisfy the IDEA’s definition of a FAPE. The Parents’ 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. 7, 14. The Supreme Court held that under IDEA, the Parent may independently place a Student in private school, even when the District objects to the placement. Carter, 510 U.S. 7, 13-14. However, Carter expressly distinguished the District’s direct placement of a child in a non-public school (“NPS”), from the Parents’ unilateral placement of a child in a non-approved NPS. Carter, 510 U.S. 7, 14. On the one hand, the District may consider placement of the Student in an NPS but must be certain that the NPS satisfies the Commissioner’s approval standards. Conversely, the Court found that tuition reimbursement is warranted when the Student is denied a FAPE, and the Parent unilaterally places the Student in an appropriate non-approved NPS. Carter, 510 U.S. 7, 14-15.
a. Appropriateness of Unilateral Placement
Parents seeking tuition reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” Gagliardo , 489 F.3d 105, 112; M.S. , 231 F.3d 96, 104; Educ. Law § 4404(1)(c). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [District’s] placement is appropriate should be considered in determining the appropriateness of the parents’ placement…’” Gagliardo , 489 F.3d 105, 112; Frank G., 459 F.3d 356, 364; quoting Rowley , 458 U.S. 176, 207. When determining whether the Parents’ unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Frank G. , 459 F.3d 356, 364; Gagliardo , 489 F.3d 105, 115; citing, 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 only appropriate if it provides educational instruction specially designed to meet the unique needs of the Student. 20 U.S.C. § 1401(29); 34 CFR 300.39(a)(1); Educ. Law § 4401(1); 8 NYCRR 200.1(ww); Rowley , 458 U.S. 176, 188-89; Gagliardo , 489 F.3d 105, 114-15 (even though unilateral placement provided special education, evidence did not show that it provided special education services specifically needed by the student); Frank G. , 459 F.3d 356, 365.
1. Private School Program
Traditionally, an appropriate educational program begins with an IEP, which includes a statement of the Student’s present levels of academic achievement and functional performance; establishes annual goals designed to meet the Student’s needs resulting from the Student’s disability and enables him or her to make progress in the general education curriculum; and provides for the use of appropriate special education services. However, even in the absence of a formulated IEP, no one factor is necessarily dispositive in determining whether a Parents’ unilateral placement is reasonably calculated to enable the Student to receive educational benefits. Grades, test scores and regular advancement may constitute evidence that the Student 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 the Student’s individual needs. To qualify for reimbursement under the IDEA, the Parents need not show that the placement provides every special service necessary to maximize the Student’s potential. Frank G. , 459 F.3d 356, 364-65. The Parents will need only to demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a Student with disabilities, supported by such services as are necessary to permit the Student to benefit from instruction. Gagliardo , 489 F.3d 105, 112.
The Private School is a special education school for bright students with primarily language-based learning disabilities and attentional challenges; and during the 2022/2023 school year there were approximately three-hundred-eighty (380) students in attendance, aged four through fourteen (4-14), many of whom presented with ADHD and Dyslexia. Notably, a unilateral placement is not deemed appropriate simply because it removes a student from an anxiety-provoking environment, as avoiding a need does not serve the same purpose or have the same effect as addressing it; rather, the placement must be tailored to address the student’s specific needs to qualify for reimbursement under the IDEA. John M. v Brentwood Union Free Sch. Dist. , 2015 WL 5695648, at *9 (E.D.N.Y. Sept. 28, 2015). W.A. v. Hendrick Hudson C. Sch. Dist ., 219 F. Supp. 3d 421, 472, 474 (S.D.N.Y. 2016) (when assessing the propriety of a unilateral placement [one should] consider “totality of the circumstances” including grades, test scores, regular advancement, other objective evidence and attendance). Here, the Private School provided a canopy of the structure and support required to address the Student’s specific academic, executive-functioning and attentional challenges in relation to his (dis)abilities. As demonstrated more fully infra , the Hearing Record supports a finding that the decision to place the Student at the Private School for the 2022/2023 school year was appropriate.
2. Specially Designed Instruction
In an apparent retreat from the standard, articulated in Gagliardo , that the unilateral placement must provide instruction specially designed to meet the student’s unique needs, supported by services necessary to permit the student to benefit from instruction ( Gagliardo , 489 F.3d 105, 112; Frank G. , 459 F.3d 356, 364-65), the Courts have deemed evidence of the general educational milieu of a unilateral placement sufficient for purposes of tuition reimbursement. T.K. , 810 F.3d 869, 878. The Private School conducted formal and informal assessments of the Student during the 2022/2023 school year, to track his progress and growth in his classes that ranged from 12:1+2 to 7:1+1; and employed varying teaching methodologies and approaches, areas of instruction, curriculum modifications, tools and strategies to address specific goals that were developed for the Student by the Private School, inclusive of Orton Gillingham, Singapore Math, RULER program, and Judith Hochman's Writing Revolution. Facially, the Private School may be viewed as the type of NPS that offers the kind of benefits that parents of any student would prefer, such as a small class size and a tailored curriculum; however, notwithstanding the more relaxed legal standard as applied to a Parents’ burden of proving the appropriateness of a unilateral placement, the Hearing Record sufficiently shows that the Private School offered specially designed instruction to address the Student’s identified disabilities and unique needs resulting from his Diagnoses. Accordingly, it is this Hearing Officer’s finding that the Private School constituted an appropriate placement for the Student’s 2022/2023 school year.
3. Student’s Progress
The Second Circuit has noted that while evidence of the Student’s actual progress is “relevant to the court’s review, . . . such progress does not [in and of] itself demonstrate that a private placement was appropriate”. Gagliardo , 489 F.3d 105, 115; Berger , 348 F.3d 513, 522; Rafferty v. Cranston Pub. Sch. Comm. , 315 F.3d 21, 26-27 (1st Cir.2002). It is generally understood, that in a private school “it is more difficult to assess the significance of grades and regular advancement”. Frank G. , 459 F.3d 356, 364. Therefore, evidence of academic progress is not dispositive in determining whether a Student’s unilateral placement is appropriate. Scarsdale Union Free Sch. Dist. v. R.C. , 2013 WL 563377, at *9-*10 (S.D.N.Y. Feb. 4, 2013); M.B. v. Minisink Valley Cent. Sch. Dist. , 523 Fed. App’x 76, 78 (2d Cir. Mar. 29, 2013). However, a finding of progress is, nevertheless, a relevant factor to be considered. Gagliardo , 489 F.3d 105, 115, citing Berger , 348 F.3d 513, 522; T.K. , 810 F.3d 869, 878. Similarly, “if the child’s lack of progress under a particular IEP does not render the IEP inappropriate . . . the fact that the child may not have progressed under the parents’ chosen program should not automatically mean that the program was inappropriate at the time the placement decision was made.” C.B. , 2005 WL 1388964, at *18; citing Antonaccio v. Bd. of Educ. of Arlington Cent. Sch. Dist. , 281 F. Supp. 2d at 710, 724 (S.D.N.Y. 2003).
During the 2022/2023 school year, the Student made steady progress in all subject areas at the Private School, as evidenced in Math, where he tackled increasingly challenging addition and subtraction problems; in Writing, where he began incorporating strategies to develop independent paragraphs and improved his spelling; in Reading, where he benefited from the sequential, repetitive, multi-sensory nature of the Orton Gillingham approach, and improved automatic word recognition, coding and morphemic analysis; exhibited developing skills in Social Studies, strong work habits in completing homework assignments, and maintaining an organized workspace; demonstrated some progress in his receptive language skills; and he exhibited understanding and retention of new concepts, and slightly improved his vocabulary. Accordingly, for the reasons discussed supra , the Hearing Record contains sufficient evidence to support a finding that the Parents have met the burden to show that the Student’s placement in the Private School was appropriate. In reaching this conclusion, the “totality of the circumstances” have been considered, and this Hearing Officer has determined that the Parents’ unilateral placement reasonably served the Student’s individual needs; providing educational instruction specially designed to meet the Student’s unique needs; with some demonstrated progress supported by educational services found necessary to permit the Student to benefit from instruction at the Private School during the 2022/2023 school year.
4. Least Restrictive Environment
Traditionally, the Student’s recommended program must be provided in the 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); 8 NYCRR 200.6(a)(1); Newington , 546 F.3d 111, 114; Gagliardo , 489 F.3d 105, 108; Walczak , 142 F.3d 119, 132; R.B. v. New York City Dep’t of Educ. , 603 Fed. App’x 36, 40 (2d Cir. Mar. 19, 2015) (stating that “[t]he requirement that students be educated in the least restrictive environment applies to the type of classroom setting, not the level of additional support a student receives within a placement”); T.C. , 2016 WL 1261137 at *13 (stating that “[a] less restrictive environment refers to the ratio of special education to general education students in the same classroom, not the ratio of special education students to teachers”). However, “while the restrictiveness of a private placement is a factor [in assessing the appropriateness of a unilateral placement], by no means is it dispositive”; and that “[r]estrictiveness may be relevant in choosing between two or more otherwise appropriate private placement alternatives, or in considering whether a private placement would be more restrictive than necessary to meet the child’s needs, but where the public school system denied the child a FAPE, the restrictiveness of the private placement cannot be measured against the restrictiveness of the public school option.” C.L. v. Scarsdale Union Free Sch. Dist. , 744 F.3d 826, 837, 840 (2d Cir. 2014).
The Second Circuit Court reasoned that “parents whose children are denied a FAPE may be and often are forced to turn to specialized private schools that educate only disabled children. Such private schools are necessarily restrictive as they do not educate disabled and nondisabled children together and may be more restrictive than the public school from which the child was removed. Inflexibly requiring that the parents secure a private school that is nonrestrictive, or at least as nonrestrictive as the FAPE-denying public school, would undermine the right of unilateral withdrawal as recognized by the Supreme Court in Burlington. See 471 U.S. 359, 370; C.L. , 744 F.3d 826, 837; Cleveland Heights-Univ. Heights City Sch. Dist. v. Boss ex rel. Boss, 144 F.3d 391. 400 (6th Cir. 1998) (noting Congress did not intend for a parent to choose between, on the one hand, letting a child remain in FAPE-denying public school, and, on the other hand, removing the child to specialized private school without tuition reimbursement merely because the specialized private school is more restrictive than a FAPE-denying public school). As demonstrated supra , the District has substantively denied the Student a FAPE; accordingly, it this Hearing Officer’s finding that LRE should not be a deciding factor applicable to the Parents’ unilateral placement of the Student in the Private School.
b. Balancing of the Equities
Having found that the unilateral placement was appropriate for the 2022/2023 school year, the last determinant for tuition reimbursement is whether the Parents’ claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. Burlington , 471 U.S. 359, 374; R.E. , 694 F.3d 167, 185, 194; M.C. v. Voluntown Bd. of Educ. , 226 F.3d 60, 68 (2d Cir. 2000). “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.” Carter , 510 U.S. 7, 16; L.K. , 674 Fed. App’x 100, 101.
Traditionally, tuition funding may be denied due to the parent’s failure to timely assert the inappropriateness of an IEP, failure 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). The Second Circuit identified certain 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. E.M. v. New York City Dep’t of Educ. , 758 F.3d 442, 461 (2d Cir. 2014); C.L. , 744 F.3d 826, 840 (“[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”).
1. Parents’ Notice of Unilateral Placement
More particularly, Federal and State regulations provide that tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent IEP meeting prior to their removal of the student from public school, or by written notice ten (10) 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); 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 rather than mandatory, 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 150, 160; Rafferty , 315 F.3d 21, 27; Frank G. , 459 F.3d 356, 376; Voluntown , 226 F.3d 60, 68. Failure to adhere to the ten-day-notice requirement does not serve as an automatic categorical bar to a parent’s claim for tuition reimbursement, particularly where the school district has not asserted that any prejudice was suffered due to the parent’s untimely notice of the student’s unilateral placement. The Third Circuit instructs that a Hearing Officer must conduct an “equitable analysis” to determine whether any reimbursement award may be equitably reduced based on § 1412(a)(10)(C)(iii)(I); and to what extent the District was prejudiced by receiving the Parents’ late notice. Upper Freehold Reg’l Bd. of Educ. v. T.W. , 496 F. App’ 238, 244 (3d Cir. 2012).
It is well-settled that, even when a District fails to provide a FAPE and the placement of a Student in a private school is appropriate, the adjudicator retains “discretion to reduce the amount of a reimbursement award if the equities so warrant” 20 U.S.C. § 1412(a)(10)(C) (tuition reimbursement may be denied “upon a judicial finding of unreasonableness with respect to actions taken by the parents”); including for failure to “give the school district adequate notice of their intent to enroll the child in private school.” Forest Grove , 557 U.S. 230, 247; C.H. v. Cape Henlopen Sch. Dist. , 606 F.3d 59, 71 (3d Cir. 2010). The discretionary nature of the notice provision is reflected in the plain language of the statute, which provides that the cost of reimbursement “may be reduced or denied” for lack of adequate notice, rather than must be denied. 20 U.S.C.A. § 1412(a)(10)(C)(iii). Indeed, several courts have exercised their equitable discretion to permit parents to recover the full or partial cost of reimbursement, despite the parents’ failure to provide timely notice as required under IDEA and the State regulations. W.M. v. Lakeland Cent. Sch. Dist. , 783 F. Supp. 2d 497, 505 (S.D.N.Y. 2011) (finding that, despite the parents’ failure to provide the school with timely notice of their intent to remove their child from public school, “the equities favor[ed] providing partial reimbursement to the [parents].”); J.S. v. Scarsdale Union Free Sch. Dist. , 826 F. Supp. 2d 635, 676 (S.D.N.Y. 2011) (finding that, despite the parents’ failure to comply with IDEA’s notice provision, “in the exercise of its discretion, and taking into consideration the record as well as the findings of the [administrative tribunal], . . . equitable considerations justif[ied] reducing the parents’ tuition reimbursement request by 75%.”).
Accordingly, this Hearing Officer is required to exercise broad discretion and perform an equitable analysis, even where it is determined that the District failed to provide a FAPE and the Student’s unilateral placement is appropriate. However, there is no indication that the Parents unreasonably failed to provide timely notice of the unilateral placement to the District. 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 CFR 300.148(d)(1). The Hearing Record contains documentary evidence demonstrating that the Parents provided a TDN on August 24, 2022, together with a subsequent TDN-2 on November 14, 2022, which informed the District, inter alia , that the Parents intended to enroll the Student into the Private School and would seek Tuition funding if the District did not offer the Student an appropriate program and appropriate school placement. The facts of this case do not remotely approach any uncooperativeness by the Parents, the type of which Courts have found to justify denial of tuition reimbursement altogether. S.W. v. New York City Dep’t of Educ. , 646 F.Supp.2d 346, 364 (S.D.N.Y. 2009) (denying tuition reimbursement because the plaintiff did not give written notice to the department of education that she was rejecting the public-school placement and enrolling the student in a private school until four months after the student began attending the private school, seven months after the CSE meeting, and three months after visiting the public-school placement); Carmel Cent. Sch. Dist. v. V.P. , 373 F.Supp.2d 402, 416 (S.D.N.Y. 2005) (declining to award tuition reimbursement where the parents “never had the slightest intention of allowing the child to be educated in the public school and did everything possible so that they could frustrate a timely review of [the child’s] condition” before enrolling the child in a private school); J.S. , 826 F.Supp.2d 635, 675. Consequently, under the facts and circumstances stated herein, this Hearing Officer finds that denial of the Parents’ tuition reimbursement for the Student’s enrollment in the Private School would be both unsubstantiated and inequitable.
2. Parents’ Cooperation with District
The Supreme Court stated that “[t]he core of the [IDEA] is the cooperative process that it establishes between parents and schools.” Schaffer , 546 U.S. 49, 53, citing Rowley , 458 U.S. 176, 205-06. The Second Circuit has held that where a Parent cooperates with a District in its attempts to develop an appropriate educational program for the Student, “their pursuit of a private placement [i]s not a basis for denying their [request for] tuition reimbursement, even assuming . . . that the parents never intended to keep [the student] in public school.” C.L. , 744 F.3d 826, 840. New York State Regulations impose specific requirements for District placements such as: (i) levels of academic or educational achievement and learning characteristics; (ii) levels of social development; (iii) levels of physical development; and (iv) the management needs of the students in the classroom as well as the specific age range of the students. NYCRR 8 §200.6(h). Ultimately, both the Parents and the District must take certain affirmative steps to ensure completion of the placement process.
The Hearing Record does not reflect that the Parents were uncooperative at any point; obstructive in providing evaluative information and timely responses to the District; reluctant to attend the 2022 CSE Meeting(s); or otherwise, unwilling to consider an alternative placement. As such, the Hearing Record does not support a finding that the Parents failed to cooperate with the District; and the District has not alleged any persuasive equitable factors that have not been addressed, supra , which would preclude an award of tuition reimbursement or funding of the cost of the Student’s attendance in the Private School. Therefore, the Parents’ notice of intent to unilaterally place the Student in the Private School was sufficiently timely; as the TDN(s) fully enunciated the Parents’ basis for the unilateral placement and afforded the District an opportunity to resolve the matter, prior to reenrolling the Student in the Private
School and prior to filing the Complaint. Consequently, it is this Hearing Officer’s determination that the District failed to offer the Student a FAPE for the 2022/2023 school year; the unilateral placement was appropriate; and equitable considerations favor the Parents.
F. RELIEF – FUNDING for PRIVATE SCHOOL TUITION
The Parents contend that the Student’s unilateral placement in the Private School should be determined as appropriate; and as such, the District should be directed to provide funding in the form of reimbursement for the full cost of the Student’s Tuition thereat during the 2022/2023 school year. It is well settled that unlike procedural violations, which singularly will not result in a FAPE denial, “[s]ubstantive inadequacy automatically entitles the parents to reimbursement.” R.E., 694 F.3d 167, 190. As demonstrated supra , the procedural deficiencies and substantive inadequacies underlying the IEP denied the Student a FAPE in 2022/2023.
Districts can be directed to make retrospective tuition payments directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) due to a lack of financial resources, the parents have not made tuition payments but are legally obligated to do so. Mr. and Mrs. A. , 769 F. Supp. 2d 403, 406 (2011). However, even where the Parents have the financial means to front the initial costs of tuition for enrollment in a private school, the District is not otherwise excused from its responsibility to provide a “free” appropriate public education to the Student. See , Connors v. Mills , 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998) (opining that such financial disputes should be resolved within the administrative hearing process). In analyzing the earlier findings of Carter , Burlington , and Rowley , the Connors Court aptly provided that “a school’s non-approval status cannot be the justification for denying a child access to needed educational services in all situations. In particular, when a child’s access to a free and appropriate public education in a substantive sense conflicts with the state’s approval process, Carter instructs that the State’s approval process must give way. The IDEA requires that special education services are to be provided “at no cost to parents,” 20 U.S.C. § 1401(29), and numerous provisions of IDEA reflect Congress’ determination that the guarantee of a FAPE should extend to all children with disabilities, regardless of their financial means. 20 U.S.C. § 1437(b)(7).
As established, supra , the Hearing Record demonstrates that the District substantively and procedurally violated the IDEA and denied the Student a FAPE; specifically, the District failed to timely develop the June 2022 IEP, failed to consider sufficient evaluative data when developing the November 2022 IEP; and consequently, failed to recommend an appropriate program and placement for the Student’s 2022/2023 school year. Based on the foregoing, the evidence in the Hearing Record demonstrates that the Parents’ placement of the Student in the Private School during the 2022/2023 school year was reasonably calculated to meet his unique cognitive, academic and executive functioning needs; and equitable considerations warrant an award in favor of the Petitioners, granting full funding for the cost of Tuition in the Private School during the 2022/2023 school year. Accordingly, this Hearing Officer finds that the Parents’ placement of the Student in the Private School was appropriate; and has reasonably contributed to provide a meaningful educational benefit to the Student. In addition, this Hearing Officer concludes that the appropriateness of the Parents’ placement of the Student in the Private School meets the standards of the Burlington/Carter Test for tuition reimbursement; and therefore, the District is directed to provide full Tuition funding for the Student’s attendance in the Private School, during the 2022/2023 school year. More particularly, within ten (10) business days of the Parents’ presentment of the ‘Tuition Affidavit’, evidenced herein as Exhibit “K”, the District shall remit full payment directly to the Parents in an amount not to exceed seventy-five-thousand-seven-hundred-thirty ($75,730.00) dollars, which shall serve as a full reimbursement for the amount paid to the Private School for the Student’s attendance thereat during the period between September 8, 2022 and June 15, 2023.
G. RELIEF SOUGHT FOR ADDITIONAL CLAIMS
As stated supra , in electing not to present appropriate documentary or testimonial evidence sufficient to refute certain allegations raised in the Complaint, the District failed to satisfactorily meet its burden in demonstrating that a FAPE was offered to the Student during the 2022/2023 school year. In response, some might assert that the Parents should axiomatically prevail under Prong I based solely on the District’s absence of adequate evidence in the Hearing Record, which could only be viewed as a request for a default judgment against the District. However, an impartial hearing officer is not automatically required to order any and all relief requested by the Parents, as it has been held that an outright default judgment awarding compensatory education or any relief requested, without question, is a disfavored outcome even in those instances where the District’s conduct in denying the Student a FAPE and [thereafter] in failing to actively participate in the impartial hearing process is, viewed by some, as egregious. Branham v. Govt. of the Dist. of Columbia , 427 F.3d 7, 11-12 (D.C. Cir. 2005); G.M. v. Dry Creek Joint Elementary Sch. Dist. , 595 F. App’x 698, 699 (9th Cir. 2014); Jalloh v. Dist. of Columbia , 535 F. Supp. 2d 13, 19-20 (D.D.C. 2008); Sykes v. Dist. of Columbia , 518 F. Supp. 2d 261, 267 (D.D.C. 2007).
As such, notwithstanding whether the relief sought relates to an alleged denial of FAPE, tuition funding or a compensatory award, the IDEA requires each IHO to reach a determination founded on substantive grounds based on the contents of the hearing record. Accordingly, this Hearing Officer can neither render a declaratory nor default judgement on the basis of insufficient factual evidence in the Hearing Record. More particularly, an IHO is not vested with “the inherent power to make up remedies out of whole cloth”. S. Kingstown Sch. Comm. v. Joanna S. , 2014 WL 197859, at *9 n.9 (D.R.I. Jan. 14, 2014), aff’d , 773 F.3d 344 (1st Cir. 2014). State regulations provide in relevant part that “[t]he decision of the [IHO] shall set forth the reasons and the factual basis for the determination. . . [and] shall reference the hearing record to support the findings of fact.” 8 NYCRR 200.5(j)(5)(v). Additionally noting that neither IHOs nor State Review Officers (“SROs”) have authority to enforce prior decisions rendered by administrative hearing officers, much less to enforce decisions of the courts. Educ. Law §§ 440([1)(a); (2); see e.g. , A.R. v. New York City Dep’t of Educ. , 407 F.3d 65, 76, 78 n.13 (2d Cir. 2005) (specifically, IHOs do not retain jurisdiction to enforce even their orders, and that a party who receives a favorable administrative determination may seek enforcement in court); A.T. v. New York State Educ. Dep’t , 1998 WL 765371, at *7, *9-*10 & n.16 (E.D.N.Y. Aug. 4, 1998). The scope of the Hearing must be strictly limited to the issues asserted within the four corners of the Complaint. 8 N.Y.C.R.R. § 200.5 (j)(l)(ii); 20 U.S.C. § 1415(F)(3)(b ); B.P. , 841 F. Supp. 2d 605, 611; R.C. ex rel. M.C. v. Byram Hills School Dist. , No. 11 Civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Further, the Courts have traditionally distinguished between systemic violations that should be addressed by the Federal Courts, as opposed to “technical questions of how to define and treat individual students’ learning disabilities, which are best addressed by administrators”. Levine v. Greece Cent. Sch. Dist. , 2009 WL 261470, at *9 (W.D.N.Y. 2009), aff'd , 353 Fed. App’x 461 (2d Cir. Nov. 12, 2009); Dean v. Sch. Dist. of City of Niagara Falls , 615 F. Supp. 2d 63, 70 (W.D.N.Y. 2009).
Here, certain issues for adjudication were provided in advance of the Hearing; set forth in the Statement of Issues to be Adjudicated; addressed by the witnesses during the Hearing; delineated in the Parties’ Closing Brief(s); and now decided herein by this Hearing Officer. Remaining however, are certain bare allegations or claims presented in the Complaint and/or raised in the Closing Brief(s), which do not have adequate factual evidence in the Hearing Record that would fully satisfy the factual basis required to render a determination and/or otherwise support a finding that the Student was either denied a FAPE or his rights violated, as a result of the District’s alleged (in)actions during the 2022/2023 school year. Consequently, due to the absence of sufficient testimonial or documentary evidence supported by the Hearing Record in relation to the aforementioned issues/claims, further consideration by this Hearing Officer cannot be undertaken; and accordingly, the Parents’ request for relief of any remaining issues or claims, which have not been specifically addressed herein, must be Denied.
ORDER
WHEREFORE IT APPEARING that the Hearing Record adequately demonstrates that after full consideration of the testimonial and documentary evidence presented, together with the applicable Federal and State Regulations, and the Conclusions of Law, this Hearing Officer has determined inter alia , that during the 2022/2023 school year, the (i) District failed to timely develop the Jun 2022 IEP; (ii) District failed to consider sufficient evaluative data in advance of developing the November 2022 IEP; (iii) District failed to recommend an appropriate program; (iv) District failed to recommend an appropriate educational placement; (v) District failed to meet its statutory burden of proof, production and persuasion relating to the alleged denial(s) of FAPE.
IT IS HEREBY ORDERED that the District’s cumulative procedural and substantive violations under the IDEA, denied the Student a FAPE during the 2022/2023 school year; and
IT IS HEREBY FURTHER ORDERED that the Parents’ unilateral placement of the Student in the Private School during the 2022/2023 school years was appropriate under the IDEA, and equitable considerations favor the District’s funding of the full cost of Tuition for the Student’s attendance thereat during the 2022/2023 school year, in an amount aggregating and not to seventy-five-thousand-seven-hundred-thirty ($75,730.00) dollars; and
IT IS HEREBY FURTHER ORDERED that within ten (10) business days of the Parents’ presentment of the ‘Tuition Affidavit’, evidenced herein as Exhibit “K”, the District shall remit full payment directly to the Parents in an amount not to exceed seventy-five-thousand-seven-hundred-thirty ($75,730.00) dollars, which shall serve as a full reimbursement for the amount paid to the Private School for the Student’s attendance thereat during the period between September 8, 2022 and June 15, 2023; and
IT IS HEREBY FURTHER ORDERED that the Parents’ request for any additional claims asserted or relief sought in the Complaint, for which no supporting testimonial or documentary evidence was provided during the Hearing or otherwise supported by the Hearing Record, is hereby Denied; and
IT IS HEREBY FURTHER ORDERED that the Parents’ request for any claims asserted or relief sought, which were raised subsequent to filing the Complaint and/or raised for the first during the Hearing or in the Closing Brief, is hereby Denied; and
IT IS HEREBY FURTHER ORDERED that the Parents’ request for any relief sought or claims asserted, which were withdrawn prior, during or subsequent to the Hearing, is hereby Denied; and
IT IS HEREBY FURTHER ORDERED that the Parents’ request for any relief sought that is not within the jurisdictional ambit or authority of this Hearing Officer, is not properly seated before me, and is hereby Denied; and
IT IS HEREBY FURTHER ORDERED that any remaining issue, claim or contention not expressly addressed in this Decision, is hereby Denied.
IT IS SO ORDERED.
Dated: December 16, 2024
/s/ Patricia L. Murrell______________,
Impartial Hearing Officer, Patricia L. Murrell
IHO.PatriciaMurrell@gmail.com
Copies to: All Parties
NOTICE OF RIGHT TO APPEAL
Within forty (40) days of the date of this Decision, the Parent and/or the 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 twenty-five (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 forty (40) days from the date of the decision sought to be reviewed. An appealing party shall file the (i) notice of intention to seek review, (ii) notice of request for review, (iii) request for review, and (iv) proof of service with the Office of State Review of the New York State Education Department within two (2) days after service of the request for review is complete. The Rules of Procedure for Proceedings 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.
PARENTS’ EXHIBIT(S)
| Ex. | Description | Date(s) | No. Page(s) |
| A. | Due Process Complaint | September 13, 2023 | 4 |
| B. | 10 Day Notice Letter with Confirmation Receipt | August 24, 2022 | 2 |
| C. | Ten-Day-Notice with Confirmation Receipt | November 14, 2022 | 2 |
| D. | Ten-Day-Notice with Confirmation Receipt | March 13, 2023 | 3 |
| E. | Re-Enrollment Contract – 2022/2023 | February 1, 2022 | 8 |
| F. | Class Schedule | 2022/2023 | 1 |
| G. | Mid-Year Report – 2022/2023 | January 20, 2023 | 23 |
| H. | End-of-Year Report – 2022/2023 | June 6, 2023 | 24 |
| I. | Mid-Year Speech/Language Remediation Report | 2022/2023 | 2 |
| J. | End-of-Year Speech/Language Remediation Report | 2022/2023 | 3 |
| K. | Tuition Affidavit of Payment | January 18, 2023 | 1 |
| L. | Proof of Payments | Various Dates | 6 |
| M. | Neuropsychological Evaluation | September-October 2020 | 18 |
| N. | Attendance Record | July 3, 2023 | 1 |
| O. | Résumé – [Redacted] | Undated | 1 |
| Total Exhibit Page(s): | 100 |
DISTRICT’S EXHIBIT(S)
| Ex. | Description | Date(s) | No. Page(s) |
| 1. | Individualized Education Program (IEP) | November 29, 2022 | 34 |
| 2. | IEP Attendance Page | November 29, 2022 | 1 |
| 3. | Notice of IEP Meeting | September 20, 2022 | 4 |
| 4. | Occupational Therapy | May 27, 2019 | 8 |
| 5. | School Progress Report | June 27, 2022 | 25 |
| 6. | Speech & Language Progress Report | November 21, 2022 | 2 |
| 7. | Individualized Education Program | June 24, 2022 | 34 |
| 8. | School Location Letter (SLL) | July 28, 2022 | 3 |
| 9. | Prior Written Notice (PWN) | July 28, 2022 | 11 |
| Total Exhibit Page(s): | 123 |
HEARING OFFICER EXHIBIT(S)
| Ex. | Description | Date(s) | No. Page(s) |
| IHO-1 | Joint Statement of Facts | April 10, 2024 | 3 |
| IHO-2 | Statement of Issues to be Adjudicated | April 10, 2024 | 2 |
| IHO-3 | Parent’s Post-Hearing/Closing Brief | August 19, 2024 | 19 |
| IHO-4 | District’s Post-Hearing/Closing Brief | August 19, 2024 | 15 |
| Total Exhibit Page(s): | 39 |
Case No. 260848 (Exhibits-Cont.)
TRANSCRIPT(S)
Type of Conference/Hearing Date(s) __ No. Page(s)
Prehearing Conference October 26, 2023 9
Status Conference November 20, 2023 8
Second Status Conference January 4, 2024 9
Third Status Conference February 8, 2024 10
Due Process Hearing – Day One February 29, 2024 40
Due Process Hearing – Day Two April 11, 2024 84
Due Process Hearing – Day Three April 16, 2024 6
Due Process Hearing – Day Four June 6, 2024 54
Due Process Hearing – Day Five June 25, 2024 43
Total Transcript Pages 263
Total Document Page(s): 525
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Footnotes
[1] The Hearing Record cited to in these Findings of Fact and Decision (hereinafter, the “Decision”) includes and references documents, which are designated as follows: to the Transcript, “Tr.” followed by the respective page/line number(s); to the Exhibits, as designated by the Parents’ Disclosure/Exhibit List, which are identified alphabetically: (A through O); District’s Disclosure/Exhibit List, which are identified numerically: (1 through 9); “IHO” for the Impartial Hearing Officer Exhibits, (IHO-1 through IHO-4); and, as to any other document(s) included in the Hearing Record not specifically assigned an exhibit number, each of which will be identified by the respective document name and relevant page numbers, therein.
[2] See , IHO-1 – Joint Statement of Facts.
[3] See , IHO-2 – Statement of Issues to be Adjudicated.
[4] See , IHO-3 – Parents’ Post-Hearing/Closing Brief.
[5] See , IHO-4 – District’s Post-Hearing/Closing Brief.
[6] See , 4-1; through 4-8.
[7] See , M-1; through M-18.
[8] See , E-1; through E-8; see also , K-1; see also , L-1; through L-6.
[9] See , 7-1; through , 7-34. N.B. : Neither the Teacher Report nor SLT Report referenced in the June 2022 IEP were proffered for admission into evidence; and therefore, were not examined by this IHO.
[10] See , 5-1; through 5-25.
[11] See , 6-1; 6-2.
[12] See , 9-1; through , 9-11; see also , 8-1; through , 8-3.
[13] See , B-1; B-2.
[14] See , 3-1; through 3-4.
[15] See , B-1; through , B-3.
[16] See , 1-1; through , 1-34; see also , 2-1.
[17] See , G-1; through , G-23.
[18] See , D-1; through , D-3.
[19] See , H-1; through , H-24.
[20] See , I-1; I-2.
[21] See , J-1; through , J-3.
[22] See , Tr. 83:15-25; through and including , Tr. 120:1-12.
[23] See , Tr. 121:1-25; through and including , Tr. 126:1-12; see also , Tr. 211:5-25; through and including , Tr. 215:1-8.
[24] See , Tr. 148:23-25; through and including , Tr. 175:1-13.
[25] Available at http://www.p12.nysed.gov/specialed/publications/policy/continuum-schoolage-revNov13.pdf ).