Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 263203

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 11/15/2023

11/20/2023

Actual Record Close Date: 11/24/2023

Decision Date: 11/26/2023

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 11/16/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], Attorney

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 11/17/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], Attorney

For the Department of Education:

NONE

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

EX. DATE DOCUMENT PAGE(S) Entered 11/15/2023 A 10/2/23 Due Process Complaint (DPC) 4 B 8/22/23 Ten Day Notice (TDN) 2 C 23-24 SY [REDACTED]-Program Description 4 D 5/30/23 Student Enrollment Contract 5 E 9/15/23 Tuition Affidavit of [REDACTED] 1 F 23-24 SY Student Schedule 2 G 23-24 SY Student Attendance 1 H 11/11/23 Affidavit of [REDACTED] 3 I 11/13/23 Affidavit of [REDACTED] 12

DEPARTMENT OF EDUCATION (DOE)

None

IMPARTIAL HEARING OFFICER

Entered 11/15/2023

I Notice of Appointment, 10/1/2023, 4 pages

II Pendency Agreement, 10/16/2023, 1 page

INTRODUCTION

On 10/10/2023, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Hearing commenced, on 11/15/2023, to allow an opportunity for the DOE to defend against the allegations contained in the DPC. (Ex A)

Ultimately, the DOE did not avail itself of the opportunity to defend against the allegations contained in the DPC.

Hearing continued, and concluded, on 11/20/2023.

Appended to the record are lists of persons in attendance and the documents received in evidence.

Due Process Complaint (DPC) relates to the 23/24 School Year, and allegations include:

- Student has been classified, by the DOE, as a student with a disability, since the 16-17 school year; - Student has been attending the UP, since the 17/18 school year; - Most recent IEP was developed on 12/15/2022 (Ex A 2); - The DOE has failed to offer Student a free and appropriate public education (FAPE) for the 23-24 school year (Ex A 2); - Alleged failure includes: the DOE failed to complete triennial evaluations - Parent has not been provided a copy of a 23-24 IEP; and - The DOE failed to offer the Student a 23-24 placement (Ex A 3).

Parent seeks relief to remedy the alleged failure, including:

• A finding that the above noted failings and violations deprived the Student of a FAPE for the 2023-2024 school year; • An order directing the DOE to make direct payment to the UP for any payments remaining in the 2023-2024 school year; • An order directing the DOE to reimburse the Parent for any payments made for the 2023-2024 school year tuition at UP; and • An order to provide the Student with appropriate transportation to and from his school placement and reimbursement for any transportation expenses during the school years at issue. (Ex A 3)

JURISDICTION

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

THE POSITION OF EACH PARTY

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

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

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

A 10/2/23 Due Process Complaint (DPC)

Details allegations of a denial of FAPE, for the 23-24 school year, and sought after relief.

B 8/22/23 Ten Day Notice (TDN)

Parent, via Attorney, notifies the DOE of: an alleged failure to offer the Student a FAEP, for the 23-24 school year; re-enrollment at the UP; and intent to seek DOE funding for said enrollment, with transportation. (Ex B 2)

C 23-24 SY [REDACTED]-Program Description

General characteristics, of the UP, include:

- A special education school that prepares students for postsecondary opportunities. The mission of the school is to educate students in a meaningful learning environment so they can maximize their potential and become confident, successful citizens of their school and community. UP serves children with language, learning, attention and social differences (Ex C 1); - Students receive a local diploma upon completion of required credits (Ex C 3); and - UP is accredited via the National Independent Private Schools Association (Ex C 4).

D 5/30/23 Student Enrollment Contract

Student 23-24 UP Tuition is set forth as: $[REDACTED].00. (Ex D 1)

Parent is obligated to payment via signature upon the Contract. (Ex D 3-5)

E 9/15/23 Tuition Affidavit of [REDACTED]

Parent has thus far paid $[REDACTED] of the Student’s 23-24 UP Tuition.

A balance of $[REDACTED] remains due.

F 23-24 SY Student Schedule

Student Academic schedule, for the 23-24 school year.

G 23-24 SY Student Attendance

Student is evidenced to be attending the UP, for the 23-24 school year.

H 11/11/23 Affidavit of [REDACTED]

Student Mother provides Testimony that includes:

- Student is in the [REDACTED] grade, attending the UP, since the 17/18 school year (Ex H 1); - Participation in the 12/15/2022 IEP meeting, and expressed disagreement with the recommendation (Ex H 1-2); - An actual IEP has not been received, for the 23-24 school year; - A Student placement has not been received, for the 23-24 school year; - Parent Attorney advised the DOE that a placement had not been received, and of the intent to re-enroll Student, at the UP, at DOE expense; - Student continues to make excellent progress, at the UP, including much more confidence in reading; - The UP is an appropriate placement for the Student; - Parent has limited financial resources and seeks direct funding, from the DOE, for Student attendance, at the UP; and - Parent is in agreement with statements presented via her Attorney, in this matter. (Ex H 2)

I 11/13/23 Affidavit of [REDACTED]

The UP Director of Student Affairs, provided Testimony that includes:

- General UP characteristics (Ex I 1-2); - Witness qualifications and role, at the UP (Ex I 1-3); - The UP is a small, structured, multi-sensory, language-based, academic program with a string emphasis on social skill development (Ex I 2); - A review of UP staff components and qualifications (Ex I 3-4); - Student has attended the UP since 2017 (Ex I 4); - Student evaluations include a diagnosis of Speech and Language Impairment, which impacts his ability to access an education (Ex I 4); - Details regarding Student educational challenges and services and supports to address those challenges; - Student requires Individualized supports and strategies to assist him in accessing the curriculum and to ensure his academic, social and emotional progress; - Student Speech and Language Impairment impacts learning across all academic areas, as reading and writing are pervasive in all his classes; - Student is: o Enrolled in [REDACTED] grade o Classes have between 8 and 12 students; o Specific class placements were determined based on academic and social functioning of students; o Student is grouped with those of similar learning profiles (Ex I 15); - A review of Student classes, qualifications of staff, and Student supports, for classes that include Applied British Literature (Ex I 6); Reading and Writing (Ex I 6-7); Math Applications (Ex I 7-8); and Advance Class, which focuses on Executive Functioning (Ex I 8-9); - Student supports include: access to a laptop in all classes and Smart Board technology (Ex I 9); - Student requires support of Assistive Technology to make academic progress, which includes software (Ex I 9); - Student requires small class size because he needs regular individualized attention during each instructional period; - Student requires one-to-one support in expressing himself through written language; - Student receives Speech and Language services, as a push in service during whole-group instruction (Ex I 9); - Student receives Counseling services, as an individual and group service (Ex I 9-10); - Student has made progress, at the UP as noted by: increased contributions during discussions related to transition; and improvement in ability to recognize and advocate for his needs (Ex I 11); - Progress is measured, at the UP, formally and informally (Ex I 11); - Student is continuing to make progress, during the 23-24 school year, both academically and in social and emotional development (Ex I 12); - Tuition, at the UP, for the 23-24 school is $[REDACTED].00 and Parents are obligated to payment via Contract (Ex D); - The UP is an appropriate placement, for the Student, who requires an explicit multi-sensory, language-based program within a small group setting to make academic, social and emotional progress; and - Student requires counseling support as well as instruction in social competencies and problem-solving. (Ex I 12)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A][B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379).

Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192).

The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65).

When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

A recent United States District Court for the Southern District of New York decision, Cohen v. N.Y.C. Dep’t of Educ., 09/26/2023, clarified that information regarding a Parent’s financial capability is not a part of Parent’s burden, once the DOE has been showed to deny the Student a FAPE (Cohen v. N.Y.C. Dep't of Educ., 2023 U.S. Dist. LEXIS 171815):

“To place a burden on parents to establish financial inability to pay for an alternative private placement, when the district has failed to provide their child a "free and appropriate public education" as required under the IDEA, entirely contradicts the clear legislative mandate that special education placements are, by definition, to be provided at "no cost to the parent." N.Y. Educ. Law § 4401(1) (McKinney)… Accordingly, the Court finds that Plaintiffs are not required to establish financial hardship in order to seek direct retrospective payment…” (Cohen v. N.Y.C. Dep't of Educ., 2023 U.S. Dist. LEXIS 171815 at 5) DOE offer of FAPE for the 23-24 School Year The DOE opted not to present a defense to the Parent’s allegations.

The district has presented no witnesses in this matter.

The DOE has not evidenced development of an appropriate IEP for the commencement of the 23-24 school year.

The DOE has not evidenced any offer of an actual Student placement for the 23-24 23-24 school year.

DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 23-24 school year.

I find the DOE failed to offer the Student a FAPE for the 23-24 school year.

UP Placement for the 23-24 School Year

Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 23-24 school year.

The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. I find that the documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent.

Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex A, B, C, E, F, H & I)

I find that the UP provides special education services specifically tailored to meet the needs of the Student.

I find UP provides an appropriate education and program for the Student for the 23-24 school year.

TUITION FUNDING 23-24 School Year

I find the Parent is entitled to Student’s UP Tuition funding, via the DOE, for the 23-24 school year.

The DOE has denied a FAPE to the Student for the 23-24 school year.

Parent provided appropriate Ten Day Notice, to the DOE. (Ex B)

Student 23-24 UP Tuition is set forth as $[REDACTED].00. (Ex D 1)

Parent is obligated to payment via signature upon the Contract. (Ex D 3-5)

Parent has thus far paid $[REDACTED] of the Student’s 23-24 UP Tuition. (Ex E 1)

A balance of $[REDACTED] remains due. (Ex E 1)

Parent seeks direct funding, being financially incapable of funding the Tuition and awaiting reimbursement. (Ex H 2)

Recently, the Court clarified the issue of placing the burden on a parent to establish an inability to financially fund tuition, at a unilateral placement. (Cohen v. N.Y.C. Dep't of Educ., 2023 U.S. Dist. LEXIS 171815)

Therein it was determined that, to place a burden on parents to establish financial inability to pay for an alternative private placement, when the district has failed to provide their child a "free and appropriate public education" as required under the IDEA, entirely contradicts the clear legislative mandate that special education placements are, by definition, to be provided at "no cost to the parent." N.Y. Educ. Law § 4401(1) (McKinney).

The consistent message of this District's decisions is that a child's access to a FAPE "cannot be made to depend on his or her family's financial ability to 'front' the costs of private school tuition." Mr. & Mrs. A, 769 F. Supp. 2d at 406. To require otherwise will inevitably result in disparate requirements for parents of disabled children [*16] based on financial resources, notwithstanding the IDEA's requirement that all children with disabilities are entitled to a free education. Accordingly, Plaintiffs are not required to establish financial hardship in order to seek direct retrospective payment to a Unilateral Placement (UP). (Cohen v. N.Y.C. Dep't of Educ., 2023 U.S. Dist. LEXIS 171815, at page 14)

In this matter the Parents choose to continue Student placement at UP, without any DOE alternative.

I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to direct DOE funding of the UP tuition, for the 23-24 school year.

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

TRANSPORTATION

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

Parent seeks transportation and funding for expenses thus far in facilitating Student attendance, at the UP. (Ex A 3, Ex B 2 & T 12)

Student is evidenced to be one entitled to special education services, with daily Special Education Transportation currently being provided, via Pendency Implementation Form. (IHO Ex I 1)

Considering the evidence presented, and the lack of opposition from the DOE, I find it appropriate to continue special education transportation.

ORDER

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

2. The [REDACTED] (UP) provides Student with an appropriate program and placement, for the 23-24 school year.

3. The DOE shall fund Student’s [REDACTED] (UP), 23-24 Tuition, in the amount of $[REDACTED].00, via: o Reimbursement to the Parent $[REDACTED]; and o Direct Payment to the [REDACTED] (UP) $[REDACTED].

4. The DOE shall provide Student with specialized transportation to and from the [REDACTED], for the 23-24 school year.

5. The DOE shall provide Parent with any documents or forms necessary to facilitate payment under this Order, within ten days of the date of this Order.

6. This decision is subject to appeal and review by the State Review Officer.

DATED: November 26, 2023

DANIEL AJELLO

DANIEL AJELLO

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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