Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 263236

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 11/10/2023

11/20/2023

12/04/2023

Actual Record Close Date: 12/07/2023

Decision Date: 12/10/2023

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 11/10/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 11/20/2023

(All Parties Appeared Via Teleconference)

For the Student:

NONE

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 12/04/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

For the Department of Education:

NONE

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

EX. DATE DOCUMENT PAGES Entered 11/10/2023 A 09-29-2023 Impartial Hearing Request 8 B 05-22-2023 Parent FAPE Letter to CSE 8 with signed consent and Certified Mail Receipt 4 C 08-15-2023 Parent Ten-Day Notice Letter to CSE 8 2 D 06-16-2020 Neuropsychological Assessment 13 E 2023-2024 [REDACTED] (UP) Program Description 2 F 2023-2024 UP Description of Independent Transition Program (ITP) 1 G 06-23-2023 UP School Calendar for 2023-2024 School Year 1 H 2-23-2024 UP Student Schedule Semester 1 1 I 09-07-2023-10-13-2023 Attendance History 2023-2024 School Year 1 J 09-07-2023-10-20-2023 UP Q1 Academic Report with Attendance 1 K 03-10-2023

& 03-15-2023 UP Enrollment Contract-Returning Student with ITP 1 L 03-15-2023 UP Invoice 1 M 10-12-2023 UP Affidavit of Payments 1 N March 2023July 2023 Proof of Payments 4 O 10-30-2023 UP Affidavit of Testimony-[REDACTED], Co- Director [REDACTED] Program 14 P 10-26-2023 Department of Education Due Process Response 3

DEPARTMENT OF EDUCATION (DOE)

None

IMPARTIAL HEARING OFFICER

Entered 11/10/2023 I Notice of Appointment, 10/10/2023, 4 pages

II Pendency Implementation Form, 10/25/2023, 1 page

III Unavailability Notice from DOE, 11/08/2023, 1 page Entered 12/04/2023 IV Notice of Appearance DOE, 11/14/2023, 1 page

V Unavailability Notice from DOE, 11/17/2023, 1 page

INTRODUCTION

On 10/10/2023, I was appointed the Impartial Hearing Officer (“IHO”) by the 2023

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 11/10/2023, to allow an opportunity for the DOE to defend against the allegations contained in the DPC. (Ex A)

The DOE did not appear, and instead offered a Statement which has been entered into the Record:

“Due to scheduling issues, the DOE will not be appearing at the Conference scheduled for 11/10 at 10 AM. It is the DOE’s position that this case has been recommended for settlement and the DOE will continue to work with parent/counsel to resolve this matter via settlement as expeditiously as possible. The DOE requests that this email be placed into the record. “

(IHO Ex III)

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

Hearing was set to continue, on 11/20/2023 @ 12:30 am. However, it was entered as 10:00 am. The IHO contacted the Parties and rescheduled the Hearing, for 12/04/2023 @ 1100 am.

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:

- The DOE has failed to offer the disabled, [REDACTED] old Student, a free and appropriate public education (FAPE) on procedural as well as substantive grounds; - The Parents have unilaterally placed Student at [REDACTED] School (Unilateral Placement – UP) and seek DOE Tuition Funding for this placement; - Recounting the Student’s educational history, which includes: language processing issues, dysgraphia, dyslexia and slow processing speed; - Evaluation, in June 2020, which revealed diagnoses of Executive Functioning Deficit; and Attention Deficit Hyperactivity Disorder (ADHD), Combined Type (Ex A 1, Ex D); - Parent wrote to the Committee on Special Education (CSE), in May of 2023, consenting to testing; the DOE responded with an inquiry regarding residency, to which Parent responded; and the Parent has not heard from the DOE since that time (Ex A 1); - The DOE did not conduct an Individualized education Program (IEP) meeting for the Student, for the 23-24 school year (Ex 3); - August 15, 2023 Parent wrote to the CSE again that they had not received an IEP or a School Location Letter offering their Child a public school placement for the 2023-2024 school year; and - Parent notified the DOE of intent to place Student at the UP. (Ex A 3)

Parent seeks relief to remedy the alleged failure, including:

- DOE reimbursement funding for appropriate unilateral placement (UP), at [REDACTED] School, with [REDACTED] Program ([REDACTED]), for the 23-24 school year); and - Cost of Evaluations. (Ex A 4)

JURISDICTION

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

THE POSITION OF EACH PARTY

The DOE did not defend any offer of a Free Appropriate Public Education (FAPE), for the Student, for the 23-24 school year. (T 22)

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

Paren Attorney set forth the Parent’s allegations, and sought after relief, at hearing, of 12/04/2023. Parent Attorney relies upon the documentary evidence entered into the Record, contending it supports the UP as an appropriate Student placement, in light of the DOE failure to offer the Student a FAPE, for the 23-24 school year. (T 25-26)

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

A 09-29-2023 Impartial Hearing Request

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

B 05-22-2023 Parent FAPE Letter to CSE 8 with signed consent and Certified

Mail Receipt

Parent writes to the DOE seeking a FAPE for the Student, believing he requires special education services.

Parent recounts Student diagnoses which raise concerns, and seeks CSE guidance, (Ex B 1)

Parent includes a signed Consent to Evaluate the Student.. (Ex B 3)

C. 08-15-2023 Parent Ten-Day Notice Letter to CSE (8 pages)

Parent notifies the DOE of: alleged failure to offer the Student a FAPE, for the 23-

24 school year; failure to offer a 23-24 school placement; and intent to unilaterally place the Student at the UP and seek DOE funding. D 06-16-2020 Neuropsychological Assessment

Details Student testing and confirms diagnoses of: Executive Function Deficit and Attention Deficit Hyperactivity Disorder (ADHD) – Combined Type, (Ex D 9)

Recommends a variety of special education classroom and educational supports/accommodations. (Ex D 10-13)

Areas requiring support include: Testing; home support (Ex D 11-12); Reading (Ex D 12); Math (Ex D 12-13); and Written Expression (Ex D 13) E 2023-2024 [REDACTED] (UP) Program Description

General characteristics of the U are set forth, which include:

- Accredited by the Middle States Association of Schools and Colleges and is registered by New York State; - mission was to create an environment in which students could succeed.; - UP created a tracking system to create an environment by which students are grouped according to their ability; - Generally, there are two or three different tracks at York in all the main academic subjects in the middle school and five tracks in the high school; - These tracks are scheduled at the same time. This allows UP to place students in tracks that are appropriate for them and also allows for flexibility if students move to another track during the year without disrupting that student’s schedule; - UP employs three experienced psychologically qualified personnel on a full-time basis; - UP offers a variety of foreign languages, such as Mandarin, French, and Spanish; - Students who have the accommodation not to take a foreign language are offered a fundamentals of reading and writing course, as well as the option to take American Sign Language; - Class size is small, there are about twelve students in a class in the middle school and approximately fifteen to sixteen in the high school; - A student assigned to the [REDACTED] is assigned to a [REDACTED] teacher, who has a background in special education or in a remedial specialty like literacy; - Students must have a DOE IEP or a neuropsychological or psychoeducational evaluation to be admitted into the program; - The purpose of this requirement is to ensure that students accepted into the [REDACTED] program can be offered the accommodations they are entitled to; - The UP Admissions Team reviews these documents to determine whether a student is appropriate for the program; - A [REDACTED] teacher typically has a caseload of about eleven students. He or she meets with each student individually twice a week for one period during a non-academic subject such as art, music, drama or physical education; - UP believes in inclusive education so that the learning disabled students of average or above-average students have the “least restrictive environment”; - In [REDACTED] sessions the teacher provides skills-based instruction to address the student’s learning deficits; - The [REDACTED] teacher meets with his or her students in a group both before and after school. In the group sessions, the [REDACTED] teacher focuses largely on executive functioning skills related to homework (Ex E 1); organization, and test-taking, but the teacher also addresses skills-based problems when necessary (Ex E 2); - The [REDACTED] student meets with the [REDACTED] teacher 12 times a week; - The ITP, decreases the amount of support a student receives, while increasing independence; - ITP is offered to students who still require some support, but do not need the full support of [REDACTED]; - Students receive one individual session per week with a [REDACTED] teacher, where they continue to work on developing the skills and strategies that they need to be fully independent; - Students are also given the option to attend either the morning or afternoon group sessions; - ITP offers a seamless transition from the [REDACTED] program towards full independence (Ex E 2); and - Canvas computer based information system is used, at the UP. (Ex E 2)

Details are also provided regarding how the classroom and [REDACTED] teachers collaborate:

“The classroom teachers and [REDACTED] teachers work together, which makes UP’s inclusion program successful. The [REDACTED] teacher is the “point person” and advocate for the [REDACTED] student at UP. The [REDACTED] teacher supports the classroom teachers and helps them modify their instruction to meet the needs of the [REDACTED] students. Classroom teachers typically modify instruction to meet their students’ needs since many UP students have learning issues. They often incorporate a variety of special education techniques and strategies into their instruction as well, including the chunking of material, repetition, checking in for understanding, refocusing and redirection. In addition, classroom teachers provide accommodations to their students, including: extended time and “quiet rooms” for test-taking; preferential seating; language exemptions; and the use of a laptop computer in the classrooms. UP also employs outside speakers, as well as members of the [REDACTED] team, to provide teacher development to classroom teachers in learning how to teach the learning challenged child.” (Ex E 2)

F 2023-2024 UP Description of Independent Transition Program (ITP)

Describes the UP program which decreases the amount of student support, while increasing independence.

G 06-23-2023 UP School Calendar for 2023-2024 School Year

UP 23-24 school calendar.

H. 2-23-2024 UP Student Schedule Semester (1 page)

Student semester 1 academic schedule, including [REDACTED] sessions.

I 09-07-2023-10-13-2023 Attendance History 2023-2024 School Year

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

J 09-07-2023-10-20-2023 UP Q1 Academic Report with Attendance

Student is evidenced to be successfully completing UP academics classes. K 03-10-2023 & 03-15-2023 UP Enrollment Contract-Returning Student with ITP

Student UP Tuition is set forth as:

- UP with [REDACTED]: $[REDACTED].00

- Bookstore: $[REDACTED] (Ex K 1)

Total: $[REDACTED].00

Tuition set forth includes the Student’s [REDACTED] program. (T 27)

Parent is obligated to payment, indicated by signature upon the Contract. (Ex K 4)

L 03-15-2023 UP Invoice

UP Invoice, inclusive of the [REDACTED] program, includes:

$[REDACTED].00, plus a Bookstore fee of $[REDACTED], for a Total of

$[REDACTED].00. (Ex L 1)

M 10-12-2023 UP Affidavit of Payments

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

N March 2023-July 2023 Proof of Payments

Proof of payment related to Student’s UP 23-24 Tuition.

O 10-30-2023 UP Affidavit of Testimony-[REDACTED], Co- Director [REDACTED] Program

Witness Testimony includes:

- Qualifications; - Employment at the UP (Ex O 1); - General characteristics of the UP, such as Certification and mission; - Class sizes of 12 to 145 students; - students who require specialized education and those who may not are grouped in the same classroom. As the general understanding of learning disabilities has increased over the last 40 years, UP has offered its students needed additional support to address their learning needs (Ex O 2); - Characteristics of the JP program, such as: o Student is assigned to a special education teacher (Ex O 2); o Student has either an IEP or evaluation indicating the nature of disability and needs; o Daily small group session, to organize for the day and obtain assistance with homework; o Quiet study time each day focused on organizing assignment, and utilizing CANVAS (Ex O 3); o individual sessions, which occur twice weekly, During that time, the [REDACTED] teacher meets individually with students for 40 minutes and works on supporting them with their specific needs and providing extra support for their classes. Individual sessions are tailored specifically to the student’s needs. During these sessions, special attention is paid to organization, re-teaching, clarifying what is taught in the classroom, if necessary, breakdown assignments, and planning challenging projects or long-term assignments (Ex O 4); - Mental Health issues are addressed via licensed clinicians and a full time psychologist (Ex O 4); - Detailing use of the CANVAS program, utilized to communicate with Parents and teachers (Ex O 5); - Detailing collaboration between UP teachers and the [REDACTED] component (Ex 5-6); - Familiarity with the Student (Ex O 7); - Details of Student educational needs, including: • executive function deficits • diagnosed with ADHD • difficulties with organization • can be impulsive and rigid in his thinking • needs support with time management, organization and planning/prioritizing his assignments • needs help with written expression, specifically with organization of ideas and adding details to support them • difficulties with sustaining attention and focus (Ex O 7-8); - Details of Student’s [REDACTED] teacher qualifications; - Student areas of challenge and focus of supports delivered via the [REDACTED] sessions (Ex O 8-9); - Student class sizes: English - 13:1; Math -10:1; History - 9:1; Science - 13:1 & Spanish - 16:1 (Ex O 9); - Student teacher qualifications and details regarding Student progress in classes, including: English (Ex O 9-10); Math (Ex O 10-11); History (Ex O 11); Science (Ex O 11-12); and Spanish (Ex O 12-13); - Regarding Student overall 23-24 progress: “The support [Student] receives for the 2023-2024 school year was designed to allow him to make meaningful progress. We continue to monitor and individualize instruction for him to ensure he benefits from the curriculum. Though early in the school year, [Student] has already made progress in his class participation, study skills, written expression and executive functioning skills.” (Ex O 13); - Student has access to Counseling support as needed (Ex O 13); and - Witness professional opinion is that: “[UP] is an appropriate placement for [Student] for the 2023-2024 school year. The small class sizes allow him to get more individualized attention and support from his teachers. The tracking system allowed him to be appropriately challenged and receive the necessary support of the [REDACTED] program.” (Ex O 13)

P 10-26-2023 Department of Education Due Process Response

The DOE Due Process Response is mostly incomplete.

FINDING OF FACTS AND DECISION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DOE offer of FAPE for the 23-24 School Year

The DOE opted not to present a defense to the Parent’s allegations.

The district has presented no witnesses in this matter.

An IEP, applicable to the 23-24 school year, has not been evidenced.

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

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

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

UP Placement for the 23-24 School Year

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

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

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

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 C)

UP Tuition, inclusive of the [REDACTED] Program, is evidenced as:

Tuition with [REDACTED]: $[REDACTED].00 Bookstore: $[REDACTED] Total: $[REDACTED].00 (Ex K 1, L 1 & T 27)

Parent is obligated to payment, indicated by signature upon the Contract. (Ex K 4)

Parent has paid $[REDACTED] so far, of the Student’s 23-24 Tuition. (Ex M)

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.

INDEPENDENT EDUCATIONAL EVALUATIONS

The IDEA provides parents with a number of procedural safeguards. Among them is the "right . . . to obtain an independent educational evaluation of the child," which in turn means "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question" (34 CFR 300.502[a][1], [3][i]). Parents who express a disagreement with an evaluation conducted by the district also have the right to seek an IEE conducted at public expense in some circumstances (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; see also Lauren W. v. DeFlaminis, 480 F.3d 259, 275 [3d Cir. 2007] [explaining that parents do not have the right to an IEE at public expense where parents actually agreed with the school's evaluation]; Edie F. v. River Falls Sch. Dist., 243 F.3d 329, 335 [7th Cir. 2001] [explaining that parents do not have the right to an IEE at public expense where their disagreement was with the result of the child's IEP not with a particular diagnosis or methodology of evaluation]; M.C. v. Katonah/Lewisboro Union Free Sch. Dist., 2012 WL 834350, at *11–12 [S.D.N.Y. Mar. 5, 2012]; M.V. v. Shenendehowa Cent. Sch. Dist., 2013 WL 936438, at *6 [N.D.N.Y. Mar. 8, 2013]; R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense that was sought for additional information]). "If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the results of the evaluation [m]ust be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child" (34 CFR 300.502[c])

In this case the DPC relief sought included: Cost of Evaluations. (Ex A 4)

Evidence specific to this claim is not sufficiently presented to support this relief.

This relief is therefore denied.

ORDER

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

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

3. The DOE shall fund Student’s [REDACTED]School (UP), 23-24 Tuition, via reimbursement, in the amount of $[REDACTED].00.

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

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

DATED: December 10, 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.