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NEW YORK STATE EDUCATION DEPARTMENT
IMPARTIAL DUE PROCESS HEARING
Case Cover Sheet
IHRS or NYC Case No.: 264926
School District: [Redacted]
Impartial Hearing Officer: Patricia L. Murrell, Esq., IHO
Request/Complaint Date: November 1, 2023
Date of Appointment: November 3, 2023
Filed/Date of Decision: November 18, 2024
NEW YORK STATE EDUCATION DEPARTMENT
IMPARTIAL DUE PROCESS HEARING
STUDENT, a minor, by and through Case No. 264926
his/her Parent(s),
[REDACTED] and
[REDACTED]
Petitioners,
Patricia L. Murrell, Hearing Officer
- against -
New York City Department of Education
School District # [Redacted]
FINDINGS OF FACT AND DECISION
Respondent.
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 November 1, 2023, by the petitioners, [Redacted] and [Redacted], the parents (“Petitioners” or “Parents”) of [Redacted], currently a [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 November 3, 2023, this Hearing Officer was appointed to preside over Case No. 264926. The Prehearing Conference (“PHC”) was held on December 14, 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 2023/2024 school year, based on the District’s alleged failure to (i) consider sufficient evaluative data prior to developing the Student’s individualized education program (“IEP”); (ii) recommend an appropriate special education program; and/or 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 January 17, 2024 and February 15, 2024, during which it was reported that the matter was under investigation to determine whether a settlement could be reached. However, on March 19, 2024, the District reported that the investigation remained incomplete; and the Parent requested scheduling of the due process hearing (“Hearing”).
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 closed Hearing telephonically and via videoconference on April 9, 2024, during which oral opening statements were presented on the 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. Pursuant to directive, the ‘Joint Statement of Facts’[2] was submitted on April 15, 2024; and on the ‘Statement of Issues to be Adjudicated’[3] was submitted on April 17, 2024. Subsequent to which, the District’s proposed exhibits (“1 through 3”) were proffered for submission into evidence, without objection; and the Parents’ proposed exhibits (“A through O”) were proffered for submission into evidence, without objection. The Respondent did not proffer any witnesses. On May 16, 2024 and May 28, 2024, the Petitioners presented testimony by Parent, [Redacted]; and [Redacted] (“Head Teacher”) at the [Redacted] School (“Private School”); and proffered Exhibit “P” for submission into evidence, without objection. The witnesses attested that the testimony provided during the Hearing was true and correct; and each were subjected to cross-examination. On June 5, 2024, the Respondent and Petitioners each presented an oral closing statement, and the Hearing was concluded. The Hearing Transcripts were circulated on April 10, 2024, April 18, 2024, May 21, 2024, May 29, 2024 and June 6, 2024. On July 30, 2024, the Parents submitted their Post-Hearing/Closing Brief;[4] and the District submitted its Post-Hearing/Closing Brief.[5] The Record was Closed on November 4, 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 2023/2024 school year.
B. Whether the Parents were entitled to receive District funding/reimbursement for the Student’s tuition, during the 2023/2024 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 February 28, 2023, Pediatric Neuropsychologist [Redacted], Ph.D. (“Neuropsychologist”) issued the observations underlying a Neuropsychological Evaluation that was conducted of the Student on January 17, 2023, February 2, 2023, February 9, 2023, February 13, 2023 and February 25, 2023, pursuant to the Parents’ referral/request to provide guidance for educational and treatment planning, subsequent to an assessment of her then-current cognitive, pre-academic, language and social-emotional functioning; whereby the sub-tests and assessments included inter alia, Wechsler Preschool and Primary Scale of Intelligence-4th Ed. (“WPPSI-IV”), Clinical Evaluation of Language Fundamentals-Preschool (“CELF-Preschool 3”), Developmental Neuropsychological Assessment-2nd Ed. (“NEPSY-II”), Wechsler Individual Achievement Test-4th Ed. (“WIAT-4”), Young Children’s Achievement Test-2nd Ed. (“YCAT-2”), and Behavior Assessment System for Children-3rd Ed. (“BASC-3”) (together, the “2023 Neuropsychological Evaluation”). The Neuropsychologist reported that the Student was diagnosed in 2019 with Macrocephaly and Chromodomainhelicase-DNA-binding protein 8 (“CHD8”), which generally results in delays in speech language skills, cognitive functioning, attention and motor skills; she was evaluated through the Committee on Preschool Special Education (“CPSE”); began receiving Occupational Therapy (“OT”), Physical Therapy (“PT”), Speech-Language Therapy (“SLT”); and received placement in a 15:2 Prekindergarten class at [Redacted] (“Pre-K School”). In assessing her pre-academic skills, it was determined that the Student demonstrated significant variability; specifically, while her math skills were intact, she exhibited highly inconsistent reading and writing skills, with weaknesses in language and phonemic proficiency that placed her at significant risk for a language-based learning disorder, particularly Dyslexia. The Neuropsychologist further noted that the Student exhibited distractibility, impulsivity and weaknesses with sustained attention, which hindered her memory and learning skills, and resulted in a diagnosis of Attention-Deficit/Hyperactivity Disorder (“ADHD”), Combined Presentation; and due to her difficulty completing tasks, underdeveloped stamina, and off-balance gait, it was also determined that she met the criteria for Developmental Coordination Disorder (“DCD”) (a/k/a Dyspraxia, together with Macrocephaly, CHD8, Dyslexia and ADHD, the “Student’s Diagnoses”). The Neuropsychologist opined that to ensure the Student’s access to instructional increases and appropriate progress, based on her medical history, current profile, and weaknesses in speech and language, pre-academic, attention, executive functioning, fine motor and motor planning; it was recommended that she requires intensive, specialized, and individualized interventions, which must be received as part of a full-time placement in a nurturing, small and supportive specialized educational setting; with a strong language-based curriculum; in an academically and cognitively challenging and engaging program; with a small student-to-teacher-ratio, alongside peers of similar potential, who do not have severe emotional or behavioral problems. Further opining that absent adherence to the recommendations, the Student is not expected to make appropriate progress and will be put at risk for regression. [6]
3. On March 23, 2023, the enrollment contract for the Student’s attendance at the Private School was executed (“Enrollment Contract”), which set forth the cost of tuition, during the 2023/2024 school year, at seventy-nine-thousand-eight-hundred-ninety-five ($79,895.00) dollars (“Tuition”). On December 5, 2023, the Chief Financial Officer, [Redacted], duly-executed an affidavit, which confirmed that the Parent had paid seventy-nine-thousand-eight-hundred-ninety-five ($79,895.00) dollars, as full Tuition for the Student’s attendance at the Private School during the period between September 7, 2023 and June 13, 2024.[7]
4. In May 2023, [Redacted], Head of Early Childhood Division at the Pre-K School, drafted a letter indicating that the Student’s developmental delays have impacted her ability to participate effectively in our program; and her lags in several areas of development requires a specialized setting. The Head of Pre-K opined that remaining in a mainstream school and classroom no longer serves her and, in fact, would be detrimental to her development; the Student needs to be in a specialized environment with a small student-to-teacher-ratio, with teachers who have specialized training. [8]
5. On May 12, 2023, Speech-Language Pathologist [Redacted], MS CCC-SLP (“Pathologist”), drafted a letter regarding the SLT services that she had provided to the Student since December 2022, during which the Student demonstrated slow and steady progress with her expressive and receptive language skills; improved her ability to follow directions involving spatial and qualitative concepts, organize items by category, and sequence events in a story. The Pathologist reported that the Student’s most challenging areas continue to be answering open-ended questions, following multi-step directions, understanding quantitative concepts, and maintaining a conversational topic. Thereafter the Pathologist strongly recommended that the Student continue to receive SLT to address her expressive and receptive language weaknesses; and opined that she would benefit tremendously from a language-based, full-time special education school with a low student-to-teacher ratio, where SLT could be incorporated directly into her academic program. [9]
6. On June 5, 2023, the CSE convened a meeting (“2023 CSE Meeting”), which was attended telephonically by the Parents, Special Education Teacher [Redacted], General Education Teacher [Redacted], School Director [Redacted], and [Redacted] participated in a dual-capacity as the District Representative and School Psychologist (together, “2023 CSE Team”); who developed an IEP for the 2023/2024 school year, with an implementation date of September 7, 2023 (“2023 IEP”), which identified the Student’s Diagnoses; classified her as a child with an Other Heath Impairment; and referenced certain findings related to the Student’s academic achievement, functional performance and learning characteristics as reported in the 2023 Neuropsychological Evaluation. The 2023 IEP noted that the Student’s emerging academic skills and performance varied according to tasks; her Math skills were just within expectations; however, ‘her performance on measures of Reading and Writing, particularly her phonological and writing skills, were notably reduced and below expectations for her age and grade.’ The 2023 IEP recommended a ten-month 12:1+1 Special Education Program of English Language Arts (“ELA”) (2 periods/day), Math (1/day), Social Studies (1/day) and Sciences (1/day); with related services of OT (2x30) and Group-of-2 SLT (2x30) (together, the “2023 Recommended Program”); to be provided in a NYC-DOE Non-Specialized District 1-32 school. The 2023 IEP indicates that the Parent expressed concerns regarding the Student’s struggle with academics, propensity to become upset quickly over minimal things, and the need for continued OT to improve her fine motor planning and coordination. The 2023 IEP ‘Management Needs’ included, inter alia, continued SLT to address her language weaknesses; continued OT to improve motor-planning, sequencing, visuo-motor and adaptive skills; focusing prompts; multimodal presentation of academic material; and extra time to complete tasks. The SLT, OT, Attention and Classroom ‘Annual Goals’ developed for the Student, included, inter alia, engaging in conversational exchanges, expanding receptive-expressive vocabulary, improving sensory processing and regulation skills, increasing self-regulation in behavior, attention span and emotional reactions. The 2023 IEP indicated that placement in an integrated co-teaching (“ICT”) class was considered but rejected on the basis that the Student’s “history and current profile warrant placement in a small, supportive special education K setting with a strong language-based curriculum and a small student-to-teacher ratio. Interventions must be provided in an informed, nurturing, and encouraging way to help [the Student] develop a strong sense of motivation and engagement as a learner. Additionally, she requires a program that is academically and cognitively challenging and engaging alongside peers of similar potential. The other children in her classroom cannot have behavioral or emotional problems.” Notably, the 2023 IEP does not indicate that any other evaluative data was considered by the 2023 CSE Team prior to or during the 2023 CSE Meeting. [10]
7. On June 6, 2023, the District issued a Prior Written Notice (“2023 PWN”), which reiterated the 2023 Recommended Program; indicated that the evaluation, procedure, assessment, record and/or reports used in the decision included a Neuropsychological Assessment, dated May 30, 2023; Speech and Language Assessment, dated September 14, 2022; and Classroom Observations, dated June 5, 2023; advised that the Student would be in a specialized language-based classroom, within a specialized school, and she will receive OT and SLT services; and stated that the school listed above was chosen because it can provide the program and services on your child's IEP. [11]
8. On June 6, 2023, the District issued a school location letter (“2023 SLL”), which recommended placement at P.S. [Redacted] (“Public School”) for the Student’s 2023/2024 school year (“2023 Recommended Placement”). [12]
9. On June 23, 2023, the Parent transmitted an Email to [Redacted], which stated: “[w]e received our DOE Recommendation and we wanted to confirm that [the Public School] does not currently offer a 12:1+1 class; and on June 23, 2023, [Redacted], Psy.D., the Psychologist at the Public School, provided an Email response to the Parent: “I am confirming that [the Public School] does not have a 12:1+1 class.” [13]
10. On June 26, 2023, the Parent transmitted an Email to T5 Placement, stating: “Thank you for the attached offer regarding our daughter . . . We have contacted [the Public School] and they do not have a special class with a 12:1+1 staffing ratio. Please advise. [14]
11. On June 30, 2023, T5 Placement transmitted an Email to the Parent, which stated: “NYC Public Schools will ensure that [the Student] receives all their IEP mandated programs and services. Because the Turning 5 IEP-based Kindergarten placement process is ongoing and continues to provide updated and/or additional placements to schools, individual schools may be required to adjust their programming as they receive additional T5 students. All families with a valid Kindergarten offer and/or Turning 5 placement will be welcomed, pre-registered and enrolled at the placement school. We have contacted your school’s Borough Office and the NYC Public Schools Special Education Office to support them in this process. [15]
12. On August 27, 2023, a ten-day-notice (“TDN”) was submitted to the CSE, which advised, inter alia, that the Parents take issue with the District’s failure to develop an appropriate IEP for the Student’s 2023/2024 school year; and if the procedural and substantive errors are not cured and an appropriate school placement offered, the Parents intend to unilaterally place the Student at the Private School and seek funding from the District. [16]
13. On August 31, 2023, the District issued a response to the TDN, which advised that the NYC-DOE has determined that at this time your 10-day notice of unilateral placement claim is not appropriate for settlement. If you are still interested in pursuing a unilateral placement or program at the District’s expense you must file a Due Process Complaint. [17]
14. On January 28, 2024, the Head Teacher reviewed and approved the Mid-Year Report, which indicated that the Student was enrolled in a program at the Private School that offers a multisensory and explicit teaching approach, consisting of ‘Orton-Gillingham’, ‘Sounds in Motion’ and ‘Handwriting Without Tears’; which significantly contributed to the development of the Student’s reading, writing and spelling skills, together with steady progress academically and socially. [18]
15. The Speech-Language Pathologist [Redacted] M.A., CCCSLP, TSSLD issued the Mid-Year Speech and Language Remediation Report for the 2023/2024 school year, which indicated that the Student presents with receptive and expressive language difficulties, with reduced formulation, organization and word-retrieval challenges that are impacted by language processing abilities and varying levels of focus; for which she received whole group, dyad and push-in SLT services that focus on word-retrieval, organization/formulation, grammar/syntax and narratives. The Student exhibited some progress in accurately completing verbal reasoning and critical thinking activities; recalling specific and concrete details from stories; and sequencing three to four pictures. Continuation of SLT was recommended to also address, inter alia, her auditory attention, listening comprehension, narrative development and conversational skills. [19]
16. The Occupational Therapist [Redacted], B.S., OTR/L at the Private School issued the Mid-Year Occupational Therapy Remediation Report for the period between September 2023 and January 2024, which indicated that the Student struggles with attention, fine and gross motor skills, and body awareness; however, with ongoing support and prompts, she continues to demonstrate steady progress toward age-appropriate skills, classroom function and task completion; and when focused, she is able to perform various graphomotor skills with increased control and precision. [20]
17. The Petitioners proffered the Head Teacher [Redacted] as a witness, who holds a Master’s in Early Childhood Special Education; Bachelor’s in Communication; and Certification as an Orton-Gillingham Classroom Educator. [21]
18. The Head Teacher testified that the Private School is an independent school that utilizes special education, multi-sensory and supportive teaching techniques to provide an individualized tailored-curriculum to three-hundred-eighty (380) bright students with learning difficulties in grades Pre-K through Middle School. The Head Teacher identified certain deficits that impact the Student’s education, including processing speed, comprehension, expressive language, retrieval, formulation, organization and attention; and authenticated and described the Student’s daily schedule. The Head Teacher testified that the Student was placed in a 11:1+1 classroom, with a Head Teacher and Assistant Teacher, who used the structured, sequential, reiterative, differentiated, multi-sensory instruction/curriculum of ‘Orton-Gillingham’, ‘Yaled Called Ruler’, ‘Stern Structural Arithmetic’ and ‘Singapore Math’; together with an Occupational Therapist and Speech Therapist who provided push-in and pull-out OT, SLT and Reading services to the students fifty (50%) percent of the week, during which, the Reading Group would be 6:1 and the Math Group would be 5:1. The Head Teacher further testified that the Student was making progress in Reading, she has obtained a grip on consonants and short vowel sounds; Math, she has a solid grasp on skip-counting, measuring, patterning and sorting; Handwriting; and overall, she has increased her level of participation and confidence since the beginning of the school year. [22]
19. The Petitioners proffered the Parent as a witness, who provided testimony regarding the Student’s developmental and educational history; the Student’s Diagnoses; and the 2023 Neuropsychological Evaluation that was provided to the School Psychologist, [Redacted], in April 2023. The Parent confirmed his attendance at the 2023 CSE Meeting, during which he was advised of the proposed 2023 Recommended Program and 2023 Recommended Placement; subsequent to which the Parent authenticated his correspondence with the School Psychologist in June 2023, during which he was advised that a 12:1+1 program could not be provided at the Public School. The Parent testified that the Student made noticeable academic progress at the Private School during the 2023/2024 school year; specifically, she had improved reading, writing, counting, responsiveness, focus and attention. The Parent further testified that he was aware of his ability and willingness to withdraw from the Enrolment Contract, without financial penalty, if the District had provided the Student with an appropriate program. [23]
20. During cross-examination, the Parent testified that he did not have a personal recollection of the Neuropsychological Assessment, dated May 30, 2023, which was listed on the 2023 PWN. The Parent further testified that his interpretation of the ‘form’ Email received from T5 Placement was that the Parents would be notified if the 2023 Recommended Placement could, in fact, provide a 12:1+1 program thereat, for the Student’s 2023/2024 school year. During redirect, the Parent confirmed that he did not receive any response from either the New York City (“NYC”) Borough Office, NYC Public School Special Education Office, and/or the Public-School regarding implementation of the 2023 Recommended Program at the 2023 Recommended Placement. [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 2023/2024 school year, whether: (1) the District failed to consider sufficient evaluative data; (2) the District failed to develop an appropriate IEP; (3) the District failed to recommend an appropriate placement, which could implement the mandated program; (4) the District met its statutory burden of proof, production and persuasion relating to the alleged denials of FAPE; and (5) equitable considerations favor Tuition funding or reimbursement 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 2023/2024 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. Bd. 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
The Parents assert that the District’s failure to develop an appropriate IEP for the Student, constituted a denial of FAPE for the 2023/2024 school year.
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).
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 2023 CSE Meeting, the District had access to the 2023 Neuropsychological Report, which determined that the Student presented with certain challenges, including, inter alia, pre-academic delays and weaknesses in her language and phonemic proficiency, attention, executive functioning, fine motor and motor planning skills. Notably however, the 2023 CSE Team did not obtain and the 2023 IEP did not otherwise reference any other evaluations, findings and/or opinions of other assessments that were considered or conducted of the Student; the results of which would have lent a more adept guidance to the 2023 CSE Team in its efforts to develop recommendations for an educational program and placement suitable for handling the Student’s unique needs during the 2023/2024 school year. In addition, the District failed to proffer any testimonial or documentary evidence to support any of the ‘assessments’ listed on the 2023 PWN, which were purportedly ‘used in the decision’ to develop the 2023 IEP, which offered the 2023 Recommended Program and the 2023 Recommended Placement. Accordingly, “[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 violation of its responsibilities under IDEA as a failure to provide an adequate IEP.” Forest Grove, 557 U.S. 230, 238-239. Here, the Hearing Record is bereft of any indication that the CSE developed an appropriate IEP subsequent to the 2023 CSE Meeting. Consequently, 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, the District’s failure to develop an appropriate IEP, prior to commencement of the Student’s 2023/2024 school year, constituted a procedural violation of the IDEA.
1. SUFFICIENCY of EVALUATIONS and ASSESSMENTS
The Parents contend that the District failed to consider sufficient evaluative data in advance of developing the 2023 IEP.
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 her 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 Hearing Record evinces the CSE’s awareness that the Student presented with weaknesses in her cognitive functioning, language, phonemic proficiency, attention and executive functioning; which resulted in distractibility, impulsivity, and hindered her memory and academic learning. Nevertheless, the Hearing Record does not reflect that the independent evaluative findings, recommendations and/or opinions of the 2023 Neuropsychological Evaluation were fully adopted into the 2023 IEP. More particularly, to ensure her access to instructional increases and appropriate progress, the Neuropsychologist recommended, inter alia, that the Student required intensive, specialized and individualized interventions to be provided as part of a full-time placement in a nurturing, small and supportive specialized educational setting; with a strong language-based curriculum; in an academically and cognitively challenging and engaging program; with a small student-to-teacher-ratio, alongside peers of similar potential. Therefore, it was incumbent upon the District to offer evidence during the Hearing that the Student could receive an educational benefit under the 2023 Recommended Program at the 2023 Recommended Placement, without, also integrating into the 2023 IEP, a mandate reflecting a recommendation for the Student’s educational and supportive services to be provided in a small classroom setting, in a special education school.
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 2023 CSE Meeting, which established how the Student could benefit from the recommendations set forth in the 2023 IEP. Hence, the District’s failure to fully consider the evaluative data provided by the 2023 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 her unique needs and challenges. Fundamentally, the absence of sufficient evaluative data and information used and/or considered by the District during the 2023 CSE Meeting, which could have addressed the management needs, goals 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 her 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 fully and reasonably consider the 2023 Neuropsychological Evaluation is regarded as a serious procedural violation, which prevented the 2023 CSE Team from obtaining information necessary to properly assess the Student and identify strategies to address her 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 her suspected disabilities, prior to conducting the 2023 CSE Meeting and thereafter prior to developing the 2023 IEP, which included the 2023 Recommended Program and 2023 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 2023 IEP did not require further redress to appropriately meet the Student’s unique needs arising from her (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 her right to a FAPE for the 2023/2024 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 her individual needs and (dis)abilities; and/or could otherwise be deemed appropriate to enable her to make progress in light of her unique circumstances. In addition, the District failed to proffer any testimonial or documentary evidence, which lends credence to a contention that the 2023 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 her academic, language, attentional and executive-functioning challenges.
1. MANAGEMENT NEEDS and MEASURABLE ANNUAL GOALS
The Parents contend that the 2023 IEP failed to contain appropriate management needs and measurable annual goals to address the Student’s needs and challenges.
An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the Student’s needs that result from the Student’s disability to enable the Student to be involved in and make progress in the general education curriculum; and meet each of the Student’s other educational needs that result from the Student’s disability. 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 CFR 300.320(a)(2)(i); 8 NYCRR 200.4(d)(2)(iii). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee. 8 NYCRR 200.4(d)(2)(iii)(b); 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 CFR 300.320(a)(3). However, the IDEA does not require that the District create a specific number of goals for each of a Student’s deficits, and the failure to create a specific annual goal does not necessarily rise to the level of a denial of FAPE; rather, a determination must be made as to whether the IEP, as a whole, contained sufficient goals to address the Student’s areas of need. J.L. v. New York City Dep’t of Educ., 2013 WL 625064, at *13 (S.D.N.Y. Feb. 20, 2013); P.K. v. New York City Dep’t of Educ., 819 F. Supp. 2d 90, 109 (S.D.N.Y. 2011), aff'd, 526 Fed. App’x 135 (2d Cir. 2013); C.M. v. New York City Dep’t of Educ., 2017 WL 607579, at *20-*21 (S.D.N.Y. Feb. 14, 2017).
As demonstrated by the Hearing Record, there were insufficient provisions made by the 2023 CSE Team to develop the requisite program, services and appropriately tailored goals, which would have enabled the Student to fully access, participate and progress in a special education curriculum designed to meet her myriad of unique needs and challenges. Here, in addition to its failure to sufficiently consider evaluative data, the CSE also neglected to establish appropriate goals for the Student’s 2023/2024 school year. More particularly, although the 2023 CSE Team provided some redress in the ‘Annual Goals’ section for the Student’s SLT, OT, Attention and Classroom; however, the 2023 IEP failed to develop any Goals to address the Student’s Reading and Writing challenges. This failure was despite the Neuropsychologist’s determination that the Student exhibited highly inconsistent reading and writing skills; and notwithstanding the CSE’s acquiescence that ‘her performance on measures of Reading and Writing, particularly her phonological and writing skills, were notably reduced and below expectations for her age and grade.’
As discussed supra, the recommendations, opinions and findings relating to the Student’s unique cognitive, academic, language, attentional and executive-functioning needs and challenges, as set forth in the 2023 Neuropsychological Evaluation, indicated that the Student required specific educational interventions and supports, which should have been expounded upon and enumerated in the ‘Management Needs” section of the 2023 IEP. Management needs are defined by State regulations as “the nature of and degree to which environmental modifications and human or material resources are required to enable the student to benefit from instruction” and shall be determined in accordance with the factors identified in the areas of academic achievement, functional performance and learning characteristics, and social and physical development. 8 NYCRR 200.1(ww)(3)(i)(d). And, ‘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). 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., 2017 WL 3446783, at *22.
Here, the 2023 IEP reflects a brief listing of ‘Management Needs’, which include, inter alia, continued SLT to address her language weaknesses; continued OT to improve motor-planning, sequencing, visuo-motor and adaptive skills; focusing prompts; multimodal presentation of academic material; and extra time to complete tasks. Missing however, are any specific academic Management Needs that would adequately serve to enable her Teachers to provide the appropriate level and type of intensive, specialized and individualized interventions and academic instruction to properly address her highly inconsistent Reading and Writing skills that underly and are associated with the Student’s Diagnoses.
The Hearing Record demonstrates that the District failed to proffer any testimonial or documentary evidence, which supports a contention that the 2023 Recommended Program abounding with incomplete Goals and Management Needs, could effectively provide the Student with adequate educational benefits to contend with her unique needs in the 2023 Recommended Placement. Consequently, an examination of the 2023 IEP does not reflect that the Management Needs and/or the Annual Goals set forth therein were sufficiently measurable, implementable or reasonably in proper accord to provide redress in relation to the Student’s cognitive and academic challenges related to Reading and Writing. Accordingly, 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 her individual (dis)abilities; and/or could otherwise be deemed appropriate to make progress in light of her unique circumstances. Therefore, it is this Hearing Officer’s determination that the Student was entitled to but was not afforded an appropriate educational program by the CSE during the 2023/2024 school year, which offered the requisite interventions and accommodations that were reasonably calculated to enable her to receive appropriate educational benefits and supports. Accordingly, the 2023 Recommended Program set forth in the 2023 IEP denied the Student a FAPE for the 2023/2024 school year.
ii. RECOMMENDATION OF PLACEMENT
The Parents assert that the District failed to recommend an appropriate educational placement for the Student, which could implement the 2023 Recommended Program.
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).
1. IMPLEMENTATION OF RECOMMENDED PROGRAM at RECOMMENDED PLACEMENT
The IDEA proscribes that the Student was entitled to an appropriate educational placement in a supportive special education program, which offered the requisite interventions and accommodations to promote progress and support the Student’s academic progression. Here, the 2023 Recommended Program consisted of a 12:1+1 Special Class; however, upon contacting the School Psychologist at the 2023 Recommended Placement, the Parent was immediately advised that 12:1+1 accommodations were not available thereat for the 2023/2024 school year. Based thereon, the Hearing Record demonstrates that the District acted in opposition to their statutory obligation and failed to offer the Student placement at a school that could confer a meaningful educational benefit in relation to her individual needs and (dis)abilities; and/or an educational location suitable for implementation of the 2023 Recommended Program, where the Student could access a special education program, which addressed her cognitive, academic, language, attentional, and executive-functioning challenges. Accordingly, upon full review and due consideration, it is this Hearing Officer’s determination that the Student was entitled to but was not afforded an appropriate educational placement, which could fully implement an appropriate supportive educational program, that was reasonably calculated to enable the Student to receive educational benefits to address her unique needs. Consequently, in the absence thereof, it is this Hearing Officer’s finding that the 2023 Recommended Placement was not appropriate for the 2023/2024 school year, constituted a substantive violation of the IDEA, and denied the Student a FAPE.
2. MEANINGFUL PARTICIPATION
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, the 2023 IEP neither specified that any other documents nor evaluations were considered or conducted by the District prior to the 2023 CSE Meeting. Here, although the 2023 IEP memorializes certain findings and opinions provided by the Neuropsychologist; however, the 2023 CSE Team nevertheless failed to fully adopt the recommendations contained in the 2023 Neuropsychological Evaluation, which sought to ensure that the Student would be provided with access to intensive, specialized and individualized interventions as part of a full-time placement in a nurturing, small and supportive specialized educational setting; with a strong language-based curriculum; in an academically and cognitively challenging and engaging program; with a small student-to-teacher-ratio, alongside peers of similar potential. 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 her Diagnoses, the absence of which precluded the District from undertaking a comprehensive analysis of the Student prior or during the 2023 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 her (dis)abilities. Consequently, it is this Hearing Officer’s finding that the District effectively infringed upon the Parents’ ability to be involved in the Student’s educational programming, whilst impeding the Parents’ 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 where the Parents are “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) 2023 CSE Meeting was held without fully evaluating the Student’s needs; (ii) District failed to develop an appropriate IEP; (iii) Recommended Program or Recommended Placement should be regarded as appropriate for the Student; or (iv) 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 2023/2024 school year.
E. UNILATERAL PLACEMENT
The Parents contend that subsequent to the CSE’s failure to consider sufficient evaluative data in advance of developing the 2023 IEP, which resulted in the recommendation of an inappropriate program and unimplementable placement for the 2023/2024 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 and reimbursement for the full cost of Tuition for her attendance thereat, during the 2023/2024 school year, in an aggregate amount not to exceed seventy-nine-thousand-eight-hundred-ninety-five ($79,895.00) 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 an independent school that utilizes special education, multi-sensory and supportive teaching techniques to provide an individualized tailored-curriculum to three-hundred-eighty (380) bright students with learning difficulties in grades Pre-K through Middle School. 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 her (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 2023/2024 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 placed the Student in a 11:1+1 classroom, with a Head Teacher and Assistant Teacher who used the structured, sequential, reiterative, differentiated, multi-sensory instruction/curriculum and explicit teaching approach of ‘Orton-Gillingham’, ‘Sounds in Motion’, ‘Handwriting Without Tears’, ‘Yaled Called Ruler’, ‘Stern Structural Arithmetic’ and ‘Singapore Math’. The Student was also placed in a 6:1 for the Reading Group; 5:1 for the Math Group; and would receive whole group, dyad and push-in SLT and OT services. 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 her Diagnoses. Accordingly, it is this Hearing Officer’s finding that the Private School constituted an appropriate placement for the Student’s 2023/2024 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).
At the Private School, the Student made steady progress during the 2023/2024 school year, towards age-appropriate skills; with classroom functions and task completions; with responsiveness, focus and attention; socially; and academically in her reading, writing, math and spelling; including, accurately completing verbal reasoning and critical thinking activities; and recalling specific and concrete details from stories. 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 2023/2024 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 2023/2024 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 27 2023, 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 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 2023 CSE Meeting; 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 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 2023/2024 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 2023/2024 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 2023/2024.
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 consider sufficient evaluative data when developing the 2023 IEP; and consequently, failed to recommend an appropriate program that could be implemented at the ‘recommended placement’ for the Student’s 2023/2024 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 2023/2024 school year was reasonably calculated to meet her unique cognitive, academic, language, attention, social/emotional 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 2023/2024 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 2023/2024 school year. More particularly, within ten (10) business days of the Parents’ presentment of the ‘Tuition Affidavit’, evidenced herein as Exhibit “I”, the District shall remit full payment directly to the Parents in an amount not to exceed seventy-nine-thousand-eight-hundred-ninety-five ($79,895.00) 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 7, 2023 through and including June 13, 2024.
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 2023/2024 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 her rights violated, as a result of the District’s alleged (in)actions during the 2023/2024 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 2023/2024 school year, the (i) District failed to consider sufficient evaluative data in advance of developing the 2023 IEP; (ii) District failed to recommend an appropriate program; (iii) District failed to recommend an appropriate educational placement capable of implementing the ‘recommended program’; and (iv) 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 2023/2024 school year;
IT IS HEREBY FURTHER ORDERED that the Parents’ unilateral placement of the Student in the Private School during the 2023/2024 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 2023/2024 school year, in an amount aggregating and not to exceed seventy-nine-thousand-eight-hundred-ninety-five ($79,895.00) dollars;
IT IS HEREBY FURTHER ORDERED that within ten (10) business days of the Parents’ presentment of the ‘Tuition Affidavit’, evidenced herein as Exhibit “I”, the District shall remit full payment directly to the Parents in an amount not to exceed seventy-nine-thousand-eight-hundred-ninety-five ($79,895.00) dollars, which shall serve as a reimbursement for the amount paid to the Private School for the Student’s attendance thereat, during the 2023/2024 school year;
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;
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;
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;
IT IS HEREBY FURTHER ORDERED that the Parents’ request for Attorney Fees and Costs, is Denied; as this Hearing Officer is not authorized to award attorneys’ fees or other costs to a prevailing party; entitlement, if any, must be determined by a Court of competent jurisdiction;[25] 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;
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: November 18, 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 | November 1, 2023 | 4 |
| B. | Due Process Response | November 7, 2023 | 3 |
| C. | Ten-Day Notice | August 17, 2023 | 2 |
| D. | 10-Day Notice Response | August 31, 2023 | 1 |
| E. | Letter of Recommendation | May 2023 | 1 |
| F. | Neuropsychological Evaluation | February 28, 2023 | 15 |
| G. | Letter from Speech Language Therapist | May 12, 2023 | 1 |
| H. | Enrollment Contract | March 23, 2023 | 8 |
| I. | Payment Affidavit | December 5, 2023 | 1 |
| J. | Daily Schedule | 2023-2024 | 1 |
| K. | Attendance Record | 9/7/23-12/6/23 | 1 |
| L. | Mid-Year Report | January 28, 2024 | 12 |
| M. | Mid-Year Speech and Language Report | 2023/2024 | 3 |
| N. | Mid-Year Occupational Therapy Report | 9/2023-1/2024 | 4 |
| O. | Email Exchange – Parent and District | 6/26/23; 6/30/23 | 3 |
| P. | Email Exchange – Parent and District | June 23, 2023 | 2 |
| Total Exhibit Page(s): | 63 |
DISTRICT’S EXHIBIT(S)
| Ex. | Description | Date(s) | No. Page(s) |
| 1. | Individualized Education Program | June 5, 2023 | 18 |
| 2. | Prior Written Notice | June 6, 2023 | 5 |
| 3. | School Location Letter | June 6, 2023 | 4 |
| Total Exhibit Page(s): | 28 |
HEARING OFFICER EXHIBIT(S)
| Ex. | Description | Date(s) | No. Page(s) |
| IHO-1 | Joint Statement of Facts | April 15, 2024 | 2 |
| IHO-2 | Statement of Issues to be Adjudicated | April 17, 2024 | 2 |
| IHO-3 | Résumé of [Redacted] | Undated | 1 |
| IHO-4 | Parents’ Post-Hearing/Closing Brief | July 30, 2024 | 28 |
| IHO-5 | District’s Post-Hearing/Closing Brief | July 30, 2024 | 6 |
| Total Exhibit Page(s): | 39 |
Case No. 264926 (Exhibits – Cont.)
TRANSCRIPT(S)
| Description | Date(s) | No. Page(s) |
| Prehearing Conference | May 10, 2023 | 10 |
| Prehearing Conference | December 14, 2023 | 9 |
| Status Conference | January 17, 2024 | 9 |
| Second Status Conference | February 15, 2024 | 6 |
| Third Status Conference | March 19, 2024 | 14 |
| Due Process Hearing – Day One | April 9, 2024 | 18 |
| Due Process Hearing – Day Two | April 17, 2024 | 23 |
| Due Process Hearing – Day Three | May 16, 2024 | 139 |
| Due Process Hearing – Day Four | May 28, 2024 | 31 |
| Due Process Hearing – Day Five | June 5, 2024 | 30 |
| Total Transcript Pages: | 279 | |
| Total Document Page(s): | 409 |
[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 P); District’s Disclosure/Exhibit List, which are identified numerically: (1 through 3); “IHO” for the Impartial Hearing Officer Exhibits, (IHO-1 through IHO-5); 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, F-1; through, F-15.
[7] See, H-1; through, H-8; see also, I-1.
[8] See, E-1.
[9] See, G-1.
[10] See, 1-1; through, 1-18.
[11] See, 2-1; through 2-5. N.B.: Neither the Neuropsychological Assessment, dated May 30, 2023; Speech and Language Assessment, dated September 14, 2022; nor Classroom Observations, dated June 5, 2023, were proffered for admission into evidence; and therefore, were not examined by this IHO.
[12] See, 3-1; through, 3-4,
[13] See, P-1; P-2.
[14] See, O-3.
[15] See, O-1; O-2.
[16] See, C-1; C-2.
[17] See, D-1.
[18] See, L-1; through, L-12.
[19] See, M-1; through, M-3.
[20] See, N-1; through, N-4.
[21] See, IHO-3.
[22] See, Tr. 73:11-25; through and including, Tr. 107:1-16.
[23] See, Tr. 114:15-25; through and including, Tr. 138:1-6.
[24] See, Tr. 136:17-25; through and including, Tr. 148:1-15; see also, Tr. 172:4-25; Tr. 173:1-17; see also, Tr. 194:12-25; through and including, Tr 200:1-20. N.B.: Transcript incorrectly lists the Hearing Officer as the proponent of questions, instead of Parent’s Counsel ( see, Tr. 195:23-25; through and including, Tr. 198:1-25.)
[25] See, 20 U.S.C. § 1415(i)(3)(B); 34 CFR 300.517; Mr. B. v. E. Granby Bd. of Educ., 201 Fed. App’x 834, 837 (2d Cir. Oct. 27, 2006).