Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 181882

Student's Name: [Redacted]

District: [Redacted]

Hearing Requested By: Parents

Hearing Officer: Martin J. Kehoe III, Esq.

Actual Record Close Date: September 18, 2023

I. Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer ("IHO") in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act ("IDEA") and the New York State Education Laws. The School District will be referred to as District, the parent(s) as Parent(s) and the student will be referred to as Student.

II. Overview

This is a "reimbursement" case. A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep't. of Educ., 471 U.S. 359, 369-70 (1985). The analytical framework for deciding a reimbursement case is typically called a three-prong analysis.

This case involves a demand for tuition reimbursement for the 2017-2018 and 2018-2019 school years ("SYs"). The Parents filed the complaint notice on February 28, 2019. (Ex. A). I was appointed as the IHO on March 4, 2019. A hearing was held across multiple dates.^[1] The Parents introduced exhibits A-CC into the record and called one (1) witness: the Board Certified Behavior Analyst ("BCBA"). The District did not offer any exhibits, nor did they call any witnesses.

a. Parents' Position

The Parents allege that the District failed to provide the Student a Free Appropriate Public Education ("FAPE") for the 2017-2018 and 2018-2019 SYs. (Ex. A-1). The Parents claim that for the 2017-2018 SY, the Committee on Special Education ("CSE") failed to create an Individualized Education Plan ("IEP"). As for the 2018-2019 SY, the Parents maintain that the IEP developed by the CSE was procedurally and substantively flawed. (Ex. A-3). As a remedy, the Parent seek reimbursement or direct payment to the Private School for the tuition costs associated with the unilateral placement of the Student at the Private School for both SYs at issue. (Ex. A-5).

b. District's Position

The District did not present a Prong I case, introduce evidence, or bring any witness to testify on their behalf.

c. Background of the Case

Prior to the SYs at issue, the CSE held an IEP meeting for the Student on April 6, 2016 to develop and IEP for the Student for the 2016-2017 SY.^[2] The Parents received a school location later dated June 1, 2016; however, upon visiting the school, the Parents deemed that it was not appropriate to meet the Student's needs. (Ex. A-3). As a result, the Parents unilaterally placed the Student at the Private School and the District was ordered to pay tuition. (Ex. A-3).

The CSE did not develop an IEP for the 2017-2018 SY. Once again, the Parents unilaterally placed the Student at the Private School. The Parents provided the District notice of their intent to do so in a ten-day notice letter, dated August 26, 2017. (Ex. B.1-2). Then on February 15, 2018, the CSE held a meeting to develop an IEP for the Student for the 2018-2019 SY.^[3] (Ex. A.3-4). Following the meeting, on September 5, 2018, the Parents sent the District another ten-day notice in which they rejected the CSE's recommendations. (Ex. B.1-2). The Parents advised the District that they planned to unilaterally place the Student at the Private School, this time for the 2018-2019 SY. (Ex. B-2). Then, on February 28, 2019, the Parents filed the complaint notice. (Ex. A).

d. Student History

The Student was [Redacted] years old at the start of the 2017-2018 SY. In the complaint, the Parents provide a brief description of the Student:

[The Student] is a [Redacted] year-old student who has been diagnosed with autism and ocular albinism. She is visually impaired and cognitively delayed. [The Student] presents with severe academic, social and emotional delays as well as severe receptive, expressive and pragmatic speech and language delays. [The Student] is non-verbal at this time. She has significant sensory processing delays and requires a sensory diet throughout the day to help her regulate. [The Student] has difficulty making and maintaining eye contact. She engages in selfdirected behaviors. She also exhibits self-injurious behaviors such as hitting herself and pulling her own hair when agitated or dysregulated. She has difficulty with changes in routine and transitions. [The Student] requires a behavior plan throughout the day utilizing the ABA methodology. [The Student] also presents with fine and gross motor and visual motor as well as significantly delayed AOL skills. In general, she lacks safety awareness. [The Student's] social skills are delayed. Her attention span is poor, and she requires constant prompting and redirection to task.

The Student carried a classification Autism for the SYs in question.^[4] It is with this background that I now turn to the legal considerations of the IDEA.

e. Legal Overview

As a legal overview, it is useful to understand the legal framework of the Individuals with Disabilities Education Act ("IDEA").

A state receiving federal funds under the IDEA must provide disabled children with a free and appropriate public education ("FAPE"). Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). To ensure that qualifying children receive a FAPE, a school district must create an individualized education program ("IEP") for each such child. See 20 U.S.C. § 1414(d); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (describing the IEP as the "centerpiece" of the IDEA system). The IEP is "a written statement that sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." D.D. ex rel. V.D. v. N.Y.C. Bd. Of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006) (internal quotation marks omitted). The IDEA requires that an IEP be "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982). R.E. v. New York City Dep't of Educ., 694 F.3d 167 (2nd Cir. 2012).

In New York, the state has assigned responsibility for developing IEPs to local Committees on Special Education ("CSEs"). N.Y. Educ. Law § 4402(1)(b)(1); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 123 (2d Cir. 1998). CSEs are comprised of members appointed by the local school district's board of education, and must include the student's parent(s), a regular or special education teacher, a school board representative, a parent representative, and others. N.Y. Educ. Law § 4402(1)(b)(1)(a). The CSE must examine the student's level of achievement and specific needs and determine an appropriate educational program. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir. 2007). R.E., 694 F.3d 167 (2nd Cir. 2012). movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student's educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied. If a parent believes that his child's IEP does not comply with the IDEA, the parent may file a "due process complaint" (a type of administrative challenge unrelated to the concept of constitutional due process) with the appropriate state agency. 20 U.S.C. § 1415(b)(6). In such cases, the IDEA mandates that states provide "impartial due process hearings" before impartial hearing officers ("IHOs"). Id. § 1415(f). Under New York's administrative system, the parties first pursue their claim in a hearing before an IHO. N.Y. Educ. Law § 4404(1). Either party may then appeal the case to the state review officer ("SRO"), who may affirm or modify the IHO's order. Id. § 4404(2). Either party may then bring a civil action in state or federal court to review the SRO's decision. 20 U.S.C. § 1415(i)(2)(A). R.E., 694 F.3d 167 (2nd Cir. 2012).

III. Prong I

a. Did the District Present a Prima Facie Case?

i. Legal Standard

1. Procedural Standard

Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with "extensive procedural rights and safeguards" in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987).

In evaluating whether the District has complied with the procedural requirements of the IDEA, I in the decision-making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007.

2. Substantive Standard

IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must be able to ". . . offer a cogent and responsive explanation for their decisions . . ." Endrew F., Supra.

ii. Analysis

I first look to the Parents' allegations to determine the scrutiny to apply in evaluating the District's presentation. The complaint notice was explicit about the following issues:

The CSE did not create an IEP for the 2017-2018 school year. The parents maintain that the student was denied a FAPE for the 2017-2019 school year. (Ex. A-3). … …

The parents maintain that the CSE team was missing a parent member. The parent and teacher discussed with the team the student's severe academic, social and emotional/behavioral delays, self-injurious behaviors, severe speech and language delays, fine motor, gross motor, limited vision and sensory processing delays and how they impact upon her education. The parent and teacher who participated at the IEP meeting told the team that the student is in need of a highly structured 1:1 ABA program, a Behavior Intervention Plan and a sensory diet throughout the day at school. The CSE did not conduct an FBA- Functional Behavioral Assessment and did not create a BIP- Behavior Intervention Plan for the student. The CSE also did not conduct up to date assessments prior to the IEP meeting. The IEP does not contain ABA goals or methodology even though that was the methodology that has been successful at addressing the student's learning and social, emotional/behavioral needs. While the IEP includes one goal designated as a sensory goal, the goal is that the student will participate in class amidst distractions. This is totally insufficient and without a sensory diet throughout the day, the student will become dysregulated. Although the IEP includes some social /emotional goals, without ABA, FBA and a BIP they are insufficient to address the student's behaviors. Additionally, the academic goals are insufficient to address the student's severe reading and writing delays. The IEP also does not have sufficient safety goals for the student. Almost all the goals are copied from the student's 2015-2016 IEP with only slight modifications to the objectives. The goals and objectives lack benchmarks and methods of measurement.

The CSE recommended placement of the student in a 6:1:1 special class. The only options considered by the team was placement in a 12:1:1 special class.

The CSE did not consider a more individualized setting such as deferring the student's case to CBST for placement in a New York State Approved School where the student could have received ABA, a sensory diet in a small, highly structured and supportive setting. The parents expressed concern that the student would not be able to manage in school without 1:1 ABA support throughout the school day. Although the student has significant vision deficits, delayed AOL skills as well as social, emotional, behavioral issues and lack of safety awareness, the team did not mandate a 1:1 full time para for the student. The CSE team did not consider input from the parent and denied the parents meaningful participation in the creation of their daughter's IEP. (Ex. A-4).

This is the backdrop in which I weigh the District's presentation, ever mindful that the District has the burden of proof. In New York State, "[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …" N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where "[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief." Schaffer, 546 U.S. at 537.

The District conceded Prong I to the extent that they did not defend their recommended program or placement. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 111 2016 U.S. App. LEXIS 9239. There was no testimony indicating the nature of the CSE deliberations, or even if such deliberations occurred. Rather, I am left to speculate concerning the particulars of the review process, the rationale employed by the CSE members and the discussions that may or may not have contributed to a final recommendation. Further, given the myriad specific substantive allegations against the school, and the complete failure to defend, I find that the District fell short of their burden in this case.

iii. Conclusion

Upon review, I find that the District failed to demonstrate that they met their burden in providing the Student an IEP tailored to meet her individualized needs for each of the two school years at issue. I, therefore, rule for the Parents on Prong I.

IV. Prong II

a. Legal Issue: Did the Parents Establish the Appropriateness of the Private School?

i. Legal Standard

Having determined that the District failed to offer the student a FAPE for the 2017-2018 and 2018-2019 SYs, the next inquiry focuses on whether the parent's unilateral placement of the student at the Private School was appropriate. In doing so, I must consider whether the Parents met their burden of proving the appropriateness of the unilateral placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are "subject to fewer constraints than that applied to the school authorities." Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:

. . . [P]arents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006]

Moreover, parents "may not be subject to the same mainstreaming requirements as a school board."

Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").

ii. Analysis

I first look to the Private School's mission statement for a brief description of the program that was offered to the Student for the SYs at issue. I have included the relevant portions below:

[The Private School] offers students a multi-faceted approach to learning. We recognize the individuality of each child and provide them with a highly specialized curriculum, and one-to-one classroom instruction throughout the day. Our team of licensed special education teachers, speech and language therapists, occupational therapists, physical therapists, and counselors work within a consultative framework and are part of a collaborative model.

Therapists work along with the classroom staff to implement the therapeutic goals and exercises into each student's daily routine. [The Private School's] state of the art facility includes a sensory gym and a therapeutic pool. Students have access to the gym for therapy sessions, in addition to multiple opportunities set aside for sensory diets to help students maintain regulation continuously, throughout their school day. (Ex. F-1).

The mission statement notes that the Private School utilized Applied Behavior Analysis ("ABA") methodology and offers a sensory based program with a major focus on sensory integration and activities of daily living ("ADL") skills. (Ex. F-1). The sensory based program is described as follows: [The Sensory Program] at [the Private School] services students with multiple disabilities, including physical and cognitive delays. Our interdisciplinary team of special educators and related service providers work as a team, to incorporate multiple modalities, to help students learn and make meaningful progress.

Individual goals for students are targeted consistently, and reinforced as each component skill is taught. Life skills are taught throughout the school day, with the addition of pre-vocational skills, as appropriate. Student's sensory needs are addressed through sensory diets and use of our sensory gym. Our therapeutic pool helps students increase their range of motion and addresses gross and fine motor delays. In addition to our related services team, our consultative therapy model includes a technology specialist who conducts assessments for augmentative and alternative communication devices and assistive listening devices, as well as follow-up staff training. Communication with parents is ongoing, with the goal of increasing independence across school and home environments. (Ex. F-1).

The BCBA, who serves as the curriculum supervisor at the Private School, testified on the Parents' behalf. She described the Private School as a "small, ungraded special education program." (Ex. E-1). The Private School is a coeducational program, and serves students with various special education needs. (Ex. E-1). According to her testimony, "[the Private School] offers students highly specialized curriculum with one-to-one instruction tailored to each student's needs." (Ex. E-1).

The BCBA provided a glimpse of the Student's program at the Private School:

During the fall of the 18-19 SY, [the Private School] staff conducted the Assessment of Basic Language and Learning Skills ("ABLLS") with [the Student]. The ABLLS is an assessment, curriculum guide, and skill tracking system for children with delays. Based on [the Student's] ABLLS results, [the Private School] developed and updated tailored Goals and Objectives for [the Student] in the areas of math, reading, independence and activities of daily living, attention and focusing, and group learning. During the summer of 2018 and our fall assessment period, we worked with [the Student] on targets based on her performance on her Goals for the prior (17-18) SY and our end of the year assessment of her skills. For both the 2017-2018 and 2018-2019 school years, [the Student] was placed in a class of 6 students total (including herself). Each student was supported by a 1:1 paraprofessional instructor, overseen by the classroom teacher … [The Student] had two 1:1 paraprofessional instructors, who divided the day with her to aid in generalization of skills. [The Private School] staff are well trained in ABA. Before the start of each school year we hold a two-day training on providing ABA instruction, running programs, collecting ABC (Antecedent, Behavior, Consequence) data, and implementing behavior plans and sensory diets. We have ongoing staff training throughout the school year and teachers and paraprofessional instructors stay after school for at least forty-five minutes per day to review specific issues as needed. [The Student] required 1:1 ABA instruction throughout the day and the support of a 1:1 ABA paraprofessional instructor full time to keep her attending in class; provide instructional support including repetition, reinforcement, and prompting; provide 1:1 behavioral support; and address sensory issues. (Ex. E.2-3).

The BCBA noted that the Student's paraprofessionals taught her skills that she would not have otherwise been able to learn in a group setting. (Ex. E-3). The Student also received additional 1:1 support through a program offered by the Private School: [The Student] received 1:1 instruction on her Educational Goals during [the Program]. In that time, programs were run and specific skills were taught using Intensive Trial Teaching (also known as Discrete Trial Training). [The Student] received up to nine hours per week of 1:1 individual instruction using ABA methodology. These blocks of instruction were tailored to [the Student's] needs.

Instructors relied on fast paced teaching, reinforcement, and skills broken down into small, individualized steps to teach [the Student] fundamental skills and build upon and help her to generalize these targets. Even during 1:1 instruction, [the Student] could be distractible and required a lot of redirection to remain on task during learning. (Ex. E-3).

The BCBA stated that the Student "achieved important progress," and was able to master the following skills:

• Using discrete trial teaching [the Student] will identify the values of all coins with 90% accuracy

• [The Student] will be able to interchange coins to arrive at equal values with 90% accuracy

• Using LIP [the Student] will learn how to tell time to the exact minute on an analog clock

• [The Student] will develop an awareness of time and do given tasks at a given time using a visual schedule and natural environment teaching

• Using ABA Methodology [the Student] will add single digit numbers up to ten

• [The Student] will receptively identify and label examples of the word "more" 4/5 times using ABA methodology

• [The Student] will receptively identify and label examples of the word "less"

• [The Student] will read eve words written on paper or a white board within 4 seconds

• [The Student] will read every word written on paper or a white board within 4 seconds

• [The Student] will read level D books using a combination of whole language and phonics with 80% accuracy 90% fluency

• [The Student] will read level D books using a combination of whole language and phonics with 80% comprehension

• [The Student] will read level E books using a combination of whole language and phonics with 80%comprehension

• [The Student] will answer WH questions based on books read to her with 85% accuracy using social thinking cues

• When shown a picture of a scene, using social thinking cues, [the Student] will predict what happened before

• [The Student] will increase independence by following an activity schedule and completing two activities within 8 minutes

• [The Student] will make her own hair into a pony using backward chaining

• [The Student] will converse with adults and peers for up to five exchanges using visual cues from social thinking. (Ex. E-4).

The BCBA discussed some of the behaviors that hindered the Student's academic success. (Ex. E-4). To address these behaviors, the Private School conducted a Functional Behavior Assessment ("FBA") and then developed a Behavior Intervention Plan ("BIP"). (Ex. E-4). The BCBA worked with the Student on implementing her BIP. (Ex. E-5). The Private School continuously collected data on the Student's behaviors so that they could modify her BIP as needed. (Ex. E-5). According to her testimony, the BIP was "efficacious in reducing the frequency and duration of her interfering behaviors." (Ex. E-5).

Regarding the Student's related services, the BCBA stated that the Student received the following: [The Student] received Occupational Therapy ("OT") four times per week, for 30-minute sessions on a 1:1 basis; Physical Therapy ("PT") three times per week, for 30-minute sessions on a 1:1 basis; and Speech-Language Therapy ("Speech") five times per week, for 30 minute sessions on a 1:1 basis. All of [the Student's] therapists were licensed in their respective disciplines. During the summer and early fall, we were continuing to work on Goals that [the Student] had not achieved by the end of the 17-18 SY, and working on generalizing skills that she had acquired to novel instructors and settings. Following assessment, we developed updated related services goals for [the Student] for the 18-19 SY. (Ex. E-5).

The BCBA noted that the Student improved in all areas. (Ex. E-5). Additionally, she expressed support for the Private School, asserting that it was an appropriate placement for the Student:

It is my opinion that [the Student] provided an appropriate educational program and placement for Faige for the 17-18 and 18-19 school years. Faige received instruction developed specifically for her, delivered on a largely I: I basis following ABA (which she needed). Her behavioral and sensory supports were individualized for her needs. Our school offered a well-stocked sensory gym, and related services both on a 1:1 and group basis.

In addition, [the Private School] had the 1:1 intervention, oversight, support, and instruction to keep [the Student] safe and to meet her behavioral and physical needs. We were able to support her educational, physical, and sensory needs.

We also adapted instructional materials for [the Student]. (Ex. E-6).

This concludes the BCBA's testimony.

iii. Conclusion

In addition to considering the testimony and observations of the BCBA, I am mindful of the unique and complicated profile of the Student as outlined above in the "Student History" and is amplified throughout the record. To conclude, I agree with the statement of the BCBA that the Private School offers an appropriate educational program for the Student.

Thus, I find that the Private School provided educational instruction specially designed to meet the unique needs of the Student. I credit the Parents' exhibits and witnesses for articulating the appropriateness of the placement in addition to the Student's progress. The Parents have met their burden by establishing that such services were necessary to permit the Student to benefit from instruction. I, therefore, rule for the Parents for Prong II.

V. Prong III

a. Legal Issue: Did the Parents Cooperate with the District?

i. Legal Standard

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents where equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192).

"Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148 5). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).

5 § 300.148 Placement of children by parents when FAPE is at issue.

(a) General. This part does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency must include that child in the population whose needs are addressed consistent with §§ 300.131 through 300.144.

(b) Disagreements about FAPE. Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in §§ 300.504 through 300.520.

(c) Reimbursement for private school placement. If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs.

(d) Limitation on reimbursement. The cost of reimbursement described in paragraph (c) of this section may be reduced or denied (1) If - (i) At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or (ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section;

(2) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in § 300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or (3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents.

(e) Exception. Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement - (1) Must not be reduced or denied for failure to provide the notice if - (i) The school prevented the parents from providing the notice; (ii) The parents had not received notice, pursuant to § 300.504, of the notice requirement in paragraph (d)(1) of this section; or (iii) Compliance with paragraph (d)(1) of this section would likely result in physical harm to the child; and

(2) May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if -

(i) The parents are not literate or cannot write in English; or (ii) Compliance with paragraph (d)(1) of this section would likely result in serious emotional harm to the child. (Approved by the Office of Management and Budget under control number 1820-0030) (Authority: 20 U.S.C. 1412(a)(10)(C)) Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (20 U.S.C. § 612[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d]) 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])

ii. Analysis

For both SYs, the Parents sent ten-day notice letters, expressing their intent to unilaterally place the Student at the Private School for both the 2017-2018 and 2018-2019 SYs. In the letters, the Parents informed the District that they would seek funding from the District for the placement. (Ex.s B & C).

iii. Conclusion

Upon review of the record, I find that the Parents cooperated with the District and did nothing to impede them from developing an appropriate IEP for the Student. As such, I find no reason for reduction in tuition reimbursement. I, therefore, rule for the Parents in Prong III.

It is therefore ORDERED

For the District to reimburse/directly pay the Parents/Private School for cost of tuition, related services, and transportation to and from the Private School, where they unilaterally placed the Student for the 2017-2018 and 2018-2019 SYs.

Dated: September 18, 2023

NOTICE OF RIGHT TO APPEAL

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

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

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

Footnotes

[1] A hearing was held across the following dates: October 5, 2021; November 5, 2021; December 9, 2021; March 4, 2022; May 3, 2022; July 19, 2022; September 30, 2022; November 2, 2022; December 22, 2022; February 9, 2023; April 24, 2023; May 8, 2023; July 5, 2023; July 21, 2023; and August 24, 2023.

[2] The CSE recommended that the Student be placed in a 6:1+1 district specialized class and receive the following related services: Occupational Therapy (4x30, 1:1); Physical Therapy (3x30, 1:1); Speech and Language Therapy (5x30, 1:1); Vision Education Services (1x30, 1:1); and Parent Counseling (4x60, yearly). Additionally, the CSE recommended the Student receive extended school year ("ESY") services and special transportation accommodations. (Ex. A-2).

[3] The CSE recommended the Student be placed in a 6:1:1 special class. The Parents subsequently received a placement at a District public school; however, the Parents were unsuccessful in arranging a visit. (Ex. A-4).

[4] 8 NYCRR Part 200.1(zz)(1) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student's educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped consider whether the alleged procedural violation either 1) impeded the Student's right to a free and appropriate public education, 2) significantly impeded the Parent's opportunity to participate The CSE held an IEP meeting for the student on 2/15/18 to develop an IEP for the student for the 2018-2019 school year. The parents maintain that the IEP that was created is procedurally and substantively flawed and results in a denial of a FAPE to the student for the 2018-2019 school year. (Ex. A-3).