Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 194067

Student’s Name: [Redacted]

District: [Redacted]

Hearing Requested By: Parents

Hearing Officer: Martin J. Kehoe III, Esq.

Actual Record Close Date: May 8, 2026

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 primarily involves a demand for tuition reimbursement for the 2018-2019 and 2019-2020 school years (“SYs”). The Parents filed the complaint notice on May 27, 2020. (Ex. A). I was appointed as the IHO on October 21, 2020. A hearing was held across multiple dates.^[1] The Parents introduced exhibits A-T into the record and called two (2) witnesses: the Master Teacher at the Private School (“Master Teacher”) and the Parent. The District filed a Motion to Dismiss (“MTD”), dated April 4, 2023 (Ex. IHO #1). The District offered exhibits 1-14, 2 and called one (1) witness—the Teacher-Assigned Aide for the CSE (“Teacher-Assigned Aide”). Additionally, the District submitted a closing brief (Ex. IHO #2) in furtherance of its position.

a. Parents’ Position The Parents allege that the District failed to provide the Student a Free Appropriate Public Education (“FAPE”) for the 2018-2019 and 2019-2020 SYs. (Ex. A-1). This stems from their assertion that the Student’s Individualized Education Program (“IEP”) is procedurally and substantively flawed. (Ex. A-2). The Parents provided notice to the District and unilaterally enrolled their son at the Private School and seek reimbursement for tuition and related services for the two (2) school years at issue. (Ex. A.3-4). Additionally, the Parents seek reimbursement for transportation costs incurred during the 2019-2020 SY. (Ex. A-4).

b. District’s Position In its closing brief, the District maintains that the Parents are not entitled to tuition funding, as the Student’s IEP was tailored to meet his educational needs. (Ex. IHO #2-1). The District asserts that the Parents failed in meeting their burden in establishing that the Private School is an appropriate unilateral placement under the IDEA. (Ex. IHO #2-1). The District points out that the equities are in its favor, not the Parents. (Ex. IHO #2-1).

c. The District’s Motion to Dismiss The District’s MTD seeks to quiet the Parents’ claims regarding the 2018-2019 SY, in that the requested relief is time barred by the two-year statute of limitations under the IDEA. (Ex. IHO #1-

2 Note that Ex. 1 is an IEP dated January 31, 2018. However, no meeting was held on that date, but there was a meeting held on April 17, 2018. Thus, this discrepancy appears to be a scrivener’s error. (T. 135). 2). While the District is correct in asserting that the “knew or should have known” date is May 10, 2018—the day the Parents received the Prior Written Notice (“PWN”)—the District erred in calculating the tolling date.

On March 20, 2020, Governor Andrew Cuomo issued Executive Order 202.8, tolling New York’s statute of limitations and other procedural deadlines.^[3] The order temporarily suspended the statute of limitations from tolling. Here, two (2) years from the “knew or should have known date” would be May 10, 2020. The Parents filed the complaint notice on May 27, 2020. While normally this would fall outside the tolling provisions, Executive Order 202.8 extended the tolling date. Thus, the Parents filed the complaint within the time limitations. As such, I hereby deny the District’s

MTD.

c. Background

of the Case 2018-2019 SY A Committee on Special Education (“CSE”) meeting was held on April 17, 2018, to develop an IEP for the Student.^[4] (Ex. 1). Following the meeting, on May 7, 2018, the District sent the Parents a PWN and a School Location Letter (“SLL”), informing them of the CSE’s recommended program and placement. (Ex.s 13 & 14). On September 17, 2018, the Parents responded with a notice letter of unilateral placement in which they rejected the CSE’s recommendations. (Ex. C).

2019-2020 SY On May 19, 2019, the CSE reconvened to develop an updated IEP for the Student, in preparation for the upcoming school year.^[5] (Ex. 8). On July 10, 2019, the District sent the Parents a PWN and SLL, advising them of the updates to the Student’s program. (Ex.s 10 & 11). The Parents responded on September 23, 2019, with another notice letter of unilateral placement. (Ex. D). In the letter, the Parents again rejected the CSE’s recommendations, and advised the District of their unilateral placement of the Student at the Private School. (Ex. D.2-3).

d. Student History The Student was [REDACTED] years old at the start of the 2018-2019 SY. For both the 2018-2019 and 2019-2020 IEPs, the Student carried a disability classification of Autism.^[6] Prior to the August 22, 2016. (Ex. 4). The evaluation noted the Student possessed a history of developmental problems and had been diagnosed as having Persuasive Developmental Disorder (“NOS”) from when he was two (2) years old. (Ex. 4-1). The evaluation included parental intake, in which the Parent described her child as follows: [The Student’s] mother notes that he tends to "obsess" over trucks and construction tools. She notes that he likes patterns and things to be ordered. He enjoys playing at building activities, but he can be imaginative and creative in his building and in his play with trucks and the like. She notes that he becomes anxious in certain situations. He has had two "best friends" in school. He seems to interact well with boys, but seems to miss social cues, and he can be "annoying" with children who are older. [The Student] tends to "tune out" what is difficult and for things that he does not like) and can be quite head-strong. [The Student] can also be quite active and impulsive. (Ex. 4-1).

At the time, the Student was receiving Board-Certified Behavior Analyst (“BCBA”) therapy to address his Autistic Spectrum Disorder (F84.0) diagnosis. (Ex. 4-2). The evaluator summarized his findings and recommendations: [The Student’s] behavior and development are entirely consistent with Asperger’s

Disorder, and he does meet the current diagnostic criteria for Level I Autistic Spectrum Disorder. He does need a highly-structured, yet adaptive and very small classroom and school situation in order to meet his needs. In addition, it is felt that the designation of Multiple Disabilities is not appropriate, and he, in fact, should be classified under the Autism designation. Nevertheless, he does need a special education setting and the services for which he has been given approval.

It is particularly important for the speech and language services to be performed both individually and in a small group, the latter in order to work on pragmatic communication skills, the former to address structure and formulation issues, as well as higher order conceptual development. Occupational therapy is appropriate performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped 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. to address fine motor and adaptive skills, including functional skills relevant for personal care and management of classroom activities. The program needs to take into account [the Student’s] rigidity and difficulty with transitions, and this should be built into any behavioral program that is developed for [the Student], so as to avoid frustration on his part.

While [the Student] does not need a program that emphasizes ABA, he would continue to benefit from BCBA services provided at home, not necessarily to work on discrete trials, but to work with, hopefully both parents, in terms of providing consistency and structure in the manner in which [the Student] is managed, and how to use positive means, social reinforcement, and privilege rather than token reward, and, of course, how to adapt expectations and demands so as to help [the Student] with compliance and transition, while acknowledging his obsessive needs. (Ex. 4-5). It is with this background that I now turn to the legal considerations of the IDEA.

e. Legal Overview Here is an overview of 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).

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). See, 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. 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 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 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. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386 (2017).

ii. Analysis

I first look to the Parents’ allegations to determine the scrutiny to apply in evaluating the District’s presentation. Regarding the 2018-2019 SY, the complaint notice is explicit about the following

issues:

Unbeknownst to the parents at the time of the IEP meeting, the CSE did not add parent training to the student's IEP even though the IEP includes a goal for parent training. The CSE did not conduct any updated evaluations of the student. The most recent observation used by the CSE was from 2016. A social history was also utilized from 2016. The parents and student's teacher from [the Private School] participated in the meeting. They told the team that [the Student] was doing well at [the Private School] in a small class with a 1:1 para, related services, counseling and a behavior intervention plan. [The Student] has tremendous difficulty with attention and focus and requires constant redirection. He engaged in self-stimulatory behaviors, and his self-help skills and social/pragmatic language skills were poor. The CSE offered the student placement in a 12:1:1 special class in a community school. The parents were concerned about the size of the class as being too large. After discussing their concerns, they agreed to visit at the recommended placement to consider whether it would be appropriate for [the Student]. The CSE removed [the Student’s] 1:1 para. This was not discussed of this with the parents and the student's teacher at the IEP meeting. The parents maintain that [the Student] requires a 1:1 para due to behaviors stemming from his diagnosis of autism. The CSE added counseling 1x30, 1:1 and 1x30 in a group.

The CSE did not conduct an FBA and failed to create a Behavior Intervention

Plan-BIP for the student. At the time, [the Student] had a BIP at [the Private School] created by his counselor and BCBA which addressed his behavior throughout the school day. The IEP does not have sufficient goals to address the student's behavior, social and attention and focusing issues. The social/emotional/ behavioral goals on the IEP are overly vague and insufficient to address the student's needs. The CSE also inexplicably changed the student's occupational therapy mandate from 3x30,1:1 to 2x30 in a group. This was done without consulting the student's occupational therapist and was not discussed with the parents or the school at the IEP meeting. [the Private School’s] sensory delays, fine motor, graphomotor and ADL delays as well as his distractibility and need for individualized services, it would not be appropriate to reduce and group his occupational therapy services. While the CSE added counseling to [the Student’s]

IEP, the counseling goal is not sufficient and not appropriate to address his social, emotional and behavioral needs.

The parents subsequently received a school location letter recommending placement at [REDACTED]. The parents attempted to contact the school but were not given an appointment to see the recommended class till after school began in September. The parents visited the public school on September 14, 2018. The school had just one 12:1:1 class for [the Student’s] age. The class was a bridge class with students Kindergarten age through the second grade. The parents observed students moving freely around the classroom with little structure. There were several bilingual students in the class who had alternate placement paras for Spanish and Russian languages. The parents maintain that the classroom was small and there were many distractions especially with three languages being spoken in class simultaneously. This would be extremely distracting for [the Student] and it would be impossible for him to safely attend a classroom like that without a 1:1 full time para. The parent did not see appropriate peer models for [the Student] in the class. The parent asked the school about a BIP for [the Student] and was told that it needs to be on his IEP otherwise he will not receive an individual BIP. In general, the parent, who is a licensed special education teacher, found that the academics taught in the recommended class were at the Kindergarten through beginning 1ˢᵗ grade level and that [the Student] had mastered these skills. (Ex. A.2-3).

As for the 2019-2020 SY, the Parents raise the following concerns in the complaint notice:

The CSE convened an IEP on 5/16/19. The parents maintain that the IEP was procedurally and substantively flawed and resulted in a denial of a FAPE for the 2019- 2020 school year. The team continued to classify the student with autism and added parent counseling and training to the student's IEP. The parents brought up the issue of the student's occupational therapy needing to be individual and the CSE agreed to change the student's mandate back to individual occupational therapy sessions. The CSE team refused to restore the student's 1:1 para to his IEP. The CSE did not observe the student prior to the IEP meeting. The CSE team did not conduct an FBA- Functional Behavioral Assessment and did not create a BIP- Behavior Intervention Plan for the student for the 2019-2020 school year, Furthermore, the behavioral, social and emotional goals on the IEP are overly vague and lack bench marks and methods of measurement and are not sufficient to address the student's social. Emotional and behavioral needs.

The parents subsequently received a school location letter offering the student placement again in a 12:1:1 special class at [REDACTED]. The parents contacted the school and made an appointment to visit the recommended class. The parents maintain that the class is not appropriate for [the Student] and that he would not receive a BIP and a 1:1 para unless it was mandated on his IEP. (Ex. A-4). This is the backdrop in which I weigh the District’s recommendations, 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 the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief. Schaffer v. Weast, 546 U.S. 49, 58 (2005).

With respect to the 2018-2019 SY, the District did not offer a rationale for the CSE’s recommendations, as they sought to dismiss the Parents’ claims on the basis that the claims were barred by the statute of limitations. Here, the District failed to present witnesses. This coupled with the Parent’s presentation, I find that the District failed to meet its burden in showing that it provided the Student an individualized program, tailored to the Student’s individual needs.

In developing a student’s IEP, the CSE must consider the most recent evaluative date of the student. 20 U.S.C. § 1414(c)(1)(A); 34 C.F.R. § 300.324(a)(1)(iii). Thus, the burden lies on the district to demonstrate which evaluative materials were reviewed during each CSE meeting in reaching the terms of the IEPs. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 110 (2d Cir. 2016). In L.O., the plaintiff alleged that the district committed multiple procedural errors in formulating each of the student’s IEPs, independently and cumulatively resulting in the denial of a FAPE for each school year. Id. at 110. The SRO and the District Court found that the district failed to meet its burden, in that it failed to demonstrate how the CSE determined the student’s program, leaving the court to speculate. Id. at 110. While the lower courts were correct in only looking to the evaluative materials in existence at the time of the CSE meetings, the Second Circuit points out that the courts ignored the plain language of the statute, which requires the court to consider whether the CSE actually reviewed such data. Id. at 110-111.

The court also voiced its disagreement with the district’s reliance on R.B. v. New York City Dept. of Educ., 589 F. App’x 572, 575 (2d Cir. 2014) (holding that a parent is precluded from contesting the absence of evaluative material during the CSE meetings because she could have raised the matter at the meeting). The court concludes that even if the parent could have objected the absence of evaluative materials or the CSE’s failure to consider said materials in formulating the student’s IEP, the district is not absolved of upholding its responsibilities imposed on it by Congress. L.O., 822 F.3d 95, 110, 111 (2d Cir. 2016).

As the court held in L.O., I am left to speculate the CSE’s rationale for its decisions in creating the Student’s IEP. Thus, I find that the District failed to meet its burden in demonstrating that it provided the Student with a FAPE during the 2018-2019 SY.

Regarding the 2019-2020 SY, the District did however call a witness—the Teacher AssignedAide—to defend the CSE’s recommendations for the 2019-2020 SY. She testified that the CSE relied upon the Private School for data on the Student, nothing that the Private School was “always good at giving [the District] progress reports.” (T. 165). The Teacher-Assigned Aide also provided some insight regarding the CSE’s recommended accommodations, explaining that the Student needed extra time on tests. (T. 166). She also explained why adaptive physical education was recommended for the Student. (T. 167). The Teacher-Assigned Aide was asked to review the Parents’ concerns and explain the ways in which the CSE aimed to address those concerns: Okay. He had difficulty focusing. (Indiscernible) potential math as a strength.

Okay. So the father stated that he did have difficulty focusing, which OT would be working on, as well as the counseling. And the speech could also be working on. Overall, the father felt that he did have a lot of potential. However, he was below grade level. Teacher also had concerns. So that's why we placed him in a smaller type of a setting.

Even though math is a strength for him, he was still below grade level. So we felt especially coming out of a small school -- he was in [the Private School], which was a small school -- we did not want to put him in a larger type of an environment. It would have been too overwhelming, especially the first year, for him. So we felt that putting him in a small classroom would be an easy transition for him. (T. 168-169).

When asked if she thought the CSE’s recommendation was appropriate in addressing the Student’s needs for the 2019-2020 SY, the Teacher-Assigned-Aide responded: Based upon the data that was presented along with the parent and teacher concerns, we felt that that would have been the proper -- I mean, he did score average on a lot of areas. However, we wanted to make the transition easier for him. So at that time, we thought that that was an appropriate setting for him. (T.

169-170).

She further explained: [H]e was coming out of a small class. He did -- there was some social concerns.

Socially, he was -- the father felt that he was delayed socially. So looking at the child as a whole, we wanted to help him in all aspects, not only academic, but also socially for him. So we just felt that putting him in a general education classroom or an ICT would have been, number one, too overwhelming for him. And number two, it would have been -- going from a small classroom to a large type of setting would have been too much for him academically. We were afraid of regression.

So we felt that easing him into a small classroom would have been a good transition for him. (T. 170).

Throughout her testimony, the Teacher-Assigned Aide emphasized that the community school setting would benefit the Student both inside and outside of the classroom. Notwithstanding the ardent advocacy by the Teacher-Assigned Aide, the District failed to address numerous parental allegations. For example, The CSE team refused to restore the student's 1:1 para to his IEP; There was no formal observation prior to the IEP meeting. Moreover the is no explanation for the lack of an FBA- Functional Behavioral Assessment or a BIP- Behavior Intervention Plan for the student for the 2019-2020 school year. Likewise, the behavioral, social and emotional goals on the IEP are overly vague and lack bench marks and methods of measurement such that they are not sufficient to address the student's social. emotional and behavioral needs.

iii. Conclusion

While I credit the District’s witness for providing testimony regarding the CSE’s rationale behind their recommendations for the 2019-2020 SY, I find that the District fell short of its burden in demonstrating that it provided the Student a FAPE for the 2018-2019 and 2019-2020 SYs. 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 2018-2019 and 2019-2020 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

The Master Teacher testified on the Parents’ behalf to help demonstrate the appropriateness of their unilateral placement of the Student at the Private School. She begun by briefly describing the classes at the Private School:

At [the Private School], we provide our students specialized education in small, self-contained classrooms within a warm and nurturing setting, so that they can achieve progress commensurate with their potential. The class size at [the Private School] ranges from 6-10 students. Each classroom has a Special Education teacher and an assistant teacher. Additional teachers may be added at times, such as during core subjects like reading and math. (Ex. T.1-2). She noted that the Private School provides related services, including speech-language therapy, occupational therapy, physical therapy, and counseling services. (Ex. T-2). The Private School employs a psychologist and two (2) reading specialists for additional support. (Ex. T-2). There is regular communication between teachers and parents. (Ex. T-2).

The Master Teacher is familiar with the Student—she was his head Special Education teacher for the 2018-2019 and 2019-2020 SYs. (Ex. T-2). For both years, the Student was placed into a class of eight (8) students of similar needs, with one (1) teacher and one (1) assistant teacher. (Ex. T.2-3). The Student’s classes were broken into smaller groups, composed of students with similar needs. (Ex. T-3). In developing the Student’s program, the Master Teacher reviewed records and spoke with his prior teacher. (Ex. T-3). To address the Student’s special education needs (i.e., academic delays, language delays, fine motor delays, and attentional difficulties) the Private School provided him with a small class with individualized attention—specifically for reading. (Ex. T-3). The Master Teacher testified that: [The Student’s] schedule and curriculum were tailored to his needs. Throughout the entire day, we addressed [his] needs and implemented effective teaching strategies across all settings. Specifically, [he] was provided with frequent reminders, prompting, and 1:1 teacher check-ins to help him focus and stay on task. The small class size was critical to ensuring he could get this level of support. (Ex. T-4).

The Master Teacher noted that the Student made progress throughout the 2018-2019 SY with respect to his reading and writing skills. (Ex. T.4-5). She also stated the Student made improvements in math. (Ex. T-5). In terms of related services, the Student made progress in occupational therapy, speech therapy, physical therapy, and counseling. (Ex. T.5-7).

For the 2019-2020 SY, the Student continued to make improvements in all areas listed above. (Ex. T.7-9). The Master Teacher noted that the Student required behavioral intervention to address his impulsivity and classroom emotional needs. (Ex. T-9).

He needed immediate and specific feedback in order to conduct himself in an appropriate manner in the classroom. He responded well to praise and positive reinforcement. He worked well with the class system where he earned points and tokens towards rewards. In addition, the school incorporated a school wide behavior intervention program where all students are rated multiple times daily on three target behaviors (compliance, completion of work, and courteous speech). These systems were instrumental in improving [the Student’s] classroom behavior and decreased his impulsivity and defiance. (Ex. T-9).

The Master Teacher stated that the Student’s progress was constantly measured via progress reports and team meetings—which included providers and teachers. (Ex. T-10). She concluded her testimony, stating that the Private School was an appropriate setting for the Student, pointing to the small school setting, which she asserted to be “critical” to his progress. (Ex. T-10). The Student’s father attested to this as well, stating that his son could have “absolutely not” functioned in the absence of a behavioral intervention plan. (T. 227-228). The Master Teacher provided the following testimony regarding the Student’s success at the Private School: [The Private School’s] program provided learning in small groups for math and reading, and a curriculum attuned to [the Student’s] individual needs. As a result, [the Student] made progress in all academic and related service areas. [The Student] would not be appropriately placed in a larger class or in a class with less adult support. He needed the small group and extensive one-to-one support provided by a smaller class and ratio in order to make progress. (Ex. T-10).

This concludes the Master Teacher’s testimony regarding the appropriateness of the Private School. (Ex. T-10).

iii. Conclusion

In addition to considering the testimony and observations of the Master Teacher, 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 Master Teacher regarding the Student’s progress at the Private School.

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 7). The burden of proof 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])

(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))

ii. Analysis

The Parents sent the District a ten-day notice letter for both the 2018-2019 and 2019-2020 SYs, and in each letter, the Parents expressed their intent to unilaterally place the Student at the Private School and seek funding. Regarding the 2018-2019 SY the parents attempted to contact the school but were not given an appointment to see the recommended class till after school began in September. The parents visited the public school on September 14, 2018.

As for the 2019-2020 SY the ten-day notice was timely and the District failed to respond. I also note, the Parents attended the Student’s CSE meetings and communicated with the District throughout the process.

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 and related services for both the 2018-2019 and 2019-2020 SYs.

Additionally, the District shall reimburse/directly pay the Parents/Private School for transportation costs associated with the 2019-2020 SY upon presentation of invoicing for same.

Dated: December 20, 2023

Martin J. Kehoe, Esq.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

Footnotes

[1] A hearing was held across the following dates: November 15, 2021; December 23, 2021; February 7, 2022; April 6, 2022; May 24, 2022; June 13, 2022; September 14, 2022; November 9, 2022; January 5, 2023; March 20, 2023; May 17, 2023; May 23, 2023; July 17, 2023; August 1, 2023; September 15, 2023; September 27, 2023; October 2, 2023; and October 3, 2023.

[3] . . . [A]ny specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statue, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020. Id. Thereafter, the governor repeatedly extended the civil tolling in Executive Order (EO) 202.8 by issuing various Eos, including most recently, EO 202.67 dated October 4, 2020. EO 202.67 extended the civil tolling provisions to Nov. 3, 2020, and stated that thereafter, this tolling would expire: The suspension in Executive Order 202.8, as modified and extended in subsequent Executive Orders, . . . is hereby continued, . . . provided however, for any civil case, such suspension is only effective until November 3, 2020, and after such date any such time limit will no longer be tolled[.] The Second Department further examined the ramifications of Executive Order No. 202.8, stating “Governor Cuomo's March 20, 2020 executive order, Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8), expressly and plainly provided that the subject time limits were ‘hereby tolled,’ and two of the subsequent executive orders referred to the temporary alternation of the subject time limits as a ‘toll[ ]’” Brash v. Richards, 149 N.Y.S. 3d 560, 563 (2nd Dept. 2021)

[4] The CSE team recommended the Student be placed in a 12:1+1 special education class with the following related services: Counseling Services (Individual, 1x30; Group of 3, 1x30); Occupational Therapy (Group of 3, 2x30); Physical Therapy (Individual, 1x30); and Speech-Language Therapy (Individual, 3x30). (Ex. 1-17).

[5] The CSE team recommended the Student be placed in a 12:1+1 special education class (specifically for ELA, Math, Social Studies, and Sciences) with the following related services: Counseling Services (Individual, 1x30; Group, 1x30); Occupational Therapy (Individual, 2x30); Parent Counseling and Training (1x60 for 5 weeks); Physical Therapy (Individual, 2x30); and Speech-Language Therapy (Individual, 3x30). (Ex. 8.28-29).

[6] 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 two (2) CSE meetings in question, the Student underwent a neuropsychological evaluation, dated §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y.

[7] § 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 - 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]).