New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 545365 - NYC: 201949

FINDINGS OF FACT & DECISION

Case No. City/State: 201949

Student’s Name: REDACTED

(Hereinafter referred to as “Student”)

Date of Birth: REDACTED

District: REDACTED

Hearing Request by: Parent

School: REDACTED

(Hereinafter referred to “Academy”)

Actual Record Close: March 22, 2022

Hearing Officer: ANN MARQUEZ, ESQ.

Date of Decision: March 31, 2022

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

REDACTED, ESQ., Parent Representative

REDACTED, Parent

REDACTED, ESQ., Parent Representative

REDACTED, Program Director, REDACTED

REDACTED, Special Education Teacher

For the Department of Education: REDACTED, ESQ., District Representative

REDACTED, ESQ., District Representative

REDACTED a minor, by and through the Parent

DECISION AND ORDER

Petitioner

-against-

NEW YORK CITY DEPARTMENT OF EDUCATION

Respondent.

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on September 25, 2020 (Ex. A)^[1]. The DPC alleged that the DOE failed provide the Student with a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by not providing the Student with a reasonably calculated IEP for the Student’s services for the 2020-2021 school year. The Parent is seeking an order for reimbursement for tuition, and transportation for the school year at issue. (Ex. A).

On October 1, 2021, the undersigned Hearing Officer was appointed to the above referenced matter. Hearings went forward in this case on multiple dates (See, Tr.).^[2]

The Parent representative presented opening statements, proffered witnesses, documentary evidence, and a closing brief. The District presented only a closing brief.

Lists of the documentary evidence submitted are appended to this Order.

BACKGROUND

The Student is classified as a student with a learning disability. His classification and eligibility for special education supports and services are not in dispute. He is classified as a student with Autism, with various difficulties that includes sensory regulation, motor planning, fine and gross motor coordination, visual spatial processing, body awareness, social communication, academics, and activities of daily living. (Ex. A). The Parents unilaterally placed the Student at the Academy for the 2020-2021 school year. The Parents maintain that the Student was not provided with a FAPE for the 2020-2021 school year, and now seek an order for tuition reimbursement at the Academy and transportation for such school year. Id.

The DOE conceded that the Student was denied a FAPE for the school year at issue, and would not be presenting a Prong 1 case in this matter. (Tr. 31:5-9).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The IDEA is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded free appropriate public education (“FAPE”). See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982).

Under the FAPE analysis, the public school and/or Local Education Agency (“LEA”) has the burden of persuasion and the burden of production to demonstrate that the disabled child was provided a FAPE as set forth in the IDEA.

The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).

Here, the District representative stated that he would not be presenting a Prong 1 case in this matter. (Tr. 31:5-9, IHO I).

Based upon the foregoing, the District failed to demonstrate that the school district offered the Student a FAPE for the 2020-2021 school year. Therefore, the Student was denied a FAPE for the 2020-2021 school year, which is the first prong of the three Burlington/Carter criteria for public funding tuition related to unilateral placement.

THE UNILATERAL PLACEMENT OF THE CHILD IN THE PRIVATE SCHOOL WAS APPROPRIATE -TUITION REIMBURSEMENT

The IDEA specifically contemplates that "when a public school, Local Education Agency (“LEA”) fails to provide a FAPE and a child's Parent place the child in an appropriate private school without the school district's consent, a court may require the district to reimburse the Parent for the cost of the private education." Forest Grove, 129 S. Ct. at 2488; see 20 U.S.C. § 1412(a)(10)(C).

When a state receiving federal funding for special education fails to give a disabled child a FAPE under the IDEA, the child's Parent or guardians may unilaterally place the child in an appropriate private school and seek tuition reimbursement from the state. See Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12 (1993) ("Carter"); Sch. Comm. of Burlington, Mass. v. Dept. of Educ., 471 U.S. 359, 369-70 (1985) ("Burlington").

Under the Burlington-Carter test for tuition reimbursement, plaintiffs are entitled to reimbursement of private school tuition if (1) the IEP was not "reasonably calculated to enable the child to receive educational benefits," (2) "the private schooling obtained by the Parent is appropriate to the child's needs," and (3) equitable considerations support the plaintiffs' claim. T.Y., 584 F.3d at 417 (citation omitted);see also Forest Grove, 129 S. Ct. at 2496 ("Parent are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA and the private school placement was proper under the Act. And even then, courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant...." (citation omitted)).

Under New York law, the burden of persuasion falls upon the Parent to show that their unilateral placement at a private school was appropriate.^[3] The Second Circuit cautioned that under a unilateral private placement a parent need only demonstrate that the placement provides educational instruction specifically 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. ^[4]

The standards for determining whether a private school placement is "appropriate" under the IDEA closely resemble, but does not mirror, the standards for assessing the adequacy and appropriateness provided by the State education for proposed public placement. ^[5] "[T]he test for the Parent ' private placement is that it is appropriate, and not that it is perfect." Gagliardo, 489 F.3d at 115 (citation omitted). Ultimately, the standard to be applied is to determine whether "[the] unilateral private placement... provides education instruction specifically designed to meet the unique needs of a handicapped child." Id. [10]

Here, the record amply demonstrates that the Student’s placement at the Academy was appropriate (Ex. B, F, G, H, I, J, K, L, M).

The Parent proffered witness’ with credible testimony by affidavit, and were subject to cross examination. The Parent testified that the Student is a 15-year-old, and was diagnosed with Autism since he was 3 years old. The DOE classified the Student with Autism and mandated that he receive 12-months services. (Ex. L).

The Student has extreme challenges related to sensory regulation and frequently becomes dysregulated. Id. The Parent further testified that when the Student becomes dysregulated, it is hard from him to communicate. The Parent further described instances of some triggers when the Student becomes dysregulated, such as when he feels jealousy, embarrassed, not enough attention, or a change in his routine. Id. When dysregulated, the Student shuts down and will not use his words. He reduces eye contact and tends to disengage by turning away from individuals or walk away. Further, when he is dysregulated, he will rock back and forth, flaps his arms, and seeks oral sensory input such as crumpling paper and putting it in his mouth. Id.

The Academy is a private special education school for students with neurodevelopmental delays in relating and communicating. This includes children with autism spectrum diagnoses, as well as children without autism spectrum diagnoses who have a core deficit in relating and communicating. The Academy utilizes a developmental model called DIRFloortime®, which stands for Developmental, Individual Difference, Relationship-Based. Further, the Academy is a small school with 153 students and 18 classrooms, a typical classroom has only eight students, one head teacher, and three assistant teachers. (Ex. M).

Further, approximately 85 percent of the students have an autism spectrum diagnosis. The remaining 15 percent of students have difficulties with relating and communicating, sensory processing, and fine and gross motor skills. The Academy has two sensory gyms, which include spaces equipped with mats on the walls and floor, hooks for suspended equipment, balancing, etc. Further, there is a sensory comer in each classroom. The Academy provides related services such as occupational therapy, speech and language therapy, physical therapy, and counseling by either a psychologist, social worker, or a music therapist. The Academy utilizes small classes and specialized teaching methodologies to teach students with learning disabilities and attention needs. (Ex. M). The school utilizes Orton-Gillingham based methods and curriculum to teach its students. Id. The Academy groups students in reading and math based on their reading skills. (Tr.443-444).

Ms. REDACTED provided credible testimony by affidavit and subject to cross examination as well. (Ex. M). For the 2020-2021 school year, the Student participated in the Transition program at the Academy. The Transitions Program is designed to promote student autonomy through ongoing academic and social activities that will prepare the Student for his long-term goals and community life.

Further, the record demonstrates that the Student’s individualized weekly program at the Academy during the school year at issue consisted of DIRFloortime® sessions, daily literacy, and math periods as well as social studies, health, visual spatial activities, sensorimotor activities, and community integration. The Academy provided the Student with all of his related services including speech language therapy, occupational therapy, counseling, art, and music. Further, the Student was provided with specialized sensory supports to address the Student’s unique sensory challenges, academic challenges, and life skill instruction to help him become more independent. (Ex. L, M)

Overall, the record demonstrates Student made progress at the Academy during the school year at issue. (Ex. J and K).

The DOE did not present any evidence to challenge the Parents’ contention that the Academy placement is an appropriate program and placement for the Student. Overall, the record amply establishes that the placement was appropriate and provided the Student with educational instruction that was specifically designed to meet the Student’s unique special education needs and he was supported by such services that are necessary to permit him the benefit of educational instruction.

Based upon the foregoing, by the preponderance of the evidence, the Parent has met its second prong of the three Burlington/Carter criteria that the Student’s unilateral placement at the Academy is appropriate for retroactive tuition for the 2020-2021 school year.

BALANCING THE EQUITIES

The determination of whether or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not the parent cooperated with the CSE. Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in so doing. Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required." ^[6]Carter, 510 U.S. at 16 (citation omitted).

Here, the DOE did not present evidence that would limit or preclude tuition reimbursement on equitable grounds. Moreover, the testimony and documentary evidence make clear that the Parent cooperated with the CSE and provided the DOE with appropriate and timely written notice (Ex. A, B, L).

Further, the record is devoid of evidence establishing that the cost of the private education was unreasonable, and the District has not “identified... particular services provided by [the School] that the district considered unnecessary to the provision of a FAPE (and for which reimbursement was therefore not required) or... otherwise shown that only a portion of [the student’s] tuition cost should be reimbursed” (M.H., 685 F.3d at 254-55 n.12).

Based on the foregoing, the equities lean in favor of the Parent to support the Parents’ claim for retroactive tuition at the Academy for the 2020-2021 school year. There are no equitable factors that disfavor funding the parents’ unilateral placement.

The tuition for the Student’s 2020-2021 school year at the Academy is the sum of $118, 500, and the Parent paid a deposit of $2500.00, leaving a balance of $118, 500. (Ex. C, D, E).

Further, the Parent requested direct funding for the Student’s tuition balance for the school year at issue. In the Ten-Day Notice, dated August 26, 2020, the Parent stated that the DOE funded the Student’s tuition at the Academy for the 2018-2019 school year through settlement, and the Parent was engaged in settlement discussions with regard to Student’s tuition at the Academy for the 2019-2020 school year, and no changes have been made to the Student’s recommended program (Ex. B).

Therefore, the Parents have met the third of the three Burlington/Carter criteria for public funding/tuition reimbursement for the Student’s tuition at the Academy for the Student’s 2020-2021 school year.

COMPENSATORY EDUCATION

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).  Compensatory education relief may be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]).  The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 [2d Cir. 2014] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and... compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 [2d Cir. 2015]; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would Student have accrued from special education services the school district should Student have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]).

Accordingly, an award of compensatory education should aim to place the student in the position he or she would Student have been in Student d the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address [] the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that “[c]ompensatory awards should place children in the position they would Student have been in but for the violation of the Act.

Here, the record demonstrates that the District did not provide a FAPE for the Student for the 2020-2021 school year. Further, the record demonstrates that for prior school years the DOE paid for the Student’s tuition at the Academy for the 2018-2019 school year through settlement, and the Parent was engaged in settlement discussions with regard to Student’s tuition at the Academy for the 2019-2020 school year. (Ex. B). The Parent requests an award for updated independent evaluations for the Student to be paid by the DOE at market rate.

Independent Education Evaluation

As per New York State Commissioner’s Regulations section 200.5(g)(1), if the parent disagrees with an evaluation obtained by the District, the parent has the right to obtain an independent educational evaluation at public expense. If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to requesting a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. See, NYCRR 200.5(g)(1)(iv).

Here, the record is clear the Student was denied a FAPE for the school year at issue. The record further demonstrates that the DOE failed to conduct triennial reevaluations for the Student The DOE must conduct an evaluation every three years. 34 C.F.R. § 300.303(b)(2). The Student’s last evaluation conducted by the DOE was in 2013. For over 5 years, the Student requires updated evaluations in occupational therapy, speech-language therapy, physical therapy, neuropsychological, and classroom observations. The record demonstrates the Student receives physical and occupational therapy services at the Academy due dysregulation issues. (Ex. L). The Student has significant delays in speech, including expressive language and social communication. (Ex. L, M, J, K). The Student requires a classroom observation, pursuant to 8 NYCRR § 200.4(b)(iv). Furthermore, the Student receives counseling services for various emotional issues related to dysregulation issues. (Ex. M). Based upon the foregoing, the DOE failed to provide for all these updated evaluations for the Student since 2013. The Student requires such evaluations that will be paid by the DOE at market rate, and such evaluators will be selected by the Parent.

Individualized Education Plan In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the Individualized Education Plan (“IEP”) developed by its Committee on Special Education (“CSE”) through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student’s recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998). Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and Parent of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206.

For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress must be meaningful, i.e., more than mere trivial advancement. Walczak, supra. In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA.” In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.” The District asserted in their closing brief (Ex. IHO I), Appeal No. 21-210 (December 2021), the SRO found that the parents in that case were not entitled to “an order requiring the CSE to convene and amend the student's IEP to increase the mandate for home-based SETSS” (Appeal No. 21-210, at p. 11). The SRO noted that, “[a]s the IHO observed, directing the CSE to amend the IEP for the 2021-22 school year would tend to undermine the district's continuing obligations to the student and the procedural process of the IDEA” (Id.).

Here, the Student is required to have updated evaluations and such evaluations will be paid by the DOE, and the Parent should make such evaluations available to the CSE for the development of the Student’s prospective IEP.

Based upon the foregoing, the Parent’s request to incorporate various terms such as classroom size, into the Student’s prospective IEP does tend to undermine the District’s obligation, and such requests are denied.

Compensatory Educational Services for Related services The Parent did not demonstrate that the Student requires an order as a compensatory award for missed services, specifically the Student’s related services that the Student should have received from the beginning of the 2020-2021 school year starting in July 2020 until the Student started at the Academy on September 14, 2020. The Parent testified that the Student was enrolled at P.79, a District 75 public school, from July 2020 until mid-August 2020. (Tr. 57-58). Further, the Parent is asserting that the Student’s unilateral placement at the Academy is appropriate, and the record consistently demonstrates that the Student made progress at the Academy for the school year at issue, which was only for a 10-month school year. (Tr. 63-65, Ex. L, M). Based upon the foregoing, the Parent’s request for an order as a compensatory award for missed services, related services from July 2020 to September 14, 2020 is denied.

TRANSPORTATION

Pursuant to Education Law §4402(4)(d) provides that a board of education must provide transportation up to a distance of 50 miles to and from a nonpublic school which a student with a disability attend if “such child attends such school for the purpose of receiving services or programs similar to special educational programs recommended for such child by the local committee on special education.” The statute requires that a board provide such transportation when a parent makes a unilateral placement in a school which offers a program similar to that recommended in the child’s IEP. The record demonstrates the Student is a child with an educational handicapping condition, as he requires placement in a special education program (Ex. A). The distance between the family’s home and the Academy’s location is less than fifty miles and supports the parent’s claim for transportation (Ex. A, B).

CONCLUSIONS

Based upon the foregoing reasons, the undersigned IHO concludes based upon the preponderance of the evidence the following findings:

• • The DOE failed to meet its burden of proof to demonstrate that the Student was provided a FAPE for the 2020-2021 school year. Thus, the Student was deprived a FAPE for the 2020-2021 school year;
• • The Parent has met its burden and demonstrated that the unilateral placement of the Student in the Academy for the 2020-2021 school year was an appropriate placement and provides an education instruction that is specifically designed to meet this Student’s unique needs;
• • The Parents are entitled to have tuition reimbursement from the DOE for the Student’s tuition at the Academy for the 2020-2021 school year, for the sum of $2500.00 minus any payments made by the DOE (Ex. C);
• • The Student is entitled to direct funding by the DOE for the Student’s tuition for the 2020-2021 school year for the balance sum of $116, 000.00 ($118,000 minus $2500), minus any payments made by the DOE (Ex. C, D, E, K).
• • The DOE failed to provide for updated evaluations for the Student since 2013: Occupational Therapy; Speech and Language Therapy; Physical Therapy; Classroom Observation, and Neuropsychological. The Student requires updated independent educational evaluations that will be paid by the DOE at market rate, and such evaluators will be selected by the Parent;
• • The Parent’s request to incorporate various terms into the Student’s prospective IEP does tend to undermine the District’s obligation, and such requests are denied (Ex. A at 14);
• • The Parent’s request for an order as a compensatory award for missed services, related services from July 2020 to September 14, 2020 is denied; and
• • The Student is required to have special transportation to and from the Academy.
• • ORDER

Based upon the foregoing findings of fact and conclusions of law herein, the IHO hereby orders the following:

IT IS ORDERED

• • Upon the DOE’s receipt of the Academy’s invoice, supporting documents, and the Student’s attendance records for the 2020-2021 school year, the DOE is to provide retroactive reimbursement for the Student’s tuition at the Academy for the sum of for the sum of $2500.00 minus any payments made by the DOE (Ex. C);
• • Upon the DOE’s receipt of the Academy’s invoice, supporting documents, and attendance records, the DOE is to directly fund the Student’s tuition for the 2020-2021 school year, for the balance sum of $116, 000.00 ($118,000 minus $2500), minus any payments made by the DOE (Ex. C, D, E, K).
• • Upon the DOE’s receipt of the provider’s invoice, supporting documents, the Student requires updated independent educational evaluations such as Occupational Therapy; Speech and Language Therapy; Physical Therapy; Classroom Observation, and Neuropsychological, which will be paid by the DOE at the market rate to be determined by the DOE’s implementation unit, and such evaluators will be selected by the Parent;
• • The Parent’s request to incorporate various terms into the Student’s prospective IEP does tend to undermine the District’s obligation, and such requests are denied (Ex. A at 14);
• • The Parent’s request for an order as a compensatory award for missed services, related services from July 2020 to September 14, 2020 is denied; and
• • The DOE is to provide the Student with special transportation to and from the Academy.

DATED: March 31, 2022

___________________________________

Impartial Hearing Officer-Ann Marquez

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.

District’s Exhibits:

No Exhibits

Parent’s Exhibits:

A. September 25, 2020 Impartial Hearing Request 10 pages

B. August 26, 2020 Ten Day Notice 5

C. September 10, 2020 Tuition Deposit Check 1

D. September 9, 2020 Enrollment Contract 6

E. September 18, 2020 Tuition Affidavit 1

F. September 2020 Fall 2020 Learning Plan 1

G. November 10, 2020 Updated Fall 2020

Learning Plan 1

H. September 2020 Class Schedule 1

I. March 2021 Attendance Report 1

J. December 2020 Progress Report 9

K. June 2021 Progress Report 10

L. Jan. 31, 2022 Affidavit of REDACTED 6

M. Jan. 31, 2022 Affidavit of REDACTED 8

IHO’s Exhibits:

I. District’s Closing Brief 3/18/2022 12 pages

II. Parent’s Closing Brief 3/18/2022 15

Footnotes

[1] Exhibits shall be referred to as follows: “Alphabet Letters” for Parent Exhibit; “Numbers” for the District’s Exhibits; and “Roman Numerals” for the Impartial Hearing Officer’s exhibits.

[2] Reference to the Transcript shall be referred to as “Tr.”

[3] See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 58 (2005)

[4] Gagliardo, 489 F.3d at 115; C.B. v. Garden Grove Unified School Dist., 635 F. 3d 1155, 1159(9th Cir.).

[5] C.F.R. 300.14 8©; See also Carter, 510 U.S. at 14.

[6] Bch. Comm. of Burlington v. Dept. of Educ., 471 U.S. 359-556; Forest Grove Sch. Dist. V. T.A. 557 U.S. 230; and A.C., 553 F.3d at 171