Skip to main content
Special Education Law
DECISIONDistrict PrevailedIHO Case No. 546337

Impartial Hearing Decision

June 8, 2021·Jeffrey Silverson·Case Number: 2020-2021/6

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

FINDINGS OF FACT AND DECISION

Case Id: 546337

District Case Number: 2020-2021/6

Student’s Name: [Redacted]

Date of Birth: [Redacted]

Hearing Requested By: Parent

Dates of Hearing: February 24, 2021

March 3, 2021

March 5, 2021

March 9, 2021

April 8, 2021

Actual Record Closed Date: May 24, 2021

Hearing Officer: Jeffrey Silverson, Esq.

Case Id: 546337

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 24, 2021

FOR THE STUDENT:

[Redacted], Attorney

FOR THE DISTRICT:

[Redacted], Attorney

ALSO PRESENT:

[Redacted]

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 3, 2021

FOR THE STUDENT:

[Redacted], Attorney

FOR THE DISTRICT:

[Redacted], Attorney

ALSO PRESENT:

[Redacted]

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 5, 2021

FOR THE STUDENT:

[Redacted]

FOR THE DISTRICT:

[Redacted], Attorney

ALSO PRESENT:

[Redacted]

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 9, 2021

FOR THE STUDENT:

[Redacted]

FOR THE DISTRICT:

[Redacted], Attorney

ALSO PRESENT:

[Redacted]

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 8, 2021

FOR THE STUDENT:

[Redacted], Attorney

FOR THE DISTRICT:

[Redacted], Attorney

ALSO PRESENT:

[Redacted], Attorney

I. PROCEDURAL HISTORY

On November 2, 2020, I was officially appointed by the District as Impartial Hearing Officer in the case of SED #546337, otherwise known as [Redacted] “[Redacted”) versus the [Redacted] CSD.[1] On that day I received, via email, the due process complaint (DPC) that had been sent to the District by Parent’s counsel, [Redacted], Attorney, pursuant to the Individuals with Disabilities Education Improvement Act (IDEIA), 20 U.S.C.§1415 (f). See Exhibit A Eight days later on December 10, 2020, I received via email from [Redacted], Attorney the District’s response to the aforementioned DPC.

On November 28, 2020, the mandatory resolution period (8 NYCRR §200.5(j)(2)) elapsed, and I proceeded to contact the parties to set up a pre-hearing conference, which was then duly conducted via telephone on December 10, 2020. At the conference, underlying issues were brought out, and a follow-up telephonic conference was scheduled and later conducted on January 7, 2021. At that time, hearing dates were established, and a hearing pursuant to the Individuals with Disabilities Education Improvement Act (I.D.E.I.A.) was later commenced to decide matters raised in the due process complaint and elaborated on during the pre-hearing conference. 20 U.S.C. §1415 (f).[2] The record was closed on May 24, 2021 upon receipt of written closing briefs submitted by the parties, which I have entered into evidence as Ex. VI (Parents), and Ex. VII (the District). Appended to this decision are lists of the persons in attendance at the hearings, documents received in evidence, and a statement regarding the right to appeal. See 8 NYCRR § 200.5(j)(5)(v).

II. PRELIMINARY FACTUAL BACKGROUND

A brief review of the Student’s past schooling is a necessary component to understand the party positions in this matter. Prior to his [Redacted] birthday, [Redacted], was diagnosed with autism. Tr. 276-277 His September 2020 IEP notes that due to it, he has “significant delays in the areas of cognition, speech and language and social development which interferes with his ability to participate in age appropriate activities. Exhibit 11-8 After receiving special education services from [Redacted] CPSE, his mother [Redacted] removed him from a district elementary classroom, and home-schooled him from the close of second grade until the commencement of sixth grade. Tr. 278 [Student] then attended a District middle school and high school into the 2017-2018 SYs. Tr. 279 After the first three days of district high school, [Redacted] said that she was receiving phone calls to pick her son up from school as his behavior was erratic, and he was eloping. Tr. 280 Then, at a January 2019 CSE meeting, she was informed that the district required at least six weeks of evaluation to place him out of district. Tr. 282 The CSE then met on January 28, 2019 and gave authorization for a functional behavior assessment to be concluded, which led to the creation of a behavioral intervention plan “(BIP”). Additionally, a cognitive assessment – which [Student] was unable to complete – demonstrated that he was significantly below cognitive and academic levels for his age group. Tr. 29 Within a June 10, 2019 Psychological Report (Exhibit 7), his General Adaptive Composite fell into the “Extremely Low” range. Exhibit 7-3 Nine days later, at another CSE meeting, applications were sent to out-of-district day programs. However, and significantly, while the evidence is inconclusive as to why, one of the applications was sent by the district to a non-NYS approved school – [Redacted]). Then, some four months later, during a meeting held on October 10, 2019, the CSE recommended [Redacted] [3], which [Redacted] entered on October 23, 2019. Exhibit 13; Tr. 46-48

Subsequently, during a series of CSE meetings held during the 2019-2020 SY, the Parent requested that her son be placed residentially at [Redacted]. Agreeing with the need for a residential placement, in April of 2020, the District commenced a search for such a program for the Student, only looking for a NYS approved school. The Parent – who believed that her son required [Redacted] – sent letters to various state officials asking that [Redacted] remain there, residentially. However, NYSED’s response to her efforts was that the District was required to look for a state-approved residential program. Finally, on September 10, 2020, the CSE convened once more, and recommended that [Redacted] be placed in a 12-month service and/or program (See Exhibit 11-15) at the State-approved [Redacted] for the current 2020-2021 SY with enumerated related services. [Redacted] is located in Pennsylvania. The Committee noted that the Parent was not in agreement with their placement or with the meeting recommendations. Exhibit 11-2 Finally, [Redacted] was prepared for [Redacted] with a 6:1:1 student–teacher ratio during the 10-month SY, and a 4:1 ratio during the extended school year (“ESY”) sessions[4], in addition to having a 1:1 aide for him during the academic portion of the ESY day. See Exhibit 11-14-15

III. POSITIONS OF THE PARTIES

The District

1) The District maintains that [Redacted] was offered a free and appropriate public education (FAPE) during the 2020-2021 SY at the [Redacted] within a 6:1+1 special class residential placement, that included appropriate related-services.

2) The District is not under any obligation to provide funding for his residential attendance at the non-approved [Redacted] school for the 2020- 2021 SY.

3) The District has been forthright with the Parent, and any equitable question favors them.

The Parent

  • • The Parent maintains that [Redacted] was not offered a free and appropriate public education by the District for the 2020-2021 SY.
  • • On the other hand, the residential placement at [Redacted] for the 2020-2021 SY is appropriate. In the meanwhile, the District is under a pendency obligation to reimburse the Parent for the Student’s continuing attendance at [Redacted] during the 2020-2021 SY.
  • • Equities favor the Parent in that she fully cooperated with the CSE process. The District should therefore fund the Student’s residential placement at [Redacted] for the 2020-2021 SY.

IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW

General Legal Framework and Standard The Parent is seeking a couple of Orders by this IHO to remedy claimed deficiencies by the District. Before addressing issues underlying those requests, a brief synopsis of relevant special education law will be helpful. I will then supplement the synopsis by interweaving more specific law with relevant testimony and exhibits to reach findings of fact.

The underlying intention of the IDEIA (20 U.S.C. §§1400-1482) is to provide children with disabilities a FAPE. A foundational Supreme Court decision, Rowley, in defining what was meant by a FAPE held that the IDEA does not require states to “maximize the potential of each handicapped child commensurate with the opportunity provided non-handicapped children.” It does set a floor, however, and holds that a State furnishes a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Board of Education v. Rowley 458 US 176, 203 [1982].

Rowley also underscored procedural protections that emphasized parental participation as an important protection to due process rights. While not every violation is considered “material,” the Supreme Court and Congress have nevertheless underscored the importance of the procedural provisions found in the IDEA. Rowley, 458 U.S. at 205. So has the Second Circuit: "'(A)dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998), quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009)).

The 2004 IDEA amendments have codified the procedural part of the Rowley inquiry, with continuing emphasis on the opportunity for parental participation. Specifically, in matters alleging a procedural violation, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies—

  • • Impeded the child’s right to a FAPE;
  • • Significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent’s child; or
  • • Caused a deprivation of educational benefit.

See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008); Application of a Child with Appeal No. 07-007. Indeed, adequate compliance with the aforementioned procedures will in most cases satisfy what an IEP requires substantively. Schaffer, supra 126 S.Ct. at 532 citing Rowley at 206; M.S. v. Board of Education of the City School District Yonkers, 231 F.3d96, 102 (2d Cir. 2000) In other words, procedural violations matter only if at their root lies a substantive denial of FAPE. Furthermore, ‘[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not,’” L.O. v. N.Y.C. Dep’t of Educ., 822 F.3d 95, 123 (2d Cir. 2016) (internal citation omitted.)

As (ii) in the above codification reiterates, parents are to be an integral participant in the development of an IEP. As articulated by the Supreme Court: “Parents and guardians play a significant role in the IEP process. They must be informed about and consent to evaluations of their child under the Act. § 1414(c)(3). Parents are included as members of ‘IEP teams.’ § 1414(d)(1)(B). They have the right to examine any records relating to their child, and to obtain an ‘independent educational evaluation of the[ir] child.’ § 1415(b)(1). They must be given written prior notice of any changes in an IEP, § 1415(b)(3), and be notified in writing of the procedural safeguards available to them under the Act, § 1415(d)(1). Schaffer, supra, at 53. Furthermore, parental participation at IEP meetings must be “meaningful”. Deal v Hamilton County Board of Education, 392 F.3d 840, 853 (6th Cir. 2005).

Some four years ago, in Endrew F. v. Douglas Cnty. Sch. Dist. Re-1, 137 S. Ct. 988, 998-1001 (2017) - the Supreme Court in a unanimous decision - while resolving a split within the Circuit Courts - revisited and reshaped its early substantive standard enunciated within Rowley. Without reversing its initial delineation of what constitutes an appropriate offering by a school district to a child within a general education environment receiving special education services, and without clarifying what constitutes a “meaningful benefit”, it addressed the appropriate treatment of a child within a special education setting, and added that while an IEP need not provide a maximal benefit to the child, it must offer more than a de minimus one. Specifically: "To 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." Endrew F. id., at 999. In other words, the Court emphasized progress for the individual child given his or her unique needs. “After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." (citations omitted) Id. Thus the Court - as in its earlier Rowley decision – once again leads us to an individualized fact intensive inquiry, albeit from a different perspective, which is a focus by IEP teams on the individual child and whether appropriate progress is being made in light of that child’s unique, and often evolving circumstances.[5]

PENDENCY DURING THE 2020-2021 SCHOOLYEAR

As a threshold matter, within the Parent’s DPC, she asks that her son remain in his current, operative placement at [Redacted] (See Exhibit 1-4) until, in effect, I have issued a decision regarding the appropriateness of both the District placement of her son at [Redacted], and of his continuing residential attendance at [Redacted].

For the 2019-2020 school year, the Student was placed into a [Redacted] day program by the District. See Tr. 46-47 and 205; Exhibit 2-1-2 The Second Circuit sums up applicable law regarding pendency as follows:

During the pendency of special education proceedings, unless the school district and the parents agree otherwise, federal and state law require that the child remain in his or her then-current educational placement. Mackey v. Bd. of Education, 386 F.3d 158, 163 (citations omitted).

The State Review Office (“SRO”) provides some reasoning to the above rule.

Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir, 1982]; see Wagner v. Bd. of Educ., 335 F.3d 297, 301 [4th Cir. 2003J; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students... from school" (Honig v. Doe, 484 U.S. 305,323 [1987] [emphasis in original]; Evans v. Bd. of Educ., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996]; Bd. of Educ. v. Ambach, 612 F. Supp. 230, 233 (E.D.N.Y. 19851). SRO No. 12-098.

Although not defined by statute, the phrase “then current placement” referred to in Mackey, supra has been found to mean: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the pendency provision of the IDEA was invoked; or (3) the placement at the time of the previously implemented IEP. See id. However, if there is an agreement between the parties on placement during the proceedings, it need not be reduced to a new IEP, and it can supersede the prior unchallenged IEP as the then current placement. See Evans v. Board of Educ. of the Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1189 n. 3 (S.D.N.Y. 1996); see also Board of Educ. v. Schutz, 137 F. Supp. 2d 83 (N.D.N.Y. 2001), aff’d, 290 F.3d 476, 484 (2d Cir. 2002), cert. denied 123 S.Ct. 1284 (2003); Letter to Hampden, 49 IDELR 197 (OSEP 2007).

I find the last agreed-upon IEP, dated October 10, 2019 to be the Student’s current educational placement, which includes a day placement at [Redacted] on October 23, 2019. Exhibit 13-1[6]; Tr. 283. Further, the program and services are to commence from the filing date of the DPC, or October 29, 2020. 20 U.S.C. §1415(j). See, Doe v. East Lyme Bd. of Educ. 790 F.3d 440, 456 [2nd Cir. 2015]. Regarding the pendency component, the Parent is to be responsible for the non-pendant, residential portion of said placement. District counsel has not contested such pendency. See, Exhibit 2-3

Factual findings The IEP Placement

A outlined above, the District presented four witnesses: [Redacted] to argue that its residential placement in a 6:1+1 classroom at [Redacted] with counseling, management needs and test modifications with a 4:1 arrangement during the summer session was appropriate, while the private, residential placement at [Redacted] was not. See Exhibit 11-1 The Parent countered with three witnesses - one of whom was [Redacted]’s mother - to argue the opposite.

Prong I: Appropriateness of the District Recommendation for [Redacted] at [Redacted]:

Underlying Law In the seminal case of Burlington, the Supreme Court held that in an appropriate situation, retroactive tuition reimbursement to parents was allowable under the Act. To make such a determination, it formulated a three-part examination of what is required to be shown. The three parts, or “Prongs” are whether: (1) The placement offered by their school district was inadequate or inappropriate; (2) The program selected by the parent was appropriate; and, (3) If equities supported the parent’s claim. School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985). Should a parent fail in either of the initial two Prongs, the inquiry terminates at that point and reimbursement is denied. Id. The Supreme Court later put the burden of persuasion in an administrative hearing upon the party seeking relief. Schaffer v. Weast, 546 U.S. 49, 59-62 [2005]. However, the New York State Legislature subsequently reversed that obligation, and placed the burden of production and persuasion upon the school district, except as regards Prong 2, where the parent is tasked with the burden. (See Educ. Law §4401[1][c], as amended by Ch. 583 of the Laws of 2007)

District Witnesses

A outlined above, the District presented four witnesses: [Redacted] to argue that its residential placement in a 6:1 classroom at [Redacted] with counseling, management needs and test modifications was appropriate. The Parent countered with three witnesses - one of whom was [Redacted]’s mother - to argue the opposite.

[Redacted] – is a School psychologist, and the CSE chairperson for out of district students. She said that [Redacted] was not able to undergo formal testing. While he is able to perform some basic daily living skills, his adaptive functioning is on the lower end. Overall, he is functioning well below his age appropriate expectations. She said that when he State became aware that [Redacted] had been placed in a non-NYS approved program at [Redacted], she was directed to a “hard-to place unit” that included 23 schools. She then sent a referral to all of them, and per Parent request, copied her on each. Tr. 72-73 During the September 10, 2020 meeting, with a [Redacted] representative on call, the Team discussed Parent concerns about that school. The concerns discussed included one-to-one aides to her son, and potential transportation options. Specifically, regarding the latter, [Redacted] testified: “when a student is going home, they have staff that could potentially take the train from their location to [Redacted] and meet the Parent at [Redacted] so that she could then take [Redacted] home. Also vice versa, if the parent was coming to the school, they could set up transportation to meet mom at the [Redacted] train station. Regarding the Parent’s calling for a 24-hour one-to-one aide, she said that at night, [Redacted] maintained a ratio of one staff for two students. They all had radios or walkie talkies at hand. Further, there were additional members that could be called in should the need arise. Tr. 85-86 Also, [Redacted] would be placed in a class with similar high management students. Tr. 92

[Redacted] – who has been the Director of Special and Alternative Education for three years - was the District’s next witness. Tr. 169-170 She said that [Redacted]. told her that as a residential student, her son would require an “around-the-clock” 1:1 aide. Tr. 191

[Redacted] – the Vice President of Admissions and Clinical Services at [Redacted], As for other potential students, a Team - which included related services personnel - reviewed [Redacted]’s application packet. Ex. 11-14 6:1:1 Ex. 11-5 Upon review, they believed that he was a good candidate for their school and that they would be able to design a program for him. Tr. 140-141 Furthermore, [Redacted] continued: “guys in that classroom or females would be very similar in age, functioning level, and behaviorally similar to him.” Tr. 142 Indeed, [Redacted] could provide a 6:1:1 classroom as written in the Student’s IEP under his present levels of performance. Exhibit 11-5-6 It could also provide the called for related services. [Redacted] could place [Redacted]. in a 6:1:1 with related services, as written in his IEP. Tr. 143-144 On cross-examination, Mr. [Redacted] added that while [Redacted] has 1:1 aides available (Tr. 162), and while it was listed for [Redacted] within his IEP, the Team decided that they were not necessary due to the design of the classes that they had in place for him. Tr. 158-159 [Redacted] is located in [Redacted], P.A. Tr. 132

[Redacted] – who is in her third year as central CSE chairperson for the [Redacted] District was the District’s concluding witness. She responded similarly to [Redacted] regarding Parent concerns about a 1:1 aide and distance of [Redacted] from her home. She added that [Redacted] itself was about a 45 minute to an hour drive from [Redacted]’s home. Significantly, and contrary to Parent allegations, she testified that the Committee and [Redacted] both listened to and addressed [Redacted]’s concerns at the placement meeting. Indeed, [Redacted] was selected at the close of the meeting.

Parent Witnesses

[Redacted].’s mother, [Redacted] said that her son was diagnosed with autism just prior to his third birthday. After going through many placements during the following years, on October 23, 2019, [Redacted] began a day program at [Redacted]. His transition there was “rough.” She had a hard time getting him there, and he was physically aggressive at [Redacted], in addition to eloping. She added that in March 2020, the difficulties stopped. Due to COVID though, he then had to return home, which was another difficult transition for him. His class size at [Redacted] was 4:1 with a one-to-one aide. Then, at the September 10, 2020 meeting, the CSE recommended [Redacted]. [Redacted] was concerned because she doesn’t drive, and public transportation would take her 4 hours and 47 minutes to get there. Furthermore, she added, [Redacted] was part of a community where he lived, while at (relatively) nearby [Redacted], he has grown happier and calmer. She reiterated that her son needed a 24-hour 1:1 aide due to elopement. See Exhibit 11-2

[Redacted] is the Director of education at [Redacted]. While [Redacted].'s behavior was difficult during his early time at her school, she never felt that [Redacted] was not able to manage them. Tr. 368 There were times when she believed that [Redacted] needed a residential placement due to his high needs, that would enable him to achieve what was not able to be provided at home. Tr. 376

[Redacted] is [Redacted].’s teacher at [Redacted] and has known him since he first entered the school. He testified that he has witnessed improved communication and a decrease in eloping and aggression. He has learned to get off the bus in the morning voluntarily and with “high-fives” to security, which was not the case when he initially entered [Redacted].

In sum, I find that the Parent witnesses did not present any solid testimony that the District IEP and placement at [Redacted] failed to follow through on the substantive obligation expressed in Endrew, supra that it was reasonably calculated to enable [Redacted]. to make “appropriate progress in light of his circumstances." Endrew F. supr., at 999

Was the Parent Denied Meaningful Participation at the September 10, 2020 CSE Meeting

No, the Parent was not denied meaningful participation at the meeting that placed her son at [Redacted]. For one thing, her concerns were clearly brought out in the Comments section of the recorded IEP meeting. Those concerns centered on the program and the distance from her home. She also wanted a 1:1 aide due to elopement which the IEP indicated would be provided for school hours. See Exhibit 11 Significantly, while the Committee addressed [Redacted]’s uneasiness, the Parent has not presented any evidence that indicates much less demonstrates otherwise.

Appropriateness of the September 10, 2020 IEP Program Recommendations for a 6:1+1 Special Class in an out-of-district School for [Redacted].

The Parent contends that the IEP developed by the CSE for her son for the 2020-2021 school year was not reasonably calculated to provide meaningful educational benefit for a number of reasons, including being overly restrictive, having an inappropriate class size, insufficient availability of a 1:1 aide, no plan for elopement, and unclear IEP goals. See Exhibit 1 For starters, I can find no procedural violation by the District, nor has a well-founded one been presented by the Parent.

As noted above, NYS law requires that the District bear the burden of going forward in addition to the ultimate burden of proof regarding the appropriateness of its placement of [Redacted]. at the [Redacted] School for the 2020-2021 SY. For the foregoing reasons, I find that the has met those burdens. See NY Education Law §4404 [1] [c] Importantly, the placement was rooted in evaluations and included an FBA and BIP.

Nevertheless, for reasons stated above, I find that the [Redacted] School, if not an ideal placement[7], is an appropriate one for the SY at issue. I find that the District proceeded in a logical, and orderly progression to locate an appropriate out-of-District residential placement for [Redacted] that was NYS approved. It then prepared a program at [Redacted] that took into account most of the Parent’s heartfelt concerns regarding her son’s needs for the current SY. I also note that [Redacted] testified that due to staff, academic and therapeutic supports, she maintained no concern that [Redacted] would not be able to follow through and implement its promised program. Tr. 91 Since I am finding for the District on Prong 1, I need not consider the Parent’s desire to maintain her son’s attendance at [Redacted] for an ongoing residential program during the 2020-2021 SY.

Equitable Considerations

I find that the District met the equitable test enunciated in Burlington, supra, and Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247 (2009), and been forthright with the Parent, while considering her concerns regarding the need of her son, as expressed at the various CSE meetings, especially at the definitive one held on September 10. 2020. On the other hand, the Parent declined to work with the District at intake meetings during the program search, and vigorously insisted – together with representatives that were brought to the CSE meetings - that the District place [Redacted] at [Redacted], a placement that was not NYS approved, and as had been explained by the District was not permissible. I thus find that the equitable balance falls squarely in the District court, With the District having provided a FAPE for [Redacted., and finding beyond that –regarding the equities – that the District has been forthright with the parents, I will not be ordering the District – as alternatively requested in the Parent’s DPC - to convene a meeting of the CSE for the purpose of reviewing [Redacted]’s progress at the [Redacted] day program prior to any recommendation of a change in placement.

Order

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,

IT IS HEREBY ORDERED THAT:

As a temporary entitlement nunc pro tunc commencing from October 29, 2020 to the issuance of this final Order, Student [Redacted] is to receive tuition payment for a day placement at the [Redacted].

As the District has offered the Student a free and appropriate public education, the Parent’s request for placement at [Redacted]’s residential program is DENIED, and excepting the Pendency ordered in the above paragraph, I Order that the remainder of the Complaint be dismissed.

Dated: June 8, 2021

________________________

JEFFREY SILVERSON, ESQ.

Impartial Hearing Officer

Hearing Officer’s Findings of Fact and Decision Case Id: 546337

PLEASE TAKE NOTICE

Within 40 days of the date of the decision, the parent and/or the school district has a right to appeal the decision to an SRO under Education Law Section 4404 and the IDEA. If either party plans to appeal the decision, a notice of intention to seek review must 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 must be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party must file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the OSR within two days after service of the request for review is complete. The rules of procedure for appeals before a 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 the Office of State Review website  (http://www.sro.nysed.gov).

Officer’s Findings of Fact and Decision

Case Id: 546337

DOCUMENTATION ENTERED INTO THE RECORD

DISTRICT

Exhibits Description Date Page(s)

1 Due Process Complaint Notice 10/29/2020 4

2 Response To Due Process Complaint Notice 12/10/20 3

3 Academic Performance 01/22/19 2

4 Functional Behavior Assessment/Behavioral

Intervention Plan 03/14/2019 7

5 Educational Evaluation 05/31/2019 4

6 Social History Update For 06/06/2019 2

Committee On Special Education

7 Psychological Report 06/10/2019 7

8 Re-evaluation 06/10/2919 1

9 Summary Report Of Challenging

Behaviors undated 4

10 2019-2020 IEP Program Review 04/21/2020 17

11 20-2021 IEP Requested Review 09/10/2020 18

12 2018-2019 IEP Program Review 01/28/2019 12

13 2019-2020 IEP Requested Review 10/10/2019 13

14 2019-2020 IEP Annual Review 06/19/2020 13

15 2019-2020 IEP Program Review 04/01/2021 17

PARENT’S[8]

Exhibits Description Date Page(s)

B Photo of [Redacted] at the Undated 1

[Redacted] School

C Photo of [Redacted] at the [Redacted] School Undated 1 D Progress Report 05/2002 to 01/2021

IMPARTIAL HEARING OFFICER

I Summary and Order 12/11/20 8

II Order Extending the Compliance Date 01/07/21 1

III Order Extending the Compliance Date 02/05/21 1

IV Order Extending the Compliance Date 03/06/21 1

V Order Extending the Compliance Date 04/09/21 1

VI Parent’s Memorandum of Law 05/21/21 18

VII District Memorandum of Law 05/21/21 23

Footnotes

[1] The District had initially contacted me three days earlier on October 20, 2020.

[2] The hearing transpired on four dates: February 24, 2021, March 3, 2021, March 5, 2021, March 9, 2021 and April 8, 2021. Extensions to the case timeline were issued in accordance with the Commissioner’s Regulations at 8 N.Y.C.R.R. §200.5(j)(5)(i) and 34 C.F.R.§300.515(c). See Exhibits. II, III, IV and V.

[3] While the IEP reads that [Redacted] was parentally placed Exhibit 13-1, the transcript says otherwise.

[4] See Exhibit 11-14 and 11-16 (September 2020 IEP)

[5] As of the date of this decision, the Second Circuit has yet to definitively comment on the Supreme Court ruling. “Because we conclude that the School District failed to provide [Redacted] with a free and appropriate public education under the existing precedent in this circuit, we need not decide whether Endrew F. raised the bar for a free and appropriate public education or left Second Circuit precedent intact (the Supreme Court's decision certainly did not reduce the force of the requirement).” J.C. v Katonah-Lewisboro Sch. Dist., 2017 U.S. App. LEXIS 8171 [2d Cir May 9, 2017, No. 16-1838].

[6] While the IEP states that [Redacted] was “Parentally Placed” Exhibit 13-1, District witness [Redacted] indicated that it was a District placement. Tr. 205

[7] Out of State placements have less SED oversight than in-State ones do.

[8] Proposed Exhibit A was withdrawn and not offered into evidence, so as not to duplicate a District Exhibit.