New York City Department of Education, Impartial Hearing Decision

NYSED # 551519 / NYC # 207750

FINDINGS OF FACT & DECISION

Case No.: 207750

Student’s Name: [REDACTED]

(hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

(“District”)

Hearing Request by: [REDACTED]

(“Parent”)

Hearing Date(s): 2/7/22, 3/3/22

Record Close Date: 5/24/22

Hearing Officer: Sebastian A. Weiss

NAMES AND TITLES OF PERSONS WHO APPEARED:

For the Student:

[REDACTED]

(“Parent Representative”)

[REDACTED]

(“Mother”)

[REDACTED]

(“Unilateral Placement Supervisor”)

For the Department of Education:

None.

BACKGROUND AND PROCEDURAL HISTORY

On April 9, 2021, the Parents filed a Due Process Complaint (“DPC”) pursuant to the Individuals with Disabilities Education Act (“IDEA”). The relief sought by the DPC includes direct payment or reimbursement of tuition for the Student’s unilateral placement at [REDACTED] (“Unilateral Placement”) for the 2020-21 school year (“School Year”). (Ex. A).^[1]

The undersigned Hearing Officer was appointed to the above matter on December 9, 2021. A prehearing conference was conducted on December 21, 2021. The hearing on the merits was conducted on February 7 and March 3, 2022.

ISSUES AND ARGUMENTS

PARENT CASE:

The DPC alleges, among other items, that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the IDEA for the School Year by failing to hold an annual meeting, develop a timely individualized education plan, and provide an appropriate placement for the Student. (Ex. A-2)

The Parents’ case is based on the following:

The District has the burden of proof to show that they created and implemented an appropriate special education program for the Student. (Feb. 7 T 18)

The Individualized Education Service Program (“IESP”) created on March 24th, 2019 was inadequate and insufficient to enable the Student to make meaningful academic progress during the School Year, in light of the Student's significant cognitive academic, behavioral, and social challenges. (Id 18-19)

For the School Year, the Student required placement in a full-time special education classroom of up to 12 students, one teacher, and one assistant. (Id 19) The Student also required the development and implementation of a behavioral plan to address the behaviors that impeded the Student's ability to learn, and the related services recommended for the Student on his IESP. (Id)

The Unilateral Placement was an appropriate placement for the Student during the School Year. (Id) The Unilateral Placement developed a customized plan to address the Student's particular needs and to enable him to make academic and functional progress, and the student made actual progress at the Unilateral Placement during the School Year. (Id 20)

The evidence and testimony show that this included the placement of the student in a small class with two teachers at all times, which included a licensed special education teacher, extensive behavioral supports and reinforcements, social skills training, including an ABA paraprofessional. (March 3 T 104-105)

Based on the M.G. v District of Columbia case, 246 F. sup. 3d 1 (D.D.C. 2017), the Parent was not required to provide a Ten Day Notice to the District because the Student previously attended a private school was not being removed from a public school placement. (Id 102)

Although not required, the parent sent a ten-day notice to the District during the School Year to remind the District of its obligation to the Student, requesting an evaluation, and informing the District that she had still not received an evaluation or appropriate placement for the student. (Id)

The Parent did not receive the Procedural Safeguards Notice from the District within a year of enrolling the Student at the Unilateral Placement. (Id 103)

The Parent is not seeking funding of the portion of the tuition attributable to the religious instruction. The Parent is seeking an award of direct payment and/or reimbursement of tuition at the Unilateral Placement for the School Year in the amount of $95,000, which represents the tuition amount of $100,000 minus $5,000 for the portion of tuition that is allocated to religious instruction. (Feb. 7 T 20-21; March 3 T 106)

The Parents presented eleven (11) alphabetically listed documents into evidence. The Parents also presented the testimony of the Unilateral Placement Supervisor and the Student’s Mother.

DISTRICT CASE:

The District did not appear at the hearing or otherwise present any evidence or witnesses.

SUMMARY OF APPLICABLE LAW

The IDEA is a comprehensive statutory framework established by the United States Congress to ensure that students with disabilities are afforded a FAPE. 20 U.S.C. §1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528 (2005); Bd. of Educ. v. Rowley, 458 U.S.176 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP, which is reasonably calculated to enable the student to receive educational benefit. See Rowley; 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. The student’s recommended program must also be provided in the least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).

In Endrew F. v. Douglas County School District, 580 U.S. 999, 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, as 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.”

Pursuant to New York Education Law §4404(1)(c), the board of education shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasion and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires the trier of fact to find that the existence of a fact is more probable than its nonexistence. Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993). In other words, preponderance of the evidence is evidence that is more convincing than the evidence offered in opposition to it. Greenwich Collieries v. Director, Office of Workers’ Compensation Programs, 990 F. 2d 730, 736 (3rd. Cir. 1993), aff’d, 512 U.S. 246 (1994).

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s 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. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993).

Under the second prong of the Burlington/Carter test, the parents bear the burden of proving the appropriateness of the unilateral placement. See M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that unilateral placement offered an educational program designed to meet the Student’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

With respect to residential placements, the Second Circuit has stated that "[w]hile some children's disabilities may indeed be so acute as to require that they be educated in residential facilities, it is appropriate to proceed cautiously whenever considering such highly restrictive placements.... The norm in American public education is for children to be educated in day programs while they reside at home and receive the support of their families" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 132).  A residential placement is not appropriate unless it is required for a student to benefit from his or her educational program (M.H. v. Monroe-Woodbury Cent. Sch. Dist., 296 Fed. App'x 126, 128 [2d Cir. Oct. 7, 2008]; Walczak, 142 F.3d at 122; Mrs. B., 103 F.3d at 1121-22; see Educ. Law § 4402[2][b][2]; 34 CFR 300.104; 8 NYCRR 200.6[j][1][iii][d]).  In general, the Second Circuit has required objective evidence that a student cannot obtain educational benefit in a less restrictive setting before finding that a residential placement is required by the IDEA (M.H., 296 Fed. App'x at 128; Walczak, 142 F.3d at 131-32; see MN v. Katonah Lewisboro Sch. Dist., 2020 WL 7496435, at *9 [S.D.N.Y. Dec. 21, 2020]).  Additionally, State law requires that in order to properly recommend a residential placement, a district must make the determination that there is no appropriate non-residential school available consistent with the needs of the student (Educ. Law § 4402[2][b][2]).

Regarding the placement of students with disabilities, N.Y. Comp. Codes R. & Regs. tit. 8 § 200.6(a)(3) states: “Students with disabilities placed together for purposes of special education shall be grouped by similarity of individual needs as defined in section 200.1(ww) of this Part, in accordance with the following: (i) The range of academic or educational achievement of such students shall be limited to assure that instruction provides each student appropriate opportunities to achieve his or her annual goals. The learning characteristics of students in the group shall be sufficiently similar to assure that this range of academic or educational achievement is at least maintained. (ii) The social development of each student shall be considered prior to placement in any instructional group to assure that the social interaction within the group is beneficial to each student, contributes to each student's social growth and maturity, and does not consistently interfere with the instruction being provided. The social needs of a student shall not be the sole determinant of such placement. (iii) The levels of physical development of such students may vary, provided that each student is provided appropriate opportunities to benefit from such instruction. Physical needs shall be considered prior to determining placement to assure access to appropriate programs. The physical needs of the student shall not be the sole basis for determining placement. (iv) The management needs of such students may vary, provided that environmental modifications, adaptations, or, human or material resources required to meet the needs of any one student in the group are provided and do not consistently detract from the opportunities of other students in the group to benefit from instruction.”

Regarding least restrictive environment, N.Y. Comp. Codes R. & Regs. tit. 8 § 200.1(cc) states that “Least restrictive environment means that placement of students with disabilities in special classes, separate schools or other removal from the regular educational environment occurs only when the nature or severity of the disability is such that even with the use of supplementary aids and services, education cannot be satisfactorily achieved. The placement of an individual student with a disability in the least restrictive environment shall: (1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home.”

FINDINGS OF FACT

At the beginning of the School Year, the Student was a REDACTED year old boy entering the first grade. (Ex. C-1) The Student is described as easygoing and pleasant with the following behavioral and academic challenges: (Id; Ex. B-3, C-3, H-2, H-8, K-5)

• • Academic and language delays;
• • Struggles with critical thinking and comprehending directions;
• • Easily distracted/frustrated and struggles to focus, or problem solve at an age appropriate level;
• • Lack of body awareness and social skills when interacting with his peers;
• • Stuttering, incoherent/delayed responses and other language impairments;
• • Low-average gross motor skills;
• • Inattentive, anxious and impulsive On June 7, 2017, a psychological evaluation of the Student was conducted, and the Stanford Binet Intelligence Scale- Fifth Edition was administered with the following results: (Ex. B-1)
• • Cognitive functioning within the low average range;
• • Non-Verbal IQ at the average range;
• • Verbal IQ at the borderline range;
• • Visual-spatial processing skills at the low average range;
• • Relative strengths were shown in knowledge and working memory, and relative weaknesses were demonstrated on the fluid reasoning as well as quantitative reasoning domains, as his functioning fell within the borderline range.

During the 2018-19 school year, the Student attended a general education program at a nonpublic school, [REDACTED], where he received the following special education services: (Id B-2)

• • Special Education Itinerant Teacher Support Services (“SEIT”), five hours per week;
• • Speech-Language Therapy, 1:1, 1x30;
• • Occupational Therapy, 1:1, 2x30;

During the 2019-20 school year, the Student attended a general education program at a private nonpublic school with Special Education Teacher Support Services (“SETSS”) and speech and language therapy. (March 3 T 73; Ex. B-4))

On March 24, 2019, the District developed an IESP for the Student (“2019 IESP”) with a Disability Classification of Speech or Language Impairment. (Ex. B). The 2019 IESP recommends the following special education program and related services: (Ex. B-7)

• • SETTS, Direct Service, Group Service, two periods per week at a separate location;
• • Speech-Language Therapy, Individual Service, two times per week in 30 minute sessions at a separate location;

The Placement Recommendation section of the 2019 IESP states that the Student is Parentally Placed in a Non-Public School. (Ex. B-9)

On August 26, 2020, the Mother entered into a Student Contract with the Unilateral Placement. (Ex. D-1-D-3) The Unilateral Placement tuition amount is $100,000 for the school year of September 10, 2020 to June 14, 2021, with $5,000 attributable to religious instruction. (Ex. D-1, E)

The Student attended the Unilateral Placement during the School Year. (Ex. G) The Student’s Curriculum Schedule at the Unilateral Placement includes the following: (Ex. F)

• • REDACTED;
• • English Language Arts;
• • Library;
• • Current Events;
• • Social Skills/Sports Program;
• • Science;
• • Mathematics;
• • Meal Time: Social Integration;
• • Writing Workshop;
• • Specials: Music/Media Art;
• • Literacy;
• • Social Studies;
• • Speech Language Therapy, 2x30, Individual;

On September 16, 2020, the Mother submitted a letter to the District via fax. (Ex. I) The letter, dated August 31, 2020, states that the Student’s academic, social and behavioral needs are not being met in a general education classroom and requests that the District evaluate the Student and place him in a full time special education classroom. (Id)

In November 2020, the Unilateral Placement conducted an Assessment of Current Functioning and prepared a Functional Behavior Assessment and Treatment Plan. (Ex. H) The Assessment of Current Functioning was conducted using the Vineland-3 Domain-Level Interview Form. (Ex. H-11) The results are based on scores in three specific adaptive behavior domains: communication, daily living skills, and socialization. (Id) The Student’s scores in these domains corresponded to a percentile rank of eight or lower. (Id)

On November 29, 2020, the Unilateral Placement prepared a Teacher Progress Report. (Ex. H)

On December 16, 2020, the District developed another IESP for the Student which sets forth the same disability classification, special education program, related services, and placement recommendation as the 2019 IESP (“2020 IESP”). (Ex. C)

On December 31, 2020, the Mother submitted another letter to the District via fax with the heading “Ten Day Notice to the District”. (Ex. J)

On March 9 and May 9, 2021, the Unilateral Placement prepared additional Teacher Progress Reports. (Ex. H)

WITNESS TESTIMONY

Unilateral Placement Supervisor The Parent presented the testimony of the Unilateral Placement Supervisor at the hearing and by affirmation. (Ex. K) A summary of the relevant testimony of this witness includes the following:

The Unilateral Placement Supervisor has the following credentials: (Ex. K-1)

• • New York State licenses and master's degrees in general education, special education, and literacy;
• • Master's degree and license as a school building leader, which is a principal’s license;
• • Master's degree and license as a behavior analyst;
• • Pursuing a dissertation for a doctorate in educational leadership;

The Unilateral Placement Supervisor has been a professional in the field of education and special education for approximately nineteen years and a behavior analyst since 2007. (Id)

During the School Year, she was the program supervisor at the Unilateral Placement. (Id; March 3 T 71)

[REDACTED] is an umbrella special education program name, which houses special education classrooms in different general education school buildings. (Id) [REDACTED] is a nonpublic school. (Id 74)

The general education school is called REDACTED or REDACTED, and she is not part of their administration. (Id 71)

The Unilateral Placement is housed in the general education school, for grades 4th through 9th, for special education classes. (Id)

For each special education class on the second floor, there is a parallel class of general education on the first floor. (Id) This provides opportunities to engage with general education peers. (Id)

The Student was transferred to the Unilateral Placement from a general education program that closed in September 2020 on short notice. (Id 71-77) The Student did not have a public placement. (Id 73)

[REDACTED] opened a new special education program to accommodate a group of approximately 70 students from the closed school that required a special education setting, such as the Student. (Id) At the closed school, the class size that was no larger than 12. Id 76 There was a general education teacher, a SETSS teacher, and perhaps a related service provider. (Id) SETSS was provided in the classroom on a push-in basis. (Id)

The size of the Student’s class at the Unilateral Placement was no greater than 12 students, with a special education teacher. (March 3 T 77) The program is supervised by the BCBA and the counselor. (Id 78)

The program is based on ABA methodology which means that it is aligned with the general education curriculum, but modified based on an individualized program created for the Student. (Id)

The Unilateral Placement uses the rethink platform for data collection to monitor the Student’s program, including the behavior intervention plan and treatment plan. (Id 79)

The Student began the School Year with academic and behavioral challenges, and the Unilateral Placement Supervisor provided a detailed description of the Student’s progress during the School Year in the areas of reading, decoding, comprehension, math, and writing. (Id 80-84)

At the end of the School Year, the Student was still a grade level equivalent behind, but he made a full grade level of progress. (Id 83)

The progress is based on the direct instruction, contextualization, repetition, and reinforcement which is part of ABA program. (Id 84)

The Student has social challenges and struggles with peer communication. (Id 88-90)

The students at the Unilateral Placement are in a special education fulltime classroom and maintain IEP. (Id 92) The Unilateral Placement is not a gen ed program and doesn’t accommodate students with gen ed and just two times a week of a special education teacher. (Id) Students that attend the Unilateral Placement require fulltime special education. (Id)

The Treatment Plan developed by the Unilateral Placement is the Unilateral Placement’s integration of the Student’s District IEP. The Unilateral Placement follows IEP goals but does not create IEPs. (Id 92)

The District did not offer the Student a placement for the School Year and did not attempt to arrange an IEP meeting for the School Year because they were overwhelmed. (Id 93-6)

The District has scheduled an IEP meeting for the subsequent school year. (Id 95)

The Functional Behavior Assessment includes a Vineland and a Bader assessment. (Id 97)

In addition to the testimony at the hearing, the Unilateral Placement Supervisor’s affirmation included the following statements:

The REDACTED REDACTEDh Program was housed in a separate wing of a school called REDACTED REDACTED REDACTEDh, which is a general education program that existed prior to the creation of the [REDACTED]. (Ex. K-2)

Each class operated by the [REDACTED]had a corresponding general education class operated by [REDACTED]. (Id)

This allowed the students to have opportunities to integrate with his general education peers, including for religious studies, during our social skills program, and during mealtimes. (Id)

During the School Year, the Unilateral Placement consisted of approximately 35 students in grades k through 4. (Id)

During the School Year the Unilateral Placement Supervisor observed the Student and worked with his teachers to create and monitor his educational program. (Id K-3)

The Student was in a classroom with 6 students in total, all of whom had IEP’s and were receiving special education services. (Id K-6) There was a special education teacher in his classroom and an assistant at all times during secular instruction. (Id) The special education teacher was and is an appropriately licensed and certified special education teacher in the State of New York. (Id)

The Student also received related services including, Speech-Language Therapy, Counseling, Occupational Therapy, and a BCBA. All of the aforementioned related services providers were and are appropriately licensed and certified professionals in their respective fields in the State of New York. (Id)

The periods of instruction which were religious in nature are indicated on the Student’s schedule as “REDACTED”. (Id K-7)

Mother The Parent presented the testimony of the Student’s Mother at the hearing. The relevant testimony from this witness included the following:

The Parent Representative asked the Mother whether she received an evaluation or public school placement from the District in time for the start of the School Year. (Feb. 7 T 31)

The Parent Representative also asked whether she received a document called the Procedural Safeguards Notice from the Department of Education within a year prior to September 1st, 2020. (Id) The Mother responded no to both questions. (Id 31)

The Mother confirmed that she received Medicaid benefits during the School Year. (Id)

In March 2019, the Mother participated in an IESP meeting for the Student by telephone, and the Student’s speech communication challenges were discussed. (Id 34-5)

The Mother also participated in an IEP meeting for the Student in December 2021. (Id 33)

Approximately one month before the start of the School Year the Mother learned that the student’s school was closing, and she started looking for other schools as she did not have a public option. (Id 44-5)

The Mother learned about the Unilateral Placement from the Unilateral Placement Supervisor was a special education teacher at the closed school. (Id 46)

The Mother was also contacted by the principal at the Unilateral Placement. (Id 47)

She and the Student met with the principal at the Unilateral Placement and had a positive experience. (Id 49)

The Student did well at the Unilateral Placement and adjusted nicely. (Id) He learned academically and socially and received the speech that he needed. (Id)

The Parents understood that they were responsible for paying the tuition pending the results of the hearing. (Id 50-1)

The Parents made certain payments towards the tuition based on what they could afford. (Id)

The Parent Representative stated that the payments by the Parents were applied to the religious studies portion of the tuition. (Id 51, 21)

DECISION

The first prong of the Burlington/Carter analysis is whether the District has met its burden of proof regarding whether the Student was provided a FAPE for the School Year.

Based on a preponderance of the evidence standard, I find that the Student was not provided a FAPE for the School Year, primarily because the District did not present a case in this regard. By comparison, the Parent presented credible evidence regarding the Student’s academic and behavioral challenges and special education needs.

With respect to the second prong of the Burlington/Carter analysis, the issue for adjudication at the hearing was whether the Unilateral Placement was appropriate. Under the Burlington/Carter analysis, the Parent bears the burden of proof in this regard.

The evidence supports the Parent’s claim that the Student requires a special education classroom and related services. The evidence also indicates that the Unilateral Placement offers a special education program, and that the Student made progress at the Unilateral Placement. However, there are discrepancies in the evidence regarding the details of the Student’s special education program at the Unilateral Placement, including class size, class composition, student-teacher ratio, and related services.

The DPC states that the Student requires a 12:1:1 special education classroom. (Ex. A) However, the Student’s class size and student-teacher ratio at the Unilateral Placement is not explicitly stated in any of the documents prepared by the Unilateral Placement or otherwise sufficiently supported by evidence.

Regarding class size and composition, the Unilateral Placement Supervisor’s affirmation states that there were six students in the Student’s classroom at the Unilateral Placement, all of whom had IEPs and were receiving special education services. (Ex. K-6) At the hearing, the Unilateral Placement Supervisor testified that there were no greater than 12 students in the class. (March 3 T 77) Regarding class composition, the Unilateral Placement Supervisor testified that general education students were included in the Student’s class most of the time, which is not indicative of a special education classroom. (Id 78)

Regarding student-teacher ratio, the Parent Representative stated that there are two teachers in the Student’s class at all times. By comparison, the Unilateral Placement Supervisor’s affirmation states that there is an assistant in the class at all times during secular instruction. At the hearing, the Unilateral Placement Director testified that the Student’s classroom at the Unilateral Placement has a special education teacher, without mentioning an assistant. (Id 77) The evidence does not otherwise mention an assistant or second teacher in the Student’s classroom.

There are also discrepancies in the hearing record regarding other services offered at the Unilateral Placement, including BCBA supervision, counseling, paraprofessional and related services. For example, the Unilateral Placement Supervisor’s affirmation states that the Student receives “Speech-Language Therapy, Counseling, Occupational Therapy and BCBA services”. (Ex. K) However, the number of hours that the Student receives for each of these services are not otherwise supported by the evidence. In addition, the “Related Service” section of the Curriculum Schedule includes speech-language therapy but does not include counseling or any other related services. The 2019 IESP states that the Mother previously declined occupational therapy services for the Student. (Ex. B-4) The Parent Representative stated that the Student receives paraprofessional services at the Unilateral Placement, but paraprofessional services are not otherwise indicated in the evidence. The Unilateral Placement Supervisor also testified Orton-Gillingham instruction is provided at the Unilateral Placement (March 7 T 84), but Orton-Gillingham instruction is not otherwise indicated in the evidence.

Regarding religious instruction at the Unilateral Placement, the Parents contention that five percent of the tuition is attributable to religious instruction is not sufficiently supported by the evidence. For example, the Unilateral Placement Supervisor’s affirmation states that the periods of instruction which were religious in nature are indicated on the Student’s schedule as “REDACTED”. (Id K-7) The Curriculum Schedule includes “REDACTED” Monday through Thursday, but not Friday (Ex. F) By comparison, the Program Description states “our students pray every day”, and that religious instruction is incorporated into the music program. (Ex. D-5)

In concluding the second prong of the Burlington/Carter analysis, based on a preponderance of the evidence standard, I find that the Parent has met its burden of proof regarding the appropriateness of the Unilateral Placement. However, due to discrepancies relating to the description of the Student’s program at the Unilateral Placement, I find that direct payment for the full amount of the tuition is not warranted in this case.

With respect to the third prong of the Burlington/Carter analysis, which considers the equities of the case, I find that the equities favor the Parent. The District did not offer the Student an educational placement for the School Year, and the Mother was pressed to find a placement for the Student for School Year on short notice due to the closing of the Student’s prior placement at the beginning of the School Year.

The Mother participated in the Student’s IESP/IEP meetings and sent correspondence to the District stating her concerns regarding the Student’s educational program. There is no indication that the District responded to the Mother’s correspondence, and the District also did not appear for the hearing.

In concluding the Burlington/Carter analysis, I find that the Student was not provided a FAPE for the School Year and that the equities of the case favor the Parent, but that discrepancies relating to the Student’s educational program at the Unilateral Placement do not support an award of direct payment for the full amount of the tuition.

ORDER

Based upon the foregoing, it is hereby:

• • ORDERED THAT, the Student was not provided a FAPE for the School Year; and
• • ORDERED THAT, the District shall pay the Unilateral Placement for Seventy Five Percent (75%) of the Student’s tuition for the School Year; and

SO ORDERED

DATED: August 11, 2022

/s/ Sebastian A. Weiss

Sebastian A. Weiss

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.

PARENT EVIDENCE:

EX.

DATE

DESCRIPTION

PAGES

A 4/9/21 Due Process Complaint 4

B 3/24/19 2019 IESP 10

C 12/16/20 2020 IESP 9

D 8/26/20 Student Contract, Program Description, Curriculum 13

E 1/17/22 Tuition Affirmation 2

F 2020-21 Curriculum Schedule 1

G 2020-21 Student Attendance 1

H Various Assessments, Plans and Reports 38

I 9/16/20 Request for IEP and Placement 2

J 12/31/20 Ten Day Notice 2

K 3/3/22 Affirmation of Unilateral Placement Supervisor 8

DISTRICT EVIDENCE:

NONE.

Footnotes

[1] Exhibits, or “Ex.”, shall be referred to as follows: “P” for Parent Exhibits, which are otherwise indicated alphabetically; “D” for District Exhibits, which are otherwise indicated numerically; “JE” for Joint Exhibits; “CB” for closing brief; “IHO” for any Impartial Hearing Officer’s exhibits; and “T” for the hearing transcript, accompanied by the applicable hearing date.