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CASE NUMBER: 554240 - NYC: 210341
FINDINGS OF FACT AND DECISION
Case Number: 210341
Student’s Name: STUDENT
School District: REDACTED
Impartial Hearing Officer: Eryn DeFontes, Esq.
Date of Filing: 07/6/2021
Hearing Requested by: Parent
Dates of Hearing: May 9, 2022; June 6, 2022
Record Close Date: July 14, 2022
Date of Decision: July 15, 2022
NAMES AND TITLES OF PERSONS WHO APPEARED:
ON FEBRUARY 18, 2022
For the Student:
Parent Attorney I
For the Department of Education (“DOE”):
DOE Representative
ON MARCH 18, 2022
For the Student:
Legal Assistant For the DOE:
NONE
ON MAY 9, 2022
For the Student:
Parent Attorney II
Interpreter
Clinical Director For the DOE:
DOE Representative
ON JUNE 6, 2022
For the Student:
Parent Attorney I
Parent
Interpreter
Clinical Director For the DOE:
DOE Representative
BACKGROUND and PROCEDURAL HISTORY
This matter concerns the Student, a REDACTED classified as a Student with a Disability under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. The Student’s classification is not in dispute. Student currently attends a 12-month program at the REDACTED (“Attending School”). The Parent filed a due process complaint (“DPC”) on July 6, 2021 alleging that the DOE failed to provide Student with a free and appropriate public education (“FAPE”) for the 2021-2022 school year and requesting the following relief: a declaration that Attending School is an appropriate placement for the 2021-2022 school year, direct funding and/or reimbursement of all fees and costs associated with Attending School placement for the 2021-2022 school year, meal reimbursement and door-to-door special transportation in the form of a school bus, copies of Student’s past and future special education records translated into Spanish, and attorney’s fees (P-A).[1]
Impartial Hearing Officer REDACTED (“IHO I”) was appointed on July 8, 2021 and recused herself on August 5, 2021. IHO REDACTED (“IHO II”) was appointed on November 2, 2021. IHO II held a pre-hearing conference on February 18, 2022, a status conference on March 18, 2022, and presided over a pendency hearing and a hearing on the merits on May 9, 2022 and June 6, 2022 (“hearing dates”). On these dates, the Parent proffered exhibits A-N which were admitted into evidence. Parent presented one witnesses, the Clinical Director at Attending School. The Clinical Director testified and was cross-examined by the District on May 9, 2022 and June 6, 2022. The DOE offered no documents or witnesses. After the hearing dates, IHO II rendered neither a pendency order nor a final order and recused herself on June 13, 2022.
The undersigned impartial hearing officer (“IHO”) was appointed on June 14, 2022. At a status hearing held by the undersigned IHO on June 21, 2022, the Parent renewed their request for an order on pendency pursuant to an unappealed Finding of Fact and Decision issued by IHO I on April 4, 2022 in case 197508 (FOFD 197508) (Tr-Vol I pp.9,10). Based upon the record and evidence presented, the undersigned IHO issued a Pendency Order on June 28, 2022 (IHO- I) and an Interim Order on Transportation on July 1, 2022 (IHO-II).[2]
The undersigned IHO now renders this Finding of Fact and Decision upon review of the transcripts from the hearing dates and upon a review of all evidence admitted to the record.
JURISDICTION
This decision is rendered pursuant to the IDEA Act, 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200 and Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 (Section 504).[3]
LEGAL FRAMEWORK
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). Under the IDEA and New York law, where there is a procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a FAPE is significantly impeded, a hearing officer may find that a child did not receive a FAPE. See 20 U.S.C. § 1415 (f)(3)(E)(ii); 8 NYCRR § 200.5(j)(4)(ii).
The IDEA is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded a FAPE. See 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”). See 34 C.F.R. § 300.13. A FAPE is further defined as “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 Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). Two purposes of the IDEA 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 parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B).
A board of education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. See School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). These three conditions constitute the Burlington/Carter test in a tuition reimbursement case.
School districts have the burden of proof, including the burden of persuasion and burden of production in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. NYS Educ. Law § 4404(1)(c). The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).
FINDINGS OF FACT
Burlington/Carter Prong I: Failure to Provide a FAPE
A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 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)
In this case, the DOE neither denied nor conceded that it failed to provide the student a FAPE for the 2021-22 school year (Tr-32). Furthermore, the DOE did not present any evidence or witnesses in support of its Prong I burden.
The law recognizes that a Parent, regardless of their primary language, must be afforded the opportunity to participate in the decision-making process relating to their child’s special education recommendations, placements and services see 34 CFR 300.322(a); see also 300.322(e), which requires the public agency to “take whatever action is necessary to ensure that the parent understands the proceedings of the [CSE] meeting, including arranging for an interpreter for parents [who are hearing impaired] or whose native language is other than English".[4]
Notwithstanding the DOE’s failure to deny or defend FAPE pursuant to its burden to do so, the evidence clearly establishes that the Parent is “exclusively REDACTED speaking” (P-C p.2), and despite the Parent’s request to the CSE for translated special education records, the DOE did not provide translated copies of any special education documentation to the Parent, including copies of IEPs (P-E, P-H p.1; P-A pp.3, 4). Furthermore, the Student’s Bilingual Neuropsychological and Psychological Evaluation (“Evaluation”) recommended “support to communicate with [Parent] must be put into place, including providing access to an interpreter and school reports in REDACTED whenever possible” (P-C p.16 ¶7).
Additionally, the hearing record and documentary evidence show that the DOE failed to provide the Student with specialized education and related services designed to meet the student’s unique needs. For example, the Evaluation diagnosed the Student with PTSD, Major Depressive Disorder, Specific Learning Disorder with impairment in reading, Specific Learning Disorder with impairment in writing, and Parent Child Conflict (abuse from father) (P-C p.14). The Evaluation recommended a highly specialized therapeutic day school environment for students with ‘internalizing’ conditions (including trauma, anxiety and mood-based disorders) that provides academic support and therapeutic structure in the form of small student-to-teacher ratios (no larger than a 12:1 student-teacher ratio); “copious” social-emotional support throughout the day; regular individual and group therapy sessions; evidence-based treatment interventions including Cognitive Behavior Therapy (“CBT”); and ongoing access to trained mental health providers to monitor well-being, including suicidal ideations and possible self-harming behaviors (P-J p.2).
Parent provided this Evaluation to the CSE via email on January 20, 2021 (P-E). Despite the abovementioned diagnoses and recommendations, the CSE held an IEP meeting in January 2021 and simply carried over the recommendation from the March 2020 IEP: an ICT and a 12:1:1 ratio in a community school that did not include a behavioral support plan implemented by specially trained staff to address the Student’s intrusive thoughts, hallucinations, dissociative episodes, and other symptoms of PTSD documented in the Evaluation (P-H, P-A p.3). Furthermore, the school that the DOE proposed for the 2021-2022 school year, (“proposed school”) could not accommodate the Student, because, according to the evidence, it did not enroll 9th grade students (P-H pp.1,2, P-N p.2 ¶9, P-A). As a result, the Student’s IEP could not be implemented at the proposed school. The DOE did not dispute these facts or present evidence to the contrary.
Based upon the foregoing, the DOE’s failure to provide the Parent with copies of any of the Student’s special education documents in the Parent’s native language in addition to a failure to provide IEPs and placements reasonably calculated to enable the Student to receive educational benefits, resulted in a denial of FAPE for the 2021-2022 school year.
Burlington/Carter Prong Two: The Appropriateness of the Parents’ Unilateral Placement
When a parent unilaterally places their child in a private program and seeks funding and/or reimbursement for that program, they must demonstrate the program they have selected is appropriate to meet their child’s needs. A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F.3d 356 at 364). Parents are not barred from an award of tuition reimbursement or funding even if the private program does not meet the IDEA definition of a FAPE. The selected program need not employ certified special education teachers or develop its own IEP for the student, and parents’ selection of a program that has not been approved by the state does not bar reimbursement. Id. (citing Carter, 510 U.S. 7 at 14). Parents need not show that a private placement provides every special service necessary to maximize their child’s potential, but only that it is likely to produce progress and not regression and provides “educational instruction specially designed to meet the unique needs of the... child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007).
In this case, the Parent submitted ample documentary and testimonial evidence establishing that Attending School is an appropriate placement that provides the Student with educational instruction that is specifically designed to meet the Student’s unique educational needs, supported by services that are necessary to permit the Student to benefit from that instruction for the 2021-2022 school year. For example, the Evaluation diagnosed the Student with PTSD (P-C). The DOE did not dispute this diagnosis, nor did it proffer any evidence to refute the Evaluation results. An addendum to the Evaluation makes clear that the Student requires a highly specialized therapeutic school setting that provides a “warm, relationship-based, nurturing, therapeutic day school environment for students with ‘internalizing’ conditions, including trauma, anxiety and mood-based disorders” (P-J p.2).
According to the uncontroverted testimony of the Clinical Director, Attending School is a therapeutic college preparatory school that provides on-demand individual counseling comprised of clinical staff trained in evidence-based therapies for ADHD, anxiety, and mood disorders, in addition to small classes with an average of 5-10 students per class, resulting in a 4:1 student-to-staff ratio (P-C, pp.15-17, P-G). Attending School also provides an Advisory program which assigns each student an individual Advisor who meets with Students three times a day to help students maintain organization and coping skills (P-C pp. 5,14, P-F; P-G p.1). The Clinical Director further asserted that the teachers and providers at Attending School are sufficiently qualified, certified, and trained to meet the Student’s unique needs (P-M ¶¶ 14, 15 16, 24, 25).[5]
The hearing record further demonstrates that the Student made observable progress both academically and emotionally during the 2021-22 school year at Attending School due to personalized scheduling, small class size, daily study periods and access to evidence-based therapies such as Dialectical Behavior Therapy (“DBT”)[6] at Attending School’s counseling center (P-F, P-M pp.5-6). Correspondingly, the Evaluation notes:
“[Student] stated that [Attending School] has provided [them] with ‘the perfect amount of academic challenge,’ while giving [them] ‘a lot of support’ throughout the day, including teachers that ‘understand me’ and access to a counselor ‘whenever I need one’… [Student] reports feeling connected to [their] school… [the] teacher report indicates that [Student] has responded well to the therapeutic environment, with access to therapists throughout the day and opportunities to learn adaptive coping skills via evidenced based interventions” (P-C pp.4,13,14).
In contrast, prior to enrolling at the Attending School, the Student did not pass any classes during the last semester they attended the prior placement (P-G p.2).
The undersigned IHO finds the evidence credible to support that Attending School is an appropriate placement for the Student for the 2021-2022 school year, as Attending School addressed the Student’s needs in an individualized manner and provided the Student with the necessary services that would enable the Student to make progress. Therefore, Parent has met the second prong of the Burlington/Carter framework for tuition funding and/or reimbursement.
Burlington/Carter Prong 3: Equitable Considerations
When considering an award of tuition reimbursement, an IHO must also determine whether a balancing of the equities support the award, as “equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.” Frank G., 459 F.3d at 363-64; see also 20 U.S.C. § 1412(a)(10)(C)(iii). When a school district fails to provide a student with a FAPE and the private placement is found to be appropriate, “the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief”. Gagliardo, 489 F. 3d 105 at 112, citing Carter, 510 U.S. 7 at 16. “A major consideration... is whether the parents have cooperated [with the school district] throughout the process to ensure that their child receives a FAPE”. N.R. ex rel. T.R. v. Dept. of Educ., 2009 WL 874061, at *6 (S.D.N.Y. 2009) (citation omitted).
In this case, Parent, through their attorney, provided the DOE with the statutorily required ten-day notice, informing DOE that Parent would be placing the Student at Attending School for the 2021-2022 school year and seeking tuition funding for such placement (P-H); (20 U.S.C. § 1412(a)(10)(C)(iii)). (P-A, P-H).
The record further establishes that Parent incurred an obligation to pay Attending School $84,920.00 for the Student’s enrollment in Attending School’s 12-month program for the 2021-2022 school year as reflected in the enrollment contract (P-K). Tuition funding paid directly to a Private School is justified where parents have satisfied the Burlington/Carter test and have shown that they cannot afford to front the cost of their child’s tuition. See E.M. ex rel. N.M. v. New York City Dept. of Educ., 758 F. 3d 442, 452-454 (2d Cir. 2014); Mr. and Mrs. A., 769 F. Supp. 2d at 427; Connors v. Mills, 34 F. Supp. 2d 795, 804 (N.D.N.Y 1998). Parent’s testimony coupled with credible evidence in the form of tax returns demonstrates that Parent is financially unable to pay Attending School’s tuition costs. (P-N, P-B). Lastly, Parent asserted that they attended all IEP meetings and made the Student available for any DOE testing (P-N). The DOE presented no evidence to dispute that the equities favor Parent in this case (Tr-pp.11, 13).
Based upon the foregoing, the Student is entitled to an award for tuition funding for the Student’s attendance at Attending School for the 2021-2022 school year, to be paid directly to Attending School. See E.M. at 442, 453-54 (“direct payment fits comfortably within the Burlington/Carter framework: like reimbursement, direct payment to the private school that provided the required educational program… ‘merely requires [the school district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.’”) (quoting Burlington, 471 U.S. at 370-71).
Meals
Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, prohibits a recipient of federal funds from discriminating against an individual with a disability solely by reason of that disability. As such, a plaintiff must show that they (1) have a disability; (2) are "otherwise qualified" for the benefit that has been denied, and (3) have been denied the benefit by reason of the disability. See C.D. v. New York City Department of Educ., WL 400382 (S.D.N.Y. 2009) at 18.
In this case, it is uncontested that the Student has a disability. Furthermore, Parent testified that the Student qualified for free meals when attending DOE schools (Tr-12, P-N, P-H p.3). Lastly, Parent placed the Student in Attending School due to their disability and DOE’s failure to provide the Student with a FAPE (P-H, P-A). Consequently, the benefit of free meals that the Student enjoyed while attending DOE schools is not available at Attending School, which lacks both a free meal program and cafeteria (P-L pp.8, 11, P-N p.2). Parent, who is of limited financial means provided uncontroverted testimony maintaining that they spend approximately $10.50 per school day for the Student’s meals (P-N ¶10). Accordingly, it may appear that a “policy…is outwardly neutral—only students who attend participating schools can receive free meals. But this policy disproportionately affects disabled students, who are the only students who must choose between a FAPE at a non-participating school and free meals at a participating school that cannot meet their needs” Id. at 21.
Given that the Student qualified for free meals while attending DOE schools and, due to their disability and a denial of FAPE for the 2021-2022 school year, which necessitated their unilateral placement at Attending School, the Student is entitled to reimbursement for meals during in-person instruction days at Attending School.
Transportation The IDEA requires that a school district provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’... even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport” Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir. 1997) (internal citation omitted). Transportation may be deemed necessary “if in its absence a disabled child in private school would be denied ‘a genuine opportunity for equitable participation in [a special education program]’,... or special education program benefits “comparable in quality, scope, and opportunity for participation... [to those provided for] students enrolled in public schools’” Donald B., 117 F.3d at 1375 (internal citations omitted).
In addition, State law defines special education as “specially designed instruction... and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” Education Law §§ 4401[1], 4402[4][a]; see also Education Law § 4401(2); 8 NYCRR § 200.1[ww]).
Lastly, in a guidance document, the State Education Department has indicated that the CSE should consider and document a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, that the IEP "must include specific transportation recommendations to address each of the student's needs, as appropriate", and that when determining a student’s special transportation needs, such as the need for door-to-door transportation, it must document them ("Special Transportation for Students with Disabilities," VESID Mem. [Mar. 2005], available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf).
The hearing record in this matter demonstrates that the Student, who has been diagnosed with PTSD, experienced anxiety and panic attacks while traveling to Attending School via public transportation (the subway) (P-L, P-M, P-N). Although the District objected to Parent’s Special Transportation request and asserted that the Student was “doing well in school and [their] attendance is not an issue”, Attending School’s Clinical Director credibly testified:
“Both from my own discussions with [Student] as well as observations with [Student’s] mother shared directly with me, [Student] continues to experience PTSD while taking public transit to/from school. [Their] mother reported concern about [Student] feeling anxious and not paying attention to [their] surroundings…While on-demand supports have helped to de-escalate [Student’s] symptoms, such time inevitably takes away from [their] in-class opportunities. Public transit introduces a great deal of avoidable stress to [Student’s] school experience, and that type of distress is what necessitated [their] placement at ATTENDING SCHOOL and warranted an emotional disturbance classification in the first place” (P-M p. 6).
Based upon the foregoing, the undersigned IHO finds that the Student requires round-trip door-to-door special education transportation to and from Attending School to access their special education placement at Attending School.
Translation of Special Education Records
Parent is requesting translation of special education records, including meeting notices, notices of due process rights, IEPs, evaluations, and evaluation requests into Spanish, and for similar documents to be translated in the future (P-A, P-H pp. 1,2). The failure of the DOE to provide translated documents significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE.[7] In order to facilitate Parent’s meaningful participation, Parent’s request is granted to the extent that, pursuant to the relevant provisions articulated under IDEA, Parent is entitled to translated copies of the Student’s IEPs, IEP meeting notes, due process notices, including prior written notices and procedural safeguard notices, evaluation requests and evaluation results for the 2021-2022 school year, and going forward, the DOE shall provide such documents translated into Spanish for so long as Student is eligible for special education services pursuant to IDEA.[8]
Attorney’s Fees
Parent included a notice of claim for attorneys’ fees in their due process complaint (P-A). The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction. See 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006). Therefore, the undersigned IHO would be exceeding the permissible scope of authority by determining that Parent is the prevailing party entitled to costs. To the extent that Parent seeks reimbursement and/or payment of attorneys’ fees and costs from this IHO, their request is denied.
ORDER
Based on the foregoing, it is hereby:
ORDERED, that the DOE failed to provide the Student a FAPE for the 2021-2022 school year,
IT IS FURTHER ORDERED, that the DOE shall directly pay to Attending School the cost of tuition for the Student’s placement at Attending School for the 2021-2022 school year, in the sum of $84,820
IT IS FURTHER ORDERED, that the DOE shall provide to the Student round-trip, door-to-door special transportation services by school bus to and from Attending School,
IT IS FURTHER ORDERED, that DOE shall reimburse the Parent for the cost of meals for each day the Student received in-person instruction at Attending School during the 2021-2022 school year, at a rate of up to $10.50 per day, within 30 days of presentation of proof of in-person attendance for the 2021-2022 school year,
IT IS FURTHER ORDERED, that within 45 days of the date of this decision, the DOE shall translate into Spanish and provide to the Parent the following special education records dating from the beginning of the 2021-2022 school year to the date of this decision: IEPs, IEP meeting notes, due process notices, including prior written notices and procedural safeguard notices, assessments, and other evaluation materials used to assess the Student,
IT IS FURTHER ORDERED, that within 10 days of the date of this decision, the DOE shall provide the following special education documents in Parent’s native language to Parent, for as long as the Student is eligible for special education services under the IDEA: IEPs, IEP meeting notes, due process notices, prior written notices and procedural safeguard notices, assessments, and other evaluation materials used to assess the Student.
SO ORDERED.
DATED: July 15, 2022
__ErynDeFontes (Signed Electronically)___
Impartial Hearing Officer
Eryn DeFontes, Esq.
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.
APPENDIX – ADMITTED EXHIBITS
STUDENT v. SCHOOL DISTRICT
Parent
DATE
DOCUMENT
No. Of Pages
A 7/6/21 Hearing Request 6
B 2020 1040 2
C 1/11/21 Bilingual Neuropsychological and Psychological Evaluation 25
D 1/15/21 Teacher Report 6
E 1/20/21 Email to CSE: Submission of Neuropsychological and Psychological Evaluation 1
F March 2021 Attending School 7
G 6/9/21 Attending School 12 Month Program Support Letter 2
H 6/21/21 Ten Day Notice 3
I 6/21/21 Ten Day Notice Confirmation 1
J 6/25/21 Addendum to Neuropsychological and Psychological Evaluation 4
K 6/30/21 Attending School Enrollment Contract 4
L 4/11/22 Decision (FOFD 197508) 19
M 6/6/22 Affidavit of Testimony: Clinical Director 7
N Undated Affidavit of Testimony: Parent 2
DOE
DATE
DOCUMENT
No. Of Pages
NONE
N/A N/A N/A
IHO
DATE
DOCUMENT
No. Of Pages
I
6/28/22
Pendency Order
8
II
7/1/22
Interim Order on Transportation
6
APPENDIX
Redacted Information
Term Used In FOFD
REDACTED
Student
REDACTED
Parent
REDACTED
Parent Attorney II
REDACTED
Parent Attorney I
REDACTED
Legal Assistant
REDACTED
DOE Representative
REDACTED
Attending School
REDACTED
Clinical Director
REDACTED
Proposed School for 2021-2022
REDACTED
School District
REDACTED
IHO I
REDACTED
IHO II
REDACTED
prior placement
Footnotes
[1] The Hearing Officer Exhibits will be cited to as “IHO - followed by a roman numeral”; Parent’s Exhibits will be cited to as “P - followed by a letter”; and DOE Exhibits will be cited to as “D - followed by a number”. References to the hearing transcript will be cited to as “Tr - followed by a page number”.
[2] The hearing record established by IHO II remained open when the case was assigned to the undersigned IHO. The only additional exhibits admitted by IHO without objection are IHO exhibits I and II.
[3] Regulations implementing Section 504 in the context of educational institutions appear at 34 C.F.R. Part 104.
[4] See also NYCRR §§ 200.4(a)(9)(2); (b)(6)(i)(a)(xii); (g)(2)(ii); and200.5(a)(4); (d)(5); (f)(2), (3)(vi).
[5] The Student’s Advisor is certified in special education (P-M p.5¶ 24).
[6] Student’s Evaluation recommended DBT treatment to address Student’s anxiety symptoms and assist in managing challenges with emotion regulation adapting coping skills (P-C p.15).
[7] See 20 U.S.C.§ 1415 (f)(3)(E)(ii); 8 NYCRR 200.5(a)(4), 5(f)
[8] A student who is otherwise eligible as a student with a disability may continue to obtain services under the IDEA until the student receives either a local or Regents high school diploma, or until the conclusion of the ten-month SY in which the student turns age 21. New York State regulations further state that "[e]arning a Regents or local high school diploma shall be deemed to be equivalent to receipt of a high school diploma pursuant to Education Law, section 3202...and shall terminate a student's entitlement to a free public education pursuant to such statute". A student may still be entitled to compensatory educational services after graduation. 34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal Nos. 05-084; and 05-037; Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100; 8 NYCRR100.5[b][7][iii]; 34 CFR 300.102[a][3][i].