Impartial Hearing Decision

Case No.: 555452

NEW YORK STATE EDUCATION DEPARTMENT

OFFICE OF SPECIAL EDUCATION

HEARING OFFICER DETERMINATION AND ORDER

In the Matter of a Complaint Pursuant to Part 200 of the Regulations of the Commissioner of Education regarding,

STUDENT^[1], a minor, by and through his/her Parent(s),

-against-

[REDACTED] SCHOOL DISTRICT

INTRODUCTION AND PROCEDURAL BACKGROUND

The District (sometimes referred to as “DOE”, “LEA”) appointed the undersigned to act as the impartial hearing officer (hereinafter, “IHO”) in a case brought under the Federal Individuals with Disabilities Education Act [20 USC § 1415(f)(3)] (hereinafter, “IDEA”) and the applicable provisions of the Regulations of the Commissioner of Education [8 NYCRR 200.5] (hereinafter, “Regulations”) by the parent(s) of the Student.

The Parent’s filed a due process complaint dated August 6, 2021. The due process complaint was subsequently amended by the due process complaint dated December 9, 2021. A substantive fact-finding hearing was conducted in the instant matter wherein testimony and evidence was collected^[2]. The undersigned held substantive hearing dates on March 16, 2022; March 17, 2022; March 22, 2022; March 29, 2022; and May 12, 2022. The undersigned also collected evidence in the form of District exhibits 1-33 and Parent exhibits A-L^[3]. The record ultimately closed on August 30, 2022.

The amended due process complaint alleges denials of Free and Appropriate Public Education (FAPE) for the 2019-2020, 2020-2021, and 2021-2022 academic school years. The parent seeks as remedy tuition reimbursement for the Student who is unilaterally placed. The denials of FAPE alleged by the Parent in the amended due process complaint is that the IEP dated January 8, 2020; for the respective years failed to offer the Student a program sufficient to make educational progress.

It is important to highlight that this matter has been pending beyond the original compliance timeline set forth by the Regulations. As was necessary and upon the application of the parties, the compliance deadline was extended to allow sufficient time for the parties to investigate the possibility of settlement and prepare for hearings. As was described on the record, these extensions were made only after careful consideration of the cumulative impact of the criteria set forth within the regulations (8 NYCRR § 200.5(j)(5)(ii)).

RELEVANT AUTHORITIES AND CONCLUSIONS OF LAW

The purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.” (Bd. Of Educ. V. Rowley, 458 U.S. 176, 179-91 (1982)) Implicit in the congressional purpose of providing access to a free and appropriate public education (hereinafter “FAPE”) is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicap child. (Id.)

Pursuant to 20 U.S.C. §1401(9) and 34 C.F.R. §300.17 FAPE is defined as follows:

Special Education and related services that are provided at public expense under public supervision and direction and without charge; meet the standards of the SEA… include an appropriate preschool, elementary school, or secondary school education in the State involved; and are provided in conformity with the individualized education program (IEP).

In deciding whether the Respondent provided a student with a FAPE, the inquiry is typically: (1) whether the Respondent complied with the procedures set forth in IDEA; and (2) whether the student’s IEP is reasonably calculated to enable the student to receive educational benefit (Rowley, supra.). Under the second prong, a school district need not maximize the potential of a child but must open the door of public education in a meaningful way, and the IEP must provide the opportunity for more than only a “trivial advancement” (P. v. Newington Bd. Of Educ., 546 F.3d. 111 (2nd Cir. 2008)).

The IEP is “the centerpiece of the statute’s education delivery system for disabled children” (Honig v. Doe, 484 U.S. 305, 311 (1988)). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides appropriate specialized instruction and related services (see 34 C.F.R. §300.320 (a)) For an IEP to be “reasonably calculated to enable the child to receive educational benefits,” it must be “likely to produce progress, not regression” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998)).

Additionally, each public agency must ensure that, as soon as possible following the development of an IEP, special education and related services are made available to the child in accordance with the child’s IEP. In order to implement the IEP, a team that includes the child's parents determines where the child should be placed based on the child's IEP. Thus, the placement should not dictate the IEP but rather the IEP determines whether a placement is appropriate. (Rourke v. District of Columbia, 460 F.Supp.2d 32, 44 (D.D.C. 2006)).

The District must ensure that the IEP team reviews a student’s IEP periodically, but not less than annually, to determine whether the annual goals for the child are being achieved. Moreover, the District must ensure that the IEP team revises the IEP, as appropriate, to address any lack of expected progress toward the annual goals; and the results of any reevaluation or information about the child provided to, or by, the parents. Additionally, if the parent obtains an independent educational evaluation (“IEE”) at public expense or shares with the public agency an evaluation obtained at private expense, the school district must consider the results of the evaluation, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child. The IDEA mandates that an IEP be based on the results of the most recent evaluation of a student.

In determining the appropriate placement for a child, preference is given to the least restrictive environment and the appropriate schools nearest the child's home (Id.). The IDEA requires that unless the IEP of a child with a disability requires some other arrangement, the child is to be educated in the school that he or she would attend if the student was otherwise not disabled. In selecting the least restrictive environment, consideration is given to any potential harmful effect on the child or on the quality of the services that he or she needs. A child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum (See 34 C.F.R. § 300.116).

When developing the IEP, the District will have evaluations of the child, as a procedural safeguard the parents are entitled, as a matter of law, an independent education evaluation (IEE) at public expense (34 CFR § 300.502)

Where a school system fails to provide special education or related services to a student with a disability, the student is entitled to compensatory education, “i.e., replacement of educational services the child should have received in the first place” (Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005). An award of compensatory education “should aim to place the disabled children in the same position they would have occupied but for the school district’s violations of IDEA” (Id.). Compensatory education is a remedy for “past deficiencies” therefore a finding as to whether a student was “denied a FAPE in the relevant time period is a necessary prerequisite to a compensatory education award.” (Peak v. District of Columbia, 526 F. Supp. 2d 32 (D.C. Cir. 2007).

Pursuant to New York Education Law §4401(c)(1) the District 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 that 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)).

Unlike other standards of proof, the preponderance-of-evidence standard allows both parties to share the risk of error in a roughly equal fashion, except that when the evidence is evenly balanced, the party with the burden of persuasion must lose (Director, Office of Worker’s Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 281 (1994)).

FINDINGS OF FACT AND DISCUSSION

The Student is eleven years old and has been diagnosed with Attention-Deficit / Hyperactivity Disorder and presents with delays across all domains, behavioral and social-emotional challenges. The consequences of this diagnosis and deficits cause substantial limitations on his ability to learn and necessitate intensive and special education support. The Student is classified as a student with an Intellectual Disability by the District. The Student requires individualized support from teachers and struggles to communicate clearly. In October 2019, the Parents obtained a private evaluation in order to gain more insight into the Student’s learning needs and deficit areas. The results of the evaluation indicated that the Student’s IQ is identified as moderately impaired or delayed range and that there was significant variability in his performance on the assessment tasks. The Student scored in the very delayed range in the area of fluid reasoning and, on the Woodcock Johnson Academic Skills assessment, achieved at the six-year-old equivalency level.

Similarities between the CSE proposed placement and the Parent’s unilateral placement In cases involving unilateral placements there are, of course, two appropriateness tests that must be considered. The first appropriateness argument is the CSE determination as it relates to the Prong One analysis of the Burlington/Carter analysis.

The IDEA envisions a collaborative approach where educators, evaluators, professionals, and family members engage in a meaningful discussion as to the student’s needs. Consensus and agreement are always preferable, in the end the CSE must make a determination that provides opportunities for educational success by considering the overall needs and deficits of the student.

The District argues in the instant matter that the placement selected by the Parent is similar to that of the District’s placement. The Parent argues that similarities cannot nor should it be quantified as “proof” that the District’s placement is appropriate.

The undersigned highlights this argument to make it clear to the reader that these similarities did not enter into the determinations made as it relates to the District’s obligation to provide a placement under its FAPE obligations. Similarities between the District’s proposed placement and the Parental placement cannot form a justification or “proof” that the District has met its obligations under the IDEA. This information as it relates to the District’s obligations to provide a FAPE has been afforded no weight for the Prong One determination. To consider it and to provide it weight would alleviate the District of the burden of demonstrating that it followed the procedures of the IDEA, reviewed the relevant anecdotal and diagnostic data and that the CSE engaged in a reasonable discussion as to the Student’s needs and deficits in order to formulate a reasonable plan for academic progress.

The District’s argument that these similarities are illustrative that the Parent’s true objection to the District’s placement was not the placement at all but rather the school itself is however an argument to explore especially when one considers equities.

The appropriateness of the unilateral placement that will be discussed in more detail later, however, it is a more relaxed standard and that is an acknowledgment that a Parental placement is exactly that a placement typically made by a parent who is likely not an educator and therefore should not be held to the higher standard of the District. Clearly the District when highlighting similarities cannot then argue that the placement is inappropriate (at least as it relates to those similar aspects)^[4].

PRONG ONE - PROVISIONING OF FAPE (APPROPRIATENESS OF THE CSE DETERMINATION)

The parent’s arguments as narrowed by the written briefs and summations submitted appear to the undersigned to largely echo themselves for each of the relevant school years for this determination.

Regarding the 2019-2020 academic year the Parents' arguments are that the District failed to provide ABA therapy in a systematic way and that the students in the 12:1:1 class were not functionally similar and the IEP generally failed to sufficiently address the learning and social emotional needs of the student. Regarding the 2020-2021 academic year the parents echo these above-mentioned issues while adding that the 12:1:1 program was too large for students as it would not have been able to provide individualized support to make progress. Regarding the 2021-2020 academic year the parents, again, echo the above issues.

While each year must stand on its own, clearly, there are interrelated issues that blend from year to year. The undersigned will attempt to isolate each issue for clarity of this discussion.

The Recommendation of the 12:1:1 placement The IDEA envisions an annual review process that allows stakeholders to meet and discuss the student’s progress, current needs and deficits. The process is intended to look at the student holistically and determine what is working, what is not, and what may need to be changed to further the education of the student. The approach is designed in recognition that a student’s education is a growth process that is highly unique and regular review is essential to assure those students who develop differently are not in a program that is not helping them.

The Student at the time of the first IEP in question was already in a class with 12 students. The CSE at that meeting determined that a 12:1:1 program was determined after they considered the Student’s academic, speech and language, fine motor and gross motor and determined that the Student required an intense level of academic support. (Transcript 174-75).

The CSE considered alternatives to the placement that was ultimately proposed. The CSE considered an ICT and an 8:1:2 class. These alternatives were ultimately considered inappropriate. The ICT class was determined to be too large and the 8:1:2 program included students with needs that were dissimilar to the Student. (Transcript 175-176). In furtherance of the 12:1:1 program that was selected by the CSE, the Special Education Teacher also testified with regard to the District’s 12:1:1 program and how small group and individualized instruction is part of the program (Transcript 353-374).

To be clear, neither the Parent nor the District disagree that the Student requires small class instruction. The testimony is such that the District and Parent at the meeting acknowledged additional interventions were required. The differences arise, primarily, that the CSE sought to make incremental changes whereas the Parents believed, perhaps, more substantive change was necessary^[5]. The CSE process is designed, in part, to provide incremental changes to Student’s IEP. In the instant matter the CSE, correctly, added additional interventions and increased instructional ratio to address the Student’s needs.

The social-emotional needs of the Student The District had multiple witnesses who testified with regard to the great lengths the CSE went to address [REDACTED]’s social-emotional needs (See, generally, transcript, 22-24;152-153; 173-174; 243-44). Moreover, as appropriate, the CSE’s recommended counseling services, social emotional goals, and other modifications and accommodations to address [REDACTED]’s needs (District Exhibits 1, 2, 3, 4, 5). Testimony was elicited with regard to how the 12:1:1 program and the goals on his IEP are aimed to address [REDACTED]’s daily living skills development (Transcript at 50- 51). The District’s program also provides [REDACTED] with the opportunity to have access to typically developing peers which provides students “peer models upon which they can look to to learn from” (Transcript at 340).

While the Parent argues the social-emotional needs were not met, the parent does not specify how the student’s deficits were not met with the planned interventions of the IEPs. Relying, in the view of the undersigned, that these needs were not met because the classroom setting was too large. However, again, the CSE when faced with a Student who is not progressing year over year is required to consider the Student’s needs and deficits and make reasonable adjustments to the Student’s program. These adjustments need not be dramatic but rather should be incremental to assure that the level of intervention the Student receives is consistent to assure academic achievement.

ABA Methodology as a Requirement in the IEPs The requirement of one teaching strategy or methodology over another is something typically left at the discretion of the educators. Absent a showing that a specific methodology is required for the Student to derive educational benefit, the CSE need not require one methodology over another. So, while one method of teaching may be viewed as optimal, it is not required to be part of a student’s IEP unless that methodology is essential to a student’s ability to make meaningful progress.

Considering the Student’s needs and developing a plan to address those needs is required, however, and failing to do so would result in a denial of FAPE. In the instant matter the Parents had an evaluation that recommended ABA. The unrefuted testimony is that the District considered the evaluation. With one witness stating:

“The committee doesn’t recommend methodology...we specifically discussed [the Student]’s needs and how those needs would be met. It says increasing his ability to pay attention for longer periods of time, which there is a goal for, to concentrate on what he is learning and to stay motivated, and the need for positive behavioral support was discussed also. So even if specifically, ABA wasn’t embedded into that IEP, the purpose that [the evaluator] recommended ABA was certainly satisfied within the IEP.” (Transcript at 108-109).

Testimony of district personnel also stated that the special class program is “very individualized” correlating this individualization with the ABA approach which is also individualized. The unrefuted testimony highlights that the program monitoring, positive reinforcement, and modifying instruction based on the student’s progress, are part of the District program and mirror ABA principles. (Transcript, pg. 246)

Special education teacher also bolstered this testimony by testifying that she utilized ABA methodologies as needed in her classroom. (Transcript pg. 352).

Mandating the use of a specific methodology may, at times, be appropriate. When the Student’s progress can only occur through the use of a specifical methodology it would be appropriate for the CSE to mandate that methodology in their program (and conversely not including it may arise in a denial of FAPE). The record, here, however is devoid of evidence that would suggest that CSE should have mandated a specific methodology in this case. While an evaluation did recommend ABA methodology the CSE, correctly, considered that recommendation and evaluation as whole and developed a plan to address the evaluator’s concerns within the context of this program and while the program, perhaps, cannot be considered an “ABA program” it does address the needs of this Student utilizing aspects of the ABA approach. Absent some data that would suggest an ABA program is essential to student progress, the CSE was correct in allowing teacher discretion as to teaching methods and approaches utilized on a day-to-day basis.

Other Claims not mentioned in the Petitioner’s Memorandum and Brief.

The Parents due process complaint makes multiple allegations that were not restated in the brief. This, I believe, is a recognition that the claims were unsupported by the record. However, regardless of the intent, they are mentioned here for the sake of completeness and to state that the record does not support relief under those causes of action.

Specifically with regards to predetermination, no record was created to demonstrate that the District predetermined the chosen placement. Quite the opposite, the unrefuted testimony is that multiple options were considered by the CSE and while the CSE departed from the parent’s preferred placement, that departure, without more, cannot constitute predetermination (see, Application of a Student with a Disability, SRO No. 21-019; T.F. v. New York City Dept. of Educ., 2015 WL 5610769 [S.D.N.Y. Sept. 23, 2015]; A.P. v. New York City Dept. of Educ., 2015 WL 4597545 [S.D.N.Y. July 30, 2015]; E.F. v. New York City Dept. of Educ., 2013 WL 4495676 [E.D.N.Y. Aug. 19, 2013] Sch. for Language & Commc'n Dev. v. New York State Dept. of Educ., 2006 WL 2792754 [E.D.N.Y. Sept. 26, 2006]).

The claim that the District failed to consider the parent’s private evaluation, again, is unsupported by the record. The witnesses testified, both on direct and cross examination, that the outside evaluator’s report was reviewed, discussed, and considered when developing the Student’s IEP. (Transcript, 43-50; 56; 73-77; 108-109; 117; 212-221; 416-420; 422-423). The testimony provided makes it clear that the private evaluation report was reviewed at the CSE and considered when developing the Student’s IEP. Further, the Student’s IEP reflects the information and recommendations detailed in the private evaluation report. (Transcript at 46-57; District Exhibits 3, 8). Departures from some or all of the recommendations of an evaluation must be supported by the data available to the CSE, but those departures do not mean that the evaluation was not considered by the CSE. Here it is clear that the report was considered and accepted in part (See A.M. v. New York City Dept. of Educ., 2015 WL 8180751 [S.D.N.Y. Dec. 7, 2015]).

The Parent’s complaint also stated that the parent did not receive an IEP or PWN, but this is unsupported by the unrebutted evidence in this matter (See District 32, 33). The Parent also raise in their complaint that the goals of the IEP are vague and not sufficiently measurable, again, this argument was not raised in the Brief and Memoranda and is only considered here to state that the District has met their burden in demonstrating through witnesses and evidence that the IEP and goals therein were drafted with specificity as to the student’s deficits, were created to address those deficits, and the IEP provided sufficient information on how those goals were to be measured (See District Exhibit 1, 2,3, 4, 5).

Conclusion as to Prong One

Based on the foregoing, it is the determination of the undersigned that the District has provided the Student with a FAPE for the 2019-2020, 2020-2021, and 2021-2022 academic school years.

PRONG 2 - APPROPRIATENESS OF THE UNILATERAL PLACEMENT

Having determined that the District has met its prong one obligation, further analysis is not necessarily required, however is included to aid the reader and any appellate authority.

With respect to the relief of tuition reimbursement, the regulations and case law are quite clear, the parent’s shoulder the burden of proving that the unilateral placement for the Student is appropriate. The case law that has developed is equally clear that the appropriateness of the unilateral placement is not as rigid as the Rowley standards for the District, the parent’s, however, must still prove that the unilateral placement is sufficiently unique to address the unique needs of the Student. Taking this one step further, the unilateral placement must not be a “one size fits all” approach but tailored to address the unique needs of the student and that this tailored instruction must show some benefit for the Student.

Parents need not show that the placement provides every special service necessary to maximize the student's potential. (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, “[u]ltimately, the issue turns on ‘whether that placement is "reasonably calculated to enable the child to receive educational benefits." (Frank G., 459 F.3d at 364; Gagliardo, 489 F.3d at 115).

The District acknowledges that the placements between the District’s placement and the Parental placement are similar. Despite the acknowledged similarities, the District argues that the Parent’s placement fails to meet the prong two burden. The District argues the Parent fails to demonstrate that the service providers are appropriately certified. The parents further acknowledge that the parental placement does not offer an opportunity with typically developing peers (See District Summations and Transcript at 500; 504). While no one area is dispositive as to what is appropriate, it is important to look at the parental placement within the view of the totality of placement including the benefits and progress that can be derived (or have been derived) and whether those benefits outweigh the deficits in order for the student to receive educational benefits from a program that is uniquely designed for the student (See generally, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007); Frank G. v. Bd. of Educ., 459 F.3d 356, 364-65 (2d. Cir. 2006)).

Students who attend the Parental Placement struggle mainly with Autism and/or a related disorder. (Transcript, pg. 437). The students in the program have significant language issues, and accompanying social, communication and behavior issues. Id. All staff members partake in monthly workshops with either the board-certified behavioral analysts, or a speech language pathologist, or a physical therapist that will give workshops on a variety of topics that pertain to the classroom and the students. Id.

The program at the parental placement is rooted in ABA methodology. As the program utilizes a significant amount of ABA, the program is also overseen by a BCBA (a different BCBA for each school year) who supports the implementation of ABA techniques and methodology.

Students at the placement are grouped based on their cognitive and social abilities (within 3 years of age), and students are placed into even smaller groups for academic instruction to provide differentiation. Students are assessed in the reading, writing, math, and social skills domains to help determine which track/group the student will be placed in. These small groups typically consist of 2-5 children, so that they can learn material that is prepared for their specific level. There is a lot of individualization in the instruction provided.

The Student began attending the placement in September 2019. The team who initially evaluated the Student took tools from their ABLES assessment and went over specific questions with the Student in different domains – social, academic, behavioral. The Student presented with low frustration tolerance, lack of focusing, and was prone to giving up. He required a lot of repetition and displayed poor auditory processing skills and had difficulty following basic directions. He presented with poor academic skills and was below grade level. Moreover, he had limitations in his attention and working memory, in so far as he was constantly thinking about something else and had difficulty understanding what was being asked of him.

Due to Student’s poor social skills, poor focusing, poor self-confidence, and poor muscle tone, The Student is required to be in an environment with a lot of motivational strategies. Therefore, at placement, he was placed in a classroom where he would receive the individualized attention and curriculum to meet his needs.

The Student entered the unilateral placement not being able to engage in social situations, not being able to cope with his frustration, and not able to access the curriculum. Over the course of all 3 years, the student made progress. The data and graphs of his assessment show clear growth in every area – socially, academically, and behaviorally. Additionally, progress was monitored via assessments after each lesson plan.

So, while the District has met their prong one obligations, similarly, I also find that the unilateral placement is appropriate.

PRONG THREE - EQUITABLE CONSIDERATIONS

With respect to the relief of tuition reimbursement, an assessment must be made as to equitable determinations. Similar to Prong one and two, no one factor is dispositive on this determination.

Over the progeny of cases, factors have been identified to consider when they exist in the case such as whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school or whether the Parent was cooperative with the District process in their efforts to meet their obligations under the IDEA (See E.M. v. New York City Dept. of Educ., 758 F.3d 442, 461 [2d Cir. 2014] and C.L. v. Scarsdale Union Free Sch. D., 744 F.3d 826, 840 (2d Cir. 2014).

This determination, in essence, is whether or not the parent’s acted in good faith with the district. Much like the District is required to not “pre-determine” a plan or placement before the IEP meeting, so too are the parents required not to “pre-determine” a particular placement of their child. This requirement embodies the idea that the CSE meeting is meant to be a collaborative approach where all parties are participating meaningfully.

The District acknowledges that the Parents followed the appropriate protocols of providing notice to the District of its intent to unilaterally place the Student at a non-public school (District Exhibits 20, 21, 22). The District argues that the Parent’s, however, never intended to have the Student enrolled in a public school placement and thus equities should limit or prohibit reimbursement. The District cites anecdotally that the Student’s siblings do not attend their public school placements and the fact that the parent’s rejected the school placement prior to the IEP and PWN being sent to the parents.

While the undersigned acknowledges that these two elements are an area of concern, the argument, without more, does not in the opinion of the undersigned rise to the level of “bad faith” or should otherwise bar or reduce reimbursement. The burden of proof and persuasion is on the District with regards to this matter and without additional evidence to suggest that the Parent went through the IEP process with no intent of enrolling the Student, I cannot find that there is an equitable bar to reimbursement.

ORDER

BASED ON THE FOREGOING, IT IS,

ORDERED that the District provisioned a Free and Appropriate Public Education for the 2019-2020, 2020-2021, and 2021-2022 academic school years as evidenced by the IEPs generated for their respective years; and it is further,

ORDERED that a FAPE having been provided in the aforementioned years the Parent’s request for reimbursement is denied as no cause of action exists as to grant relief.

Dated: September 8, 2022

Garden City, New York

Jeffrey Guerra, Esq.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

Footnotes

[1] Personally identifiable information is attached as an appendix to this decision and must be removed prior to public distribution.

[2] Included as part of the record, and herein incorporated by references are lists of all evidence collected with regard to this matter that was entered into the record. District evidence is denoted by numbered exhibits (i.e., Exhibit 1, 2, etc.) Parent evidence is denoted by lettered exhibits (i.e., Exhibit A, B, etc.). Evidence of the IHO is denoted by roman numerals (i.e., Exhibit I, II, etc.). Page numbers are listed for the convenience of the reader (i.e., Exhibit 1-2, A-2, or I-2 where “2” is the page number).

[3] On May 12, 2022, the Parents sought to introduce further evidence that was ultimately not added to the record. That discussion referenced the items as J and K, even though J and K were already introduced.

[4] The District does not argue that the similarities are inappropriate when considering prong two, however it is mentioned here for the sake of completeness.

[5] The Parent’s did not testify and therefore I rely on the papers and arguments as to their position.