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FINDINGS OF FACT AND DECISION
Case Number: 216299
Student’s Name: [Redacted]
District: [Redacted]
Hearing Requested By: Parents
Hearing Officer: Martin J. Kehoe III, Esq.
Actual Record Close Date: November 27, 2023
I. Introduction
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (“IHO”) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (“IDEA”) and the New York State Education Laws. The School District will be referred to as District, the parent(s) as Parent(s) and the student will be referred to as Student.
II. Overview This is a “reimbursement” case. A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her 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. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985). The analytical framework for deciding a reimbursement case is typically called a three-prong analysis.
This case involves a demand for tuition reimbursement for the 2021-2022 school year (“SY”). The Parents filed the complaint notice on September 9, 2021. (Ex. A). I was appointed as the IHO on September 21, 2021. A hearing was held across multiple dates.[1] The Parents introduced exhibits A-N into the record and called one witness: the Dean of Students at the Private School. The District did not offer any exhibits, nor did they have any witnesses testify on their behalf. Over the course of this proceeding the attendance was inconsistent. Ultimately a default was declared, and an inquest was held on August 28, 2023.
a. Parents’ Position The Parents allege that the District failed to provide the Student a Free Appropriate Public Education (“FAPE”) for the 2021-2022 SY. (Ex. A-1). Specifically, the Parents claim that the Committee on Special Education’s (“CSE”) program recommendation is “depriving the Student educational benefits and a FAPE, and the Parent of meaningful participation in the Student’s educational planning.” (Ex. A-3). The Parents note that the District “failed to develop a procedurally compliant and substantively appropriate individualized education program(“IEP”)”. (Ex. A-3). To remedy the above, the Parent seek reimbursement for the tuition costs associated with the unilateral placement of the Student at the Private School.
b. District’s Position The District did not present a case, introduce evidence, or bring any witness to testify on their behalf.
c. Background
of the Case On November 9, 2020, a CSE meeting was held to develop an IEP[2] for the Student. (Ex. 1-6). Following the meeting, the Parents allege that the District never sent an IEP, a Prior Written Notice (“PWN”) or a School Location Letter to inform them of their recommended program and placement for the Student. (Ex. 1-7). The Parents also allege that the Student’s classification was changed to a “traumatic brain injury” without notice. (Ex. 1-7).
The Parents responded on June 21, 2021, when they sent the District a ten-day notice letter 3 in which they rejected the recommendation and notified them of their intent to unilaterally place the Student at the Private School for the 2021-2022 SY. (Ex. C. 1-3). Finally, on September 9, 2021, the Parents filed the complaint notice. (Ex. A). Pendency was established early on in this matter by agreement. (See November 22, 2021, transcript page 6.)
d. Student History The Student was [REDACTED] years old at the start of the 2021-2022 SY. He is described as a student who is “friendly and polite [Student] who has acclimated well to the school environment” (Ex. B-5). The Student has been diagnosed with severe asthma, severe migraines, and suffered from a severe frontal lobe concussion after fracturing the bone around his eye. (Ex. D. 5-9). During the 2020-2021 SY, the Student carried a disability classification of Traumatic Brain Injury.[4] (Ex.
In the letter, the Parents wrote the following: The Parent disagrees with the development and appropriateness of the Student’s current individualized education program (“IEP”), which was developed in Nov. 2020, due to a lack of sufficient data, discussion, and reporting of the Student’s performance levels; generic goals and progress measuring methods; deficient degree of specialization and intensity of services, therapies, supports, modifications and accommodations to address the Student’s academic delays and learning needs; and recommendations were predetermined, in conflict with the evidence of the Student’s regression, and alternative programs were not considered. Most significantly, the DOE failed to educate the Student during all periods of remote learning, and then without any medical data or justification, changed his classification to a traumatic brain injury at the Nov. 2020 IEP meeting. While the DOE has not offered the Student an appropriate IEP and school placement, the Parent’s suggested placement is appropriate, as it has offered the Student an individualized program tailored to meet his needs and delays. (Ex. C.1) In the Student’s neuropsychological evaluation, the evaluator wrote that, “[the Student] is a reserved student who tends to keep to himself. His teachers would like to see him participating more during small group or whole class discussions in reading, writing or math” (Ex. D-6).
Academically, the evaluator concluded that [the Student] is “below grade level in reading, writing, and math.” (Ex. D. 5-6).
It is with this background that I now turn to the legal considerations of the IDEA.
e. Legal Overview As a legal overview, it is useful to understand the legal framework of the Individuals with Disabilities Education Act (“IDEA”).
A state receiving federal funds under the IDEA must provide disabled children with a free and appropriate public education (“FAPE”). Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). To ensure that qualifying children receive a FAPE, a school district must create an individualized education program ("IEP") for each such child. See 20 U.S.C. § 1414(d); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (describing the IEP as the "centerpiece" of the IDEA system). The IEP is "a written statement that sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that resulting impairments that adversely affect educational performance. The term includes open or closed head injuries or brain injuries from certain medical conditions resulting in mild, moderate or severe impairments in one or more areas, including cognition, language, memory, attention, reasoning, abstract thinking, judgement, problem solving, sensory, perceptual and motor abilities, psychosocial behavior, physical functions, information processing, and speech. The term does not include injuries that are congenital or caused by birth trauma. performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." D.D. ex rel. V.D. v. N.Y.C. Bd.
Of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006) (internal quotation marks omitted). The IDEA requires that an IEP be "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982). R.E. v. New York City Dep’t of Educ., 694 F.3d 167 (2nd Cir. 2012).
In New York, the state has assigned responsibility for developing IEPs to local
Committees on Special Education ("CSEs"). N.Y. Educ. Law § 4402(1)(b)(1); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 123 (2d Cir. 1998). CSEs are comprised of members appointed by the local school district's board of education, and must include the student's parent(s), a regular or special education teacher, a school board representative, a parent representative, and others. N.Y.
Educ. Law § 4402(1)(b)(1)(a). The CSE must examine the student's level of achievement and specific needs and determine an appropriate educational program. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir.
2007). R.E., 694 F.3d 167 (2nd Cir. 2012). If a parent believes that his child's IEP does not comply with the IDEA, the parent may file a "due process complaint" (a type of administrative challenge unrelated to the concept of constitutional due process) with the appropriate state agency. 20 U.S.C. § 1415(b)(6). In such cases, the IDEA mandates that states provide "impartial due process hearings" before impartial hearing officers ("IHOs"). Id. § 1415(f). Under New York's administrative system, the parties first pursue their claim in a hearing before an IHO. N.Y. Educ. Law § 4404(1). Either party may then appeal the case to the state review officer ("SRO"), who may affirm or modify the IHO's order. Id. § 4404(2). Either party may then bring a civil action in state or federal court to review the SRO's decision. 20 U.S.C. § 1415(i)(2)(A). R.E., 694 F.3d 167 (2nd Cir. 2012).
III. Prong I
a. Did the District Present a Prima Facie Case?
i. Legal Standard
1. Procedural Standard Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987).
In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007.
2. Substantive Standard IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must be able to “. . . offer a cogent and responsive explanation for their decisions . . .” Endrew F., Supra.
ii. Analysis
I first look to the Parents’ allegations to determine the scrutiny to apply in evaluating the District’s presentation. The complaint notice was explicit about the following issues:
10. For the SY at Issue, the DOE failed to develop a procedurally compliant and substantively appropriate individualized education program (“IEP”), depriving the Student educational benefits and a FAPE, and the Parent of meaningful participation in the Student’s educational planning.
11. Further, due to the DOE’s historic FAPE failures, the Student requires an educational program that both meets his cognitive learning needs and potential and addresses his need for integrated remedial instruction to address the Student’s academic delays that have accumulated over the course of years of inappropriate services.
12. The Parent seeks declaratory and equitable relief in support of her unilateral placement of the Student at [the Private School], including funding for the Student’s extended school year “ESY”) . . , and appropriate transportation services for her requested placement. This is the backdrop in which I weigh the District’s recommendations, ever mindful that the District has the burden of proof. In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537. The District conceded Prong I to the extent that they did not defend the/any recommended program or placement. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 111 2016 U.S. App. LEXIS 9239. There was no testimony indicating the nature of the CSE deliberations, or even if such deliberations occurred. Rather, I am left to speculate concerning the particulars of the review process, the rationale employed by the CSE members and the discussions that may or may not have contributed to a final recommendation. Further, given the myriad specific substantive allegations against the school, and the complete failure to defend, I find that the District fell short of their burden in this case.
iii. Conclusion
Upon review, I find that the District failed to demonstrate that they met their burden in providing the Student an IEP tailored to meet his individualized needs. I, therefore, rule for the Parents on Prong I.
IV. Prong II
a. Legal Issue: Did the Parents Establish the Appropriateness of the Private School?
i. Legal Standard Having determined that the District failed to support the provision of a FAPE in the least restrictive environment (“LRE”) for the 2021-2022 SY, the next inquiry focuses on whether the parent's unilateral placement of the student at the Private School was appropriate. In doing so, I must consider whether the Parents met their burden of proving the appropriateness of the unilateral placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:
. . . [P]arents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006]
Moreover, parents "may not be subject to the same mainstreaming requirements as a school board."
Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").
ii. Analysis
The recommendations of the neuropsychologist
The Neuropsychological report identifies the Student’s unique needs and makes a specific recommendation consistent with the program that the Parent identified. From the report (Ex. D-26):
Overall, [the Student] presents with a combination of difficulties that markedly interfere with developing his academic skills; at the same time, many areas of average to high average skills indicate much greater cognitive and educational skills. He presents with speech and language delays as well as specific learning disabilities in reading, writing and math He also presents with a history of traumatic brain injury (concussion) which has further compromised his functioning leading to difficulties in attention, memory and executive functioning. Diagnostic section above describes the nature and extent of these difficulties. In addition to his language, attention, and specific learning disabilities the sequalae of his concussion (TBI) has led to additional educational challenges including increased difficulties with sensory integration, verbal memory, marked sensory concerns, sleep issues and personality changes. PTSD symptoms further complicate his overall functioning.
The report culminates 2wiith a specific recommendaqtio0n for a type of school.
Overall, [the Student] presents with a combination of difficulties that markedly interfere with his ability to function in an academic setting without marked additional supports and needs a specialized classroom and school setting that has the resources and expertise to address the combination of these difficulties. Given the extent and nature of the difficulties described above, [the Student] requires a nonpublic school that has the resources to address the nature and extent of these difficulties. The school must also provide the speech and language, counseling, and related services consistently and reliably. In order for Jeremy to begin to adequately develop his academic skills and obtain access to the educational curriculum, he requires a small classroom setting that provides intensive individualized attention and support throughout the day through a remedial approach to teaching with special education teachers trained to work with children with emotional, attention and learning disabilities.
The type of school that should be considered is summarized below (with name of school omitted as it is the type of setting, not the specific school that needs to be considered).
Given his cognitive and memory difficulties, a twelve-month program is needed to prevent regression and loss of skills. (Ex. D-26)
Given the needs of the Student, I find that the Parent's unilateral placement of the student at the Private School was appropriate. In the paragraphs that follow, I take note of the characteristics of the Private School that fit with the Student’s profile from the Neuropsychological report.
The Dean of the Private School – Testimony
The Dean testified to the appropriateness of the Private School and spoke on the Student’s success while enrolled. The Dean holds both bachelor’s and master’s degrees in special education and has been a special education classroom teacher, before becoming an evaluator and then an administrator. (Ex. N-1). In her testimony the Dean offered background on the Private School and its specialized curriculum:
[The Private School] offers a language-enriched, specialized program with integrated therapeutic services and interventions to students with languagebased disorders, specific learning impairments in reading, writing, and math.
Many of our students also suffer from school performance anxieties as related to their learning struggles experienced in previous school environment . . . [the Private School] offers small class sizes with highly trained and qualified providers, which is our most important program attribute, because our students receive and benefit from substantial 1:1 attention throughout the entire school day, and that further enables their special education certified teachers to differentiate their particular instruction methods to meet the students’ needs . . . [the Private School] also offers therapeutic services that are incorporated into a customized plan for each student based on their need, which prevents the students from missing instruction to receive speech language therapy, occupational therapy, and reading intervention services. (Ex. N. 2-3).
The Dean was familiar with the Student, who had transferred to the Private School in November of 2020. She directly observed the Student in the classroom, met regularly with his providers, reviewed informal and formal assessments, reviewed his most recent neuropsychological report and communicated with his parent. (Ex. N-3). The Dean testified that the Student had “significant impairments in reading, writing, and math, a Language Disorder, an Attention Deficit and Hyperactivity Disorder – Inattentive Type, and a Developmental Coordination Disorder.” (Ex. N-3). In her opinion the Student required the most remediation in the “the developmental of his receptive and expressive language skills, pragmatic language skills, his vocabulary, reading comprehension, and written expression.” (Ex. N-4).
While at the Private School, the Student studied ELA, Algebra I, Global History II, and Biology in either 6:1 or 7:1 classroom. (Ex. N-4). He also received the following services:
• Reading Instruction – three times per six-day cycle; 40 minute sessions with a certified literacy specialist.
• Occupational Therapy – once individually per cycle; 40 minute sessions
• Speech Therapy – twice in a small group per cycle; 40 minute sessions. The curriculum the Student was given was specialized for him to provide “challenging content consistent with his learning potential and grade level, differentiated to meet his learning needs specific to each area of instruction.” (Ex. N-5). The Dean testified that the Student benefitted from a modified pace of instruction, individualized attention, and other learning techniques that proved effective. (Ex. N-5). The Student’s services and resource room helped him specifically target areas of weakness in his reading, writing, and math skills. (Ex. N. 5-6). The Private School administered school wide assessments in core areas to track progress; the Private School also tracked progress through teacher assessments and anecdotal data. (Ex. N-6). Speaking on the Student’s progress, the Dean testified: [The Student] progressed in all areas during the 2021-2022 school year. He successfully completed Algebra I and generally advanced his mathematic skills. [The Student] progressed in the development of his writing expression skills by expanding the use of his vocabulary to reduce repetition, by improving his sentence composition, and by organizing and completing a five-paragraph essay with a well-developed thesis and supporting content. [The Student] showed significant reading comprehension progress. He demonstrated the ability to consistently and independently utilize strategies to improve and monitor his understanding of passages, and to quickly identify textual evidence to develop and support his analysis of the materials. He continues to develop and better vocabulary, which in turn, has improved his overall fluency and comprehension. (Ex. N-6).
Her testimony was thorough and compelling.
iii. Conclusion
In addition to considering the testimony and observations of the Dean, I am mindful of the unique and complicated profile of the Student as outlined above in the “Student History” and is amplified throughout the record. To conclude, I agree with the statement of the Dean that the Student benefitted at the Private school.
Thus, I find that the Private School provided educational instruction specially designed to meet the unique needs of the Student. I credit the Parents’ exhibits and witnesses for articulating the appropriateness of the placement in addition to the Student’s progress. The Parents have met their burden by establishing that such services were necessary to permit the Student to benefit from instruction. I, therefore, rule for the Parents for Prong II.
V. Prong III
a. Legal Issue: Did the Parents Cooperate with the District?
i. Legal Standard A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents where equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch.
Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192).
"Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148 5). The burden of proof
5 § 300.148 Placement of children by parents when FAPE is at issue.
(a) General. This part does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency must include that child in the population whose needs are addressed consistent with §§ 300.131 through 300.144.
(b) Disagreements about FAPE. Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in §§ 300.504 through 300.520.
(c) Reimbursement for private school placement. If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs.
(d) Limitation on reimbursement. The cost of reimbursement described in paragraph (c) of this section may be reduced or denied (1) If - (i) At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).
Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (20 U.S.C. § 612[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) (ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section; (2) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in § 300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or (3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents.
(e) Exception. Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement - (1) Must not be reduced or denied for failure to provide the notice if - (i) The school prevented the parents from providing the notice; (ii) The parents had not received notice, pursuant to § 300.504, of the notice requirement in paragraph (d)(1) of this section; or
(iii) Compliance with paragraph (d)(1) of this section would likely result in physical harm to the child; and
(2) May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if - (i) The parents are not literate or cannot write in English; or (ii) Compliance with paragraph (d)(1) of this section would likely result in serious emotional harm to the child. (Approved by the Office of Management and Budget under control number 1820-0030) (Authority: 20 U.S.C. 1412(a)(10)(C))
ii. Analysis
The Parents sent a ten-day notice letter in a timely manner, expressing their intent to unilaterally place the Student at the Private School for the 2021-2022 SY. In the letter, the Parents informed the District that he would seek funding from the District for the placement. (Ex. B).
iii. Conclusion
Upon review of the record, I find that the Parents cooperated with the District and did nothing to impede them from developing an appropriate IEP for the Student. As such, I find no reason for a reduction in tuition reimbursement. I, therefore, rule for the Parents in Prong III.
It is therefore ORDERED
For the District, upon presentation of invoicing shall reimburse/directly pay the Parents for cost of tuition, related services, and reasonable transportation to and from the Private School, where they unilaterally placed the Student for the 2021-2022 SY.
Dated: November 27, 2023
Martin Kehoe, 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] A hearing was held across the following dates: October 22, 2021; November 22, 2021; February 10, 2022; May 25, 2022; July20, 2022; September 21, 2022; October 3, 2022; November 3, 2022; December 20, 2022; February 28, 2023; April 25, 2023; July 17, 2023; August 10, 2023; and August 28, 2023.
[2] The CSE team informed the Parent’s through counsel that they recommended the Student be placed in a 12:1+1 special education class for ELA, Math, Social Studies, and Science with deferral to the Central Based Support Team. Additionally, the team recommended the following related services.
[4] 8 NYCRR Part 200.1(zz)(12) Traumatic brain injury means an acquired injury to the brain caused by an external physical force or by certain medical conditions such as stroke, encephalitis, aneurysm, anoxia or brain tumors with B-1). In creating the Student’s IEP, the District utilized a variety of progress reports including iReady data, , review of medical documents, a physical examination, a psychoeducational evaluation, a social history update, transitional interviews of the Student and his Parents and a classroom observation.